Great Chinese American Sewing Co.

National Labor Relations Board - Board Decisions

Jan 28, 1977

227 N.L.R.B. 1670 (N.L.R.B. 1977)

1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Chinese American Sewing Company; Esprit de
Corp and San Francisco Joint Board , International
Ladies Garment Workers Union , AFL-CIO. Cases
20-CA-9369 and 20-CA-9424
January 28, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND WALTHER
On December 2, 1975, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief. The General Counsel
filed limited cross-exceptions and a brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge only
to the extent consistent herewith.
The Administrative Law Judge found that, al-
though Respondents suffered substantial economic
loss in an 8-month period preceding their shutdown
of the Great Chinese American Sewing Company
plant (GCA) and had been urged repeatedly by their
accountant to close the GCA operation, the reason
for the GCA closure was not solely economic. That
i Respondents have excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the
record and find no basis for reversing his findings
The Administrative Law Judge dismissed certain paragraphs of the
complaint alleging violations of Sec 8(axl). See fns 6 and 8 of the
Administrative Law Judge's Decision As no exceptions have been filed to
these conclusions , we adopt them pro forma
2 We adopt the Administrative Law Judge's findings and conclusions that
Respondents ' business was integrated not only as to ownership but also as to
financial and other operations , including control of labor relations, through
Esprit de Corp's president, Tompkins (who was also Great Chinese
American Sewing Company's vice president) We find no merit in Respon-
dents' contention that these cases are controlled by Milo Express Inc and
Keystone Lawrence Transfer Company, 212 NLRB 313 (1974), in which the
Board found that the respondents were separate businesses Unlike the
subject case , in Milo Express the only significant evidence to support a single
or joint enterprise finding was that of common ownership
In finding that Esprit and GCA constitute a single employer, the
Administrative Law Judge relied, inter aha, on Altemose Construction
Company, 210 NLRB 138 (1974), enforcement denied on unrelated grounds
514 F 2d 8 (C.A. 3, 1975) The Board's decision on the single-employer issue
in that case remains valid
3 Cf Town & Country Mfg Co v NLRB , 316 F.2d 846 (C A 5, 1963),
enfg. 136 NLRB 1022,1028-31 (1%2)
Member Fanning would adopt the Administrative Law Judge's recom-
mendation that Respondents be ordered to reopen the Great Chinese
American Sewing Company plant, reinstate its employees with backpay, and
227 NLRB No. 248
the precipitating reason was the advent of the Union.
He therefore found that the GCA plant closure with
the consequent termination of employees violated
Section 8(a)(3) of the Act. To remedy the unfair labor
practices, he ordered that Respondents reopen GCA
and recognize and bargain with the Union.
Respondents argue, inter alia, that the recommend-
ed Order to reopen is punitive because it would cause
undue economic hardship. They argue that the order
to bargain is unwarranted because union representa-
tives and members had been guilty of flagrant strike
misconduct. Apart from arguing that Esprit has
sufficient domestic production for GCA, the General
Counsel does not refute Respondents' arguments of
economic hardship that reopening would entail. He
states in his brief, "To be sure, the Judge's recom-
mended order imposes substantial expense upon
Respondents, but this is merely the cost of remedying
the consequences" of Respondents' illegal acts. The
Administrative Law Judge adopted this view.
We do not adopt the Administrative Law Judge's
recommended Order that Respondents reopen the
GCA plant because, we hold, compliance with such
Order under the facts of this case would likely be
unduly burdensome3 and is unnecessary to effectuate
the policies of the Act.4 Rather than force the
reestablishment of an unprofitable operation, we find
that the policies of the Act will be sufficiently fulfilled
in this case by our full make-whole order covering the
employees of the terminated plant.
We agree with the Administrative Law Judge that
Respondents' unfair labor practices have been exten-
recognize and bargain with the Union as their exclusive representative. That
plant was an integral part of Respondents ' domestic production operations,
and Respondent Esprit de Corp continues to engage in such operations by
using subcontractors. Moreover, Respondents were willing and desirous of
continuing to operate that plant, provided only that its employees desisted
from their union activities , as is clearly shown by their unlawful offer of
substantial wage increases conditioned on the employees ' rejection of the
Union's overtures Such offer was made notwithstanding Respondents'
concern for the operating losses they were then mcurnng Although
Respondents contend that purchasing equipment necessary to resume
operations will impose an undue economic burden on them , much , if not all,
of those costs have already been offset by the proceeds of the sale of the
equipment upon the discriminatory closing of the plant Whatever shortfall
there may be is a result of Respondents' unfair labor practice, and should not
operate as a justification for not requiring Respondents to take the actions
necessary to remedy the unfair labor practices found herein In all the
circumstances of this case, Member Fanning is persuaded that resumption of
the discriminatorily closed operations is necessary if the Board is to provide a
remedy for all of the unfair labor practices committed by Respondents.
4 The Administrative Law Judge's reliance on cases in which the Board
ordered reopening is misplaced . Townhouse T. V. & Appliances, 213 NLRB
716 (1974), not enforced on this point 531 F.2d 826 (C.A. 7, 1976), and N C
Coastal Motor Lines, Inc, 219 NLRB 1009 (1975), enfd. 542 F.2d 637 (C A 4,
1976) In Townhouse, supra, the Board found that the employer 's business had
been economically profitable and a substantial outlay was not required to
start anew (The Court of Appeals for the Seventh Circuit denied enforce-
ment on this point, holding that the capital outlay ($16,000 ) and other costs
attendant on resumption of operations would be too financially burdensome
to the employer ) In N C Coastal Motor Lines, supra, the employer had not
entirely discontinued its trucking operation and the Board determined that
resumption would cause only minimal problems.
GREAT CHINESE AMERICAN SEWING CO.
sive and pervasive, preventing a free election. Ac-
cordingly, we will issue a bargaining order to remedy
the unfair labor practices found. The record shows
that Respondents closed GCA without giving the
Union, the employees' majority representative, an
opportunity to bargain with respect to the plant
closure before it was effected. We find that this
conduct violated Section 8(a)(1) and (5) of the Act.5
AMENDED CONCLUSIONS OF LAW
In view of the above, the Administrative Law
Judge's Conclusions of Law are amended to add the
following paragraph as Conclusion of Law 5:
"5. By their unilateral action in closing the Great
Chinese American Sewing Company plant and con-
tracting out the work previously performed by GCA
employees without prior bargaining with the Union
concerning the decision to contract out the work or
the economic effects thereof on them, Respondents
have violated Section 8(a)(1) and (5) of the Act."
AMENDED REMEDY
We shall require that Respondents recognize and
bargain collectively with the Union, at the Union's
request, including bargaining concerning the decision
and effects of the plant closure on the GCA employ-
ees .6
We shall order Respondents to make whole all
employees employed at the Great Chinese American
Sewing Company who were discriminatorily termi-
nated on account of Respondents' closing GCA, for
any loss of pay suffered by reason of the discrimina-
tion against them by paying to each of them a sum of
money equal to the amount he or she would normally
have earned as wages from July 17, 1974, when
Respondents discharged the strikers, until such time
as each secures , or did secure, substantially equiva-
lent employment with other employers, computed in
accordance with the Board's usual formula set forth
in F W. Woolworth Company, 90 NLRB 289 (1950),
s Schwab Foods, Inc, d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976),
ALJD, 11,C,3, pars. 7, 8, 9; Trading Port, Inc., 219 NLRB 298, 300 (1975).
6 We adopt the Administrative Law Judge 's determination that the
circumstances of this case warrant a broad bargaining order . We find that
Respondents ' unfair labor practices were so pervasive as to tend to
undermine the Union's majority support We do not find that the strike
misconduct demonstrates "a total disinterest" by the Union in pursuing the
"peaceful legal process provided by the Act ..." Herbert Bernstein, Alan
Bernstein, copartnership d/b/a Laura Modes Company, 144 NLRB 1592, 1596
(1963) It does not warrant withholding an otherwise appropriate remedial
bargaining order.
We do not condone the Union's misconduct The incidents found by the
Administrative Law Judge are attributed mostly to unidentified pickets but
also to union agents Strike misconduct in this case was the subject of a
settlement agreement with respect to unfair labor practice charges against
the Union Other misconduct attributed to this Union in another case before
the Board, Triumph Curing Center, Inc., 222 NLRB 627 (1976), was settled by
court order enjoining the Union A further repetition of like conduct
attributable to the Union in any cases coming before the Board will be
scrutinized with a view to withholding our remedial processes
1671
and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
In the event that Respondents reopen the Great
Chinese American Sewing Company operation, we
shall order that Respondents offer to each of the
aforesaid discriminatorily terminated employees rein-
statement to his or her former position or, if such
position no longer exists, to a substantially equivalent
position, without prejudice to his or her seniority or
other rights and privileges. The strikers' backpay shall
be based upon the earnings which they normally
would have received from July 17, 1974, when
Respondents discharged the strikers,7 to the date of
Respondents' offer of reinstatement less any net
interim earnings, and shall be computed on a
quarterly basis in the manner set forth in F W.
Woolworth Company, supra, and Isis Plumbing &
Heating Co., supra.8
In ordering backpay and reinstatement for Frankie
Ma, whom Respondents discriminatorily discharged
on July 9, 1974, our Order directs that his backpay
will commence from July 9, 1974. In other respects,
backpay and reinstatement obligations imposed by
this Order on Respondents with respect to employees
discharged by virtue of the GCA plant closing are
equally applicable to Frankie Ma.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Great Chinese American Sewing Company and
Esprit de Corp, San Francisco, California, their
officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their activi-
ties on behalf of the Union.
(b) Threatening to discharge employees for engag-
ing in activities in support of the Union.
7 We modify the Administrative Law Judge 's recommended remedy
which dated the backpay period for the strikers from August 2, 1974, when,
he found, they applied at Esprit de Corp for reinstatement . Our modification
establishes the backpay period from July 17, 1974, when the employees were
discharged by virtue of the GCA plant closure . It is the Board 's rule that
employees who are discharged while on strike must make an unconditional
application for reinstatement to establish their right to their jobs and
resumption of wages, unless there is a showing that such application would
have been futile. Valley Oil Co, Inc, 210 NLRB 370 (1974) We find on this
record that any application would have been futile-the GCA plant having
closed
8 The record shows that , after the GCA plant closure, Respondents
transferred a few GCA employees to Esprit de Corp to complete GCA's
garment production . These employees are also entitled to the same
reinstatement rights and backpay as are the other GCA employees. However,
we shall order that their backpay commence from the date of their layoff
from Esprit after completion of the GCA work
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening employees that their paychecks will
be withheld unless they turn over to Respondents any
authorization cards they execute for the Union.
(d) Promising and then granting employees a pay
raise to induce abandoning support of the Union.
(e) Informing employees that the Great Chinese
American Sewing Company will close its plant unless
they abandon support of the Union.
(f) Discharging any employee for engaging in
concerted protected activity or for soliciting authori-
zation cards for San Francisco Joint Board, Interna-
tional Ladies Garment Workers Union, AFL-CIO,
or any other labor organization.
(g) Terminating any of their operations in retalia-
tion for activities of their employees in support of the
Union.
(h) Refusing to bargain in good faith with San
Francisco Joint Board, International Ladies Garment
Workers Union, AFL-CIO, including bargaining
about the decision to close the Great Chinese
American Sewing Company plant at San Francisco,
California, and the effects of said decision on the unit
employees.
(i) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with San Francisco Joint
Board , International Ladies Garment Workers
Union, AFL-CIO, as the exclusive bargaining repre-
sentative of their employees in the appropriate
collective-bargaining unit, including bargaining con-
cerning their decision to close the Great Chinese
American Sewing Company's San Francisco, Califor-
nia, plant and the effects of the plant closure on their
employees. The appropriate collective-bargaining
unit is:
All production and maintenance employees at
Great Chinese American Sewing Company's San
Francisco plant, excluding office clerical employ-
ees, guards, and supervisors as defined in the Act.
(b) Offer backpay and reinstatement to Frankie Ma
and all persons employed on July 12, 1974, at the
Great Chinese American Sewing Company (includ-
ing any on layoff status with reasonable expectancy
of recall or otherwise possessing employee status on
this date), and make them whole for any losses they
suffered by reason of the discrimination against them
in the manner set forth in the section of this Decision
entitled "Amended Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(d) Post at their premises in San Francisco, Califor-
ma, and forthwith mail to all affected employees,
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondents' authorized representative,
shall be posted by them immediately upon receipt
thereof, and be maintained by them for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dents to insure that said notices are not altered,
defaced, or covered by any other material. A copy of
said notice, duly signed in the same manner, shall be
immediately mailed to the last known address of each
person formerly employed (as described in par. 2(b)
above) at the Great Chinese American Sewing
Company.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
9 In the event that 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
National 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because of activities on
behalf of San Francisco Joint Board, Internation-
al Ladies Garment Workers Union, AFL-CIO
(herein ILGWU), or any other labor organization.
WE WILL NOT terminate any of our operations
in retaliation for activities of our employees in
support of ILGWU, or any other labor organiza-
tion.
WE WILL NOT interrogate employees concerning
their activities on behalf of ILGWU, or any other
labor organization.
WE WILL NOT threaten to discharge employees
for engaging in activities in support of ILGWU, or
any other labor organization.
WE WILL NOT threaten to withhold paychecks
from employees unless they turn over to us any
authorization cards they have executed for
ILGWU, or any other labor organization.
GREAT CHINESE AMERICAN SEWING CO. 1673
WE WILL NOT promise and then grant employ-
ees a pay raise to induce abandoning support of
ILGWU, or any other labor organization.
WE WILL NOT inform employees that the Great
Chinese American Sewing Company will close its
plant unless employees abandon support of
ILGWU, or any other labor organization.
WE WILL make whole Frankie Ma, who was
discharged on July 9, 1974, and those persons
discharged when we closed the Great Chinese
American Sewing Company plant in July 1974, for
any loss of pay resulting from their discriminatory
discharge. Backpay will run from the date of
discharge until such time as the aforesaid employ-
ees secure substantially equivalent employment
with other employers or, in the event we reopen
the Great Chinese American Sewing Company
plant, until we reinstate them.
WE WILL, in the event we reopen the Great
Chinese American Sewing Company plant, rein-
state each of the aforesaid employees to his or her
former position or, if such position no longer
exists, to a substantially equivalent position.
WE WILL bargain, upon request, with San
Francisco Joint Board, International Ladies Gar-
ment Workers Union, AFL-CIO, as exclusive
representative of employees in the appropriate
bargaining unit, including bargaining about our
decision to close the Great Chinese American
Sewing Company plant and the effects upon our
employees. The appropriate bargaining unit is:
All production and maintenance employees
of Great Chinese American Sewing Compa-
ny, San Francisco, California, excluding
office clerical employees, guards, and super-
visors as defined in the National Labor
Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights protected under the National Labor
Relations Act.
GREAT CHINESE
AMERICAN SEWING
COMPANY; ESPRIT DE
CORP
11 and 31, 1974 (the earlier one amended March 7, 1975),
and amended consolidated complaint issued on April 9,
1975, alleging that Great Chinese American Sewing Com-
pany and Esprit de Corp (called GCA and Esprit, respec-
tively, and collectively called Respondents) violated Sec-
tion 8(a)(l) and (3) of the National Labor Relations Act, as
amended, by creating the impression of surveillance of
employees' activities on behalf of San Francisco Joint
Board, International Ladies Garment Workers Union,
AFL-CIO, herein called the Union, interrogating employ-
ees concerning their union activities and those of fellow
employees, promising and then granting employees a pay
raise to induce abandoning support of the Union, threaten-
ing to discharge employees for engaging in activities in
support of the Union, threatening employees that their
paychecks would be withheld unless they turned over to
Respondents any authorization cards they had executed for
the Union, informing employees that GCA would close its
plant unless they abandoned support of the Union; by
discharging Frankie Ma because he engaged in union or
other protected concerted activities and by terminating
operations of GCA on July 17, 1974, with attendant
discharge of all employees, in retaliation for their activities
supporting the Union.
Upon the entire record in this case, including my
observation of the witnesses, and upon consideration of
briefs filed by General Counsel and Respondents, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS AND THE LABOR
ORGANIZATIONS INVOLVED
Esprit, a corporation engaged in manufacturing women's
apparel at its facility in San Francisco, California, annually
purchases supplies valued in excess of $50,000 directly from
suppliers located outside the State of California and
annually sells goods and services valued in excess of
$50,000 directly to purchasers located outside the State of
California. GCA, a corporation formerly engaged in sewing
apparel at its facility in San Francisco, California, sold
goods and services valued in excess of $50,000 to Esprit
during calendar year 1974. I find that Esprit and GCA are
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Union and its parent,
International Ladies Garment Workers Union, AFL-CIO,
are labor organizations within the meaning of Section 2(5)
of the Act.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at San Francisco, California, on various
dates during July 8-31, 1975, based on charges filed on July
' Par . IV of the amended consolidated complaint names three entities as
labor organizations jointly engaged in a representational plan. Of these,
Local 101 was not the subject of evidence and bears no further treatment
Reference to the International Union is only formalism based on admimstra-
Facts and Discussion
Esprit designs, produces, and distributes women's junior
fashion garments at premises on Minnesota Street. Its
stockholders are Douglas Tompkins (jointly with his wife),
Jane Tise, and Allen Schwartz. For domestically produced
tive notice See International Ladies' Garment Workers ' Union, AFL-CIO
(Georgetown Dress Corporation), 214 NLRB 706 (1974) The convenient
abbreviation "Umon" is limited to the San Francisco Joint Board (ILGWU),
as this entity solely emerges from the proofs with significant party standing
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparel lines Esprit utilizes sewing contractors to finish
garments from quantities of cut fabric.2 GCA originated
with ownership divided between Esprit, Carole Livingston,
Esprit's production manager, and interests of Jim Chin, a
sewing contractor. Corporate minutes treating ownership
participation by Esprit recite that "a principal business of
[GCA] will be . . . to provide preferred sewing services for
the requirements of [Esprit]." Subsequently GCA incorpo-
rated and Esprit purchased additional interest establishing
an ownership configuration from early 1973 onward of 90
percent by Esprit and 10 percent by Carole Livingston.
Near that time Mike Kozak was employed as president and
general manager of GCA, which occupied premises on
Washington Street outfitted with modern sewing machines
and related equipment necessary to handle, sew, trim, and
press garments. Virtually all GCA's work was provided by
Esprit as part of the latter's overall domestic production.3
Initial capitalization of GCA was $20,000 and at all times
during 1973 and 1974 working capital was infused by loans
payable to its stockholder Esprit 4 The outstanding loan
balance fluctuated from a low of $1,237 shown in the
unaudited financial statement for September 1973 to a high
of $100,014 shown similarly for July 1974. The March 1974
statement, transmitted July 22, 1974, showed net operating
loss for the month of $18,872 and a loan balance payable to
Esprit at the time of $75,157.
During June 1974 Tompkins (president of Esprit; vice
president and treasurer of GCA) created a management
team to analyze deficiencies in GCA's functioning and to
propose corrective action.5 Members were Larry Sanders,
Esprit's night manager for quality control and shipping,
Gerda Kainz, Esprit's assistant production manager, and
Henry Gruchacz, assistant to Esprit's president and substi-
tute general manager . Sanders assumed full-time operation-
al management of GCA, Kainz was to appear part-time
reviewing piecework sewing rates and recommending
production improvements while Gruchacz was to assess
general effectiveness of the program. Overt functioning by
the team commenced approximately July 1. Kozak was
directed to vacation at that time while subsidiary functions
of Floor Supervisors Handa Lai (Pui Yee) and Yook Yung
Lee (referred to formally in the record as Zock Zung Lee
and otherwise as Lani or Lonnie Lee) were theoretically
unaffected by the change.
On July 4 Frankie Ma had commenced extensive
distribution and collection of union authorization cards
among employees. This was primarily achieved on the July
2 The industry recognizes two modes of performance by such contractors.
unit shop technique whereby a garment is sewn to completion by one person
and section shop technique whereby a series of sewers, each performing
repetitive subassembly, produce the completed garment.
3 During a representative period GCA performed 17.6 percent of all
Esprit 's contract sewing Esprit also marketed several lines of imported
apparel which were completely produced overseas
4 Respondents' financial statements from the time of GCA's October
1972 incorporation were received in evidence During the period September
1972 to October 1973 GCA's gross income was inflated with production
bonuses totaling $66,104 paid it by Esprit for finished lots For convenience
only the years 1973 and 1974 are described in greater detail since a pattern or
financial management had sufficiently emerged to make those years
representative of operational losses
S All dates and named months hereafter are in 1974, unless indicated
otherwise
6 This observation by Handa is the basis for subpar . X(a) of the amended
4 holiday (a Thursday), the weekend following, and at GCA
on July 5 and 8. Employees Lily Lee, Lam Bick Chung, and
Nam Hing Leung assisted him in the endeavor. Ma testified
without contradiction that while at work during the
morning of July 8 he was pointedly observed from 20 feet
by Handa Lai in the act of receiving one of the authoriza-
tion cards (blue green in color) back from an employee.6
Ma delivered an accumulation of executed authorization
cards to the Union's office and a resultant written demand
for recognition was sent GCA on July 12. Recognition was
declined by letter of GCA's counsel dated July 15 and the
Union filed a representation petition the following day.
GCA employed 102 persons during its payroll period
ending July 12 (including those working only a partial
workweek). This total included supervisors, specialty sew-
ers, bundlers, sewing machine mechanic, payroll bookkeep-
er, operators, trimmers , pressers, and janitors. An addition-
al 25 persons were shown on the payroll without earnings
for the week. By July 12 cards clearly authorizing the Union
to serve as collective-bargaining representative had been
signed by 83 persons, including 16 of the group with "zero
gross pay." GCA employees performed garment assembly
with commonality of supervision, wages, benefits, and
conditions of employment. A production and maintenance
unit with customary exclusions of office clerical employees,
guards, and supervisors is here appropriate for purposes of
collective bargaining. Mark J. Gerry, Inc. d/b/a Dove
Manufacturing Company, 128 NLRB 778 (1960). Kozak was
obviously a supervisor within the meaning of the Act while
Handa Lai is similarly excluded on the basis of testimony,
including her own, showing unroutine supervisory func-
tions involving independent judgment in assignment of
work to numerous sewers and their layoff or recall
according to production needs. Elizabeth Tan is excluded
as an office clerical employee. Deletion of these three from
the active payroll total of July 12 leaves a majority based on
67 cards in a unit of no more than 99 persons.?
Ma had been employed by GCA as a bundler since May
1972. His duties entailed unbundling cut garment compo-
nents and rebundling them, by size and color with appro-
priate ticketing, into a grouping sufficient to produce one
finished garment. Such bundles were supplied to operators
in commencement of the factory process leading to final
output. Sanders testified that within a few days of the
management team's appearance he focused on Ma's
bundling technique as an inefficient impediment to ade-
quate production. He visualized instead bundling together
consolidated complaint, alleging unlawful creation of the impression of
surveillance Without proof that she deliberately stationed herself to make
such observation, as contrasted to random glancing , this allegation fails as a
matter of law
7 Pik Yu Ko and Joseph E Sena were suggested to be supervisors but
their status is disregarded since it is without consequence to determination of
majority. Yook Yung Lee is excludedfor purposes of determining majority on
grounds that, while arguably a statutory supervisor , she signed an authonza-
tion card Her particular duties were not adequately described and a finding
either way would not affect the Union's majority No other purpose is served
by treating the issue of her supervisory status as assertion that she tainted
other cards by solicitation is wholly without evidentiary support Any card-
signing employee among the 67 who appeared with earnings on the July 12
payroll, but did not work on the actual date of July 12 itself, is shown by
uncontradicted evidence to have been on temporary layoffstatus unaffecting
inclusion in the unit Each of the 67 card-signing employees is listed by name
in the first portion of attached "Appendix A" [omitted from publication].
GREAT CHINESE AMERICAN SEWING CO. 1675
components for approximately 15 identical garments and
using this as the primary unit of handling during sewing
operations. Sanders testified to approaching Ma and by
adequate language communication stating he "would like
to institute a new bundling procedure because the one that
was happening was too slow and was very inefficient." He
recalled that Ma aggravatingly refused to change and
Kainz was enlisted to seek the change. Kainz testified that
she spoke inconclusively to Ma on a day following the July
6-7 weekend. She relayed his unwillingness to change after
"doing it for 3 years" to Sanders in completion of her "part
of it." Gruchacz testified that he ultimately spoke pleading-
ly with Ma on the subject (without recalling "the chronolo-
gy of it" but believing the discussion occurred on July 3),
finally extracting an assent (of which he advised Sanders) to
"do the new method." Sanders monitored the change on
July 5 and concluded Ma was resisting by withholding
normal dexterity and performing slowly. He described then
determining to recommend Ma's termination following an
emotional outburst among employees on July 8, reportedly
attributed to Ma's rumoring that Kozak would not return.
Sanders told this to Gruchacz who in turn contacted
Tompkins, leading to a mutual decision terminating Ma.
Sanders implemented this before Ma started work on July
9. Ma testified that he initially debated the wisdom of
switching bundling methods with Sanders, but ultimately
agreed to a contest which demonstrated his way was
speedier. He recalled appearing for work on July 9 to be
told by Sanders of layoff for stated lack of work.
On July 10 Tompkins caused preparation of a document,
written in English and Chinese, setting forth his position on
8 Shortly before this, it was reported to Tompkins that Handa Lai was at
odds with Yook Yung Lee and that the latter was promoting unionism On or
about July 10 Tompkins summoned Yook Yung Lee, together with her
daughter Lily Lee, to his office at Esprit Lily Lee testified that on this
occasion he asked if they (addressing mother and daughter) were involved
with union activity, stated that "If you scratch my back, I'll scratch yours,"
and advised he would grant a raise to employees Tompkins denies these
matters in testimony describing Lily Lee's presence as needed for translation
and that his purpose in so conferring was to sooth apparent frictions, to deter
Yook Yung Lee from soliciting for a union, and to advise that pay rates
might be elevated as part of a general effort toward improving operations.
Gruchacz, also present, generally corroborates Tompkins I credit Tompkins'
testimony respecting this incident and discredit Lily Lee, who was demon-
strated to be a highly unreliable witness By accepted facts the meeting did
not go beyond permissible objectives nor may it be said that reference to a
higher pay rate was associated with the Union I find insufficient proof to
support subpars X(b) and (c) of the amended consolidated complaint
9 Most of GCA's employees are Chinese with slight or limited fluency in
the English language . The language principally used by these employees is
the Cantonese dialect of Chinese. The mode of converting Tompkins'
remarks was interpretation and translated reutterance by Handa Lai from
English to Cantonese . On particular subjects Elizabeth Tan would, for
clarity, convert Tompkins ' English to the Mandarin dialect (in which Handa
Lai was also fluent) before final expression of meaning in Cantonese
Gruchacz , Sanders, and Kainz were each present at this meeting.
is This testimony is primarily the comprehension of Handa Lai's
Cantonese translation The testimony of record (through an interpreter) was
that a raise of 25 cents per hour would be given if employees did not join the
Union and that if they did join Tompkins would close GCA. Lam Bick
Chung , Gin Song Leung , and Sara Svidovsky also claim to have compre-
hended the same meaning from Tompkins ' English utterances before
translation (Tompkins concedes some departure from the prepared text of
the described document and the adding of "subtle points"). I believe the
employee witnesses are truthfully and accurately recalling what was
communicated in Cantonese by Handa Lai. I also accept their testimony that
it coincided in meaning with Tompkins' English version (referring only to
Lam Bick Chung , Gin Song Leung, and Sara Svidovsky) Their facility with
GCA's status and business future.8 This document formed
the outline for remarks he made to assembled employees of
GCA over the course of an approximately 45-minute
meeting held at the premises in late morning of July 12.9
Moon Har Chan Wong, Lam Bick Chung, Wai Fong Wong
Lam, Gin Song Leung, Sara Svidovsky, and Bione Y. Sue
each credibly testified that the translation of Tompkins'
remarks expressed a promise to raise the base hourly wage
of Tompkins' by 25 cents if they would, generally, collec-
tively forsake the Union, and a threat to close the business
if they persisted in seeking representation by the Union.io
Additional testimony of Lam Bick Chung and Wai Fong
Wong Lam relates to subparagraphs X(d), (e), and (f) of the
amended consolidated complaint. Chung recalled that,
after Tompkins' speech, Handa Lai appeared in the
department carrying paychecks. Chung exhibited expecta-
tion of receiving her check but instead experienced Handa
Lai's request that she sign her name, with associated inquiry
whether Chung had signed the Union's card. Chung denied
having done so and Handa Lai left without distributing
checks. After an interval she returned from the lower floor
to release checks and asked employees to sign their names
and addresses in replacement of lost records. Chung further
testified that subsequently on the same day Handa Lai
stated that, if an employee signed the Union's "greenish-
bluish" card then "on Monday you do not need to return to
work," while if they had not signed such card then "return
to work as usual ." Lam testified that on July 12 Handa Lai
requested a group of employees to give her any signed
"green" cards. Lam recalled that Chung, among those
present, asked for paychecks to which Handa Lai replied
English was demonstrated by cross-examination to be limited , but not so as
to cast doubt on this aspect of testimony Further, the more spontaneous
thrust of testimony by Tan, Kamz, and particularly Gruchacz tends to
confirm what the three employee witnesses thought was spoken in English
Bione Y. Sue testified in much the same vein, however, I am unconvinced
that her comprehension of English is sufficient to give weight to this aspect of
her recollection Significantly the document's text expresses $2 25 (a 25-cent
hourly increase) as management's "intention" respecting minimum wage for
operators and relates such a wage to "both union & non-union" factories,
alluding also to the prospect of "no" sewing shop absent profitability - a
condition which "shall" cause closing I am convinced the presence of such
key words and passages was the foundation from which bilingual threats and
promises arose Implicit in this factual resolution is my further belief that
Respondents ' witnesses are deceitful in their litanistic denials . As to Handa
Lai I emphatically discredit her denial that the Cantonese version was not as
testified to by six witnesses . I recognize the critical nature of this determina-
tion and the unusual dynamics present during the controlling moments of
July 12. Tompkins, a figure of some awe among personnel of GCA as their
big "boss," was appearing somewhat extraordinarily in the context of union
activities complicating the sudden presence of a management team While
the Chinese version of prepared text (established in the record as essentially
similar to what was composed in English and presumably available to, and
comprehensible by, Handa Lai) was extant, it is also true that Tompkins and
Handa Lai were interacting for the first time Handa Lai exhibited plain bias
in favor of Respondents and a nature that would suggest boldness in her
dominion over rank-and-file employees. She did, I believe, convey Tomp-
kins' message of a direct promise that wages would increase in exchange for
cessation of union activities and an express threat of plant closure retaliatory
of the employees' then known support for the Union. Of greatest importance
is Handa Lai's own understanding of Tompkins ' remarks, as clearly she felt
he was saying the plant would close upon advent of a union Thus viewed, the
statement concerning higher pay is a promise constituting violative restraint
while the threat of plant closing is a prediction of adversity without objective
factual basis. See Hertzka and Knowles, 206 NLRB 191 (1973 ), and cases
there cited. Accordingly, I find that probative evidence supports subpars
X(g) and (h) of the amended consolidated complaint.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"After you give me your signed [green ] cards" and walked
away. i i
On July 13 a meeting occurred at the Union's offices with
approximately 100 GCA employees in attendance. Union
Representative Ralph Smith moderated while Ma (then
terminated) and certain operators spoke of Respondents'
actions during the week. Discussion traversed principles of
protected union activity, potential unlawfulness of plant
closing , circumstances of Ma's termination , and Handa
Lai's remarks to employees concerning authorization cards.
In this context a strike vote was affirmatively taken. The
strike at GCA commenced on July 15 and continued there
an additional 2 days. On July 17 Tompkins decided to close
the plant and a notice to that effect was posted. This caused
the Union to shift primary attention to Esprit (approxi-
mately 4 miles distant) where picketing and related activity
commenced on July 18. Esprit sought legal relief in
proceedings culminating August 6 with issuance of a
preliminary injunction that limited the manner of picketmg
and restrained obstruction of business ingress and egress by
persons or vehicles.12 On October 11 the Union informed
Tompkins that its strike was "officially terminated immedi-
ately" upon his "acknowledgement" that approximately 75
listed strikers would be returned to work. The strike and its
spillover to Esprit had required prompt improvisation by
management. Sewing work in progress was diverted to
other contracters. Selected nonstriking employees were
employed briefly at Esprit premises over a short adjustment
period . During the fashion seasons following strike com-
mencement , Esprit's domestic output fell sharply in relation
to overseas production.13
Respecting the decision to close GCA, Tompkins narrat-
ed the considerations involved in testimony containing the
following passages:
The problems facing the shop . . . were principally
financial; but . . . for reasons that we didn't entirely
11 Lam 's described testimony is past recollection recorded. I attach
weight to it because of inherent probability from the overall fact situation,
because it is corroborated in substance by the persuasively accurate memory
of Chung, and because it is consistent with Handa Lai's inquisitiveness
concerning the extent of signing on "greenish -bluish" cards according to
credible testimony of Mee Yuet Yee Accordingly, I find that probative
evidence supports subpars X(d), (e), and (I) of the amended consolidated
complaint
12 Respondent contends that, irrespective of whether a majority was
established by the Union among GCA employees and other justification
present , no bargaining order should obtain because of conduct occurring in
connection with the strike and picketing This specific defense is premised on
Herbert Bernstein et al d/b/a Laura Modes Company, 144 NLRB 1592 (1963)
Proven facts relating to this defense cover several episodes or forms of
characteristic conduct On July 15 Union Representative Richard Sorro
pugnaciously forced William Oetinger, Esprit's quality control inspector,
against an outside wall at GCA and briefly prevented him (in front of
gathered pickets) by physical restraint from entering the plant On July 16
Union Representative Willie March angrily accused employee Fritz Schulz
of dropping a single edge razor blade toward him from a second floor
window of the GCA plant March followed this accusation by repeatedly
punching Schulz The beating occurred outside GCA' s rear entrance as
Schulz sought to reach work the second morning of the strike . Also on July
16 an attempt was made by Gruchacz , Sanders, and Peter Yee, a truckdnver
employed by Esprit , to carry garments into GCA for pressing Persons
known to be striking employees intercepted this effort and grabbed at
garments carried by Gruchacz as he strode toward the building He
attempted to break their holds by vigorous swiveling action , then chose to
return his armload of garments to the vehicle in which they were brought On
July 18 the first of many obstructive episodes occurred at Esprit A van
understand . . . this incentive system was not working
.... We'd hoped to instill some of it by raising the
base salary [and] convincing our employees that the
rates were fair . . . but we also considered that the shop
was in a precarious balance of whether we were going to
win this sense by each employee of getting behind,
enthusiastically behind, this system and making it work
for them; and, in light of the strike, a strike that frankly
took us totally unaware ... .
... There was my summing up of the strike and of
the activities of the strike and especially the mood and a
point of view that I saw employees taking at GCA and
on the street, on the picket line, to me demonstrated
that the - that our abilities to convince people to get
behind the system and to work for it, that the attitudes
didn't exist to make the system work immediately in the
future, and it was going to be a series of continual losses
and just putting us further and further into the hole and
with sort of the violent attitudes that I thought the
Union was taking in their approach to it, was not
encouraging any kind of good working, future working,
relationships between just the shop and the employees,
that people were polarized and divided into camps at
that point, and this was just a shroud that hung over the
entire business; and, m light of having lost money
continually, I felt that it was tine in terms of my
business responsibilities to my company, of which I act
as the president, that we would take our losses at that
point and call it quits, and it was on that basis that I
made my decision.
This summation by Tompkins provides an ideal point of
departure for decisional rationale. The several 8(a)(1)
allegations are principally disposable by ordinary resolu-
tion of credibility respecting utterances, where evidence is
present in support.14 The allegation of majority representa-
tion is supported through extensive proof of authentic cards
driven by Michael Snead, Esprit's shipping manager, was blocked from
backing completely to the loading dock edge by several pickets as two of
these literally climbed onto the vehicle's rear floor area and lay there until
removed by police The following week Snead drove to a postal facility and
upon arrival experienced an attempt by Union Representatives Phil Russo
and Sorro, following in a car, to deliberately cut off access to a parking space
On an occasion in early 1975 police officers were at Esprit responding to one
of many calls that they clear pickets blocking vehicle passage and a group of
several pickets openly assaulted one policeman A further incident near that
time occurred at GCA where equipment was being removed by Gruchacz
and a crew The truck used for this purpose was beaten upon with clubs,
objects were hurled at Gruchacz' group, and he himself was punched by an
unidentified person.
13 During the "holiday '74" season the value of imports exceeded, for the
first time, the value of all domestically produced lines . This preponderance
repeated for "spring '75" and by "summer '75" onward the former value
more than doubled the latter
14 In addition to 8(a)(l) dispositions appearing above, the allegation of
subpar X(i) is independently validated by sufficient proof. The violative
promise to raise pay occurred on the last regular workday of GCA's
operations and payroll records covering that week show apparent implemen-
tation. Of the 64 sewers (payroll codes 2000 and 3000) employed that week,
the gross pay of 35 was $90 (or $90.01) which is arithmetically $2 25 for a 40-
hour week. While many earned less than this amount, their total hours
("make-up" - or plain hourly - plus such hours as were spent on actual
piecework time) are not shown on the payrolls in evidence. Any who worked
from a fractional hour to several hours less than 40 for the week would have
received a high $80 figure in minimum gross pay earnings, which obtains in
many of the remaining cases Although this ambiguity exists in the records,
both Wai Fong Wong Lam and Sara Svidovsky testified without contradic-
GREAT CHINESE AMERICAN SEWING CO.
executed by a sufficient number of employees with knowl-
edgeable understanding of their purpose as to establish
designation of the Union for the appropriate bargaining
unit . The remaining issues (outside those pertaining to
remedy) arise under the 8(a)(3) branch of the case, one
singularly affecting Ma and the other of sweeping signifi-
cance to GCA's general work force. On both planes, that of
viewing individual circumstances concerning Ma and
sifting the overall dynamics that obtained during the
critical period of early July, I draw inferences which reject
Respondents' defenses.15
Ma had been employed without known incident for over
2 years. Gruchacz observed the ostensibly inefficient
bundling method in March during an orientation visit at
GCA, Livingston viewed fabric handling as a principal
influence on sewing production, and Kainz testified that
Handa Lai had stated the "bundling system [could not
produce ] enough work." This background provides context
for the corrective endeavors undertaken by management
team members. In this setting, the efforts of Sanders were
tentative at best. I believe he has embellished the facts by
now describing his dismay over Ma's resistance to change
as bona fide confrontation with an insubordinate employee.
Regardless of Respondents' obvious entitlement to manage
the factory and to expect responsive compliance with
supervisory directives, the fact situation here does not
permit moving to conclusions based on mechanistic appli-
cation of these powers. First, it is clear that Sanders passed
the problem to Gruchacz (through Kainz) and at this point
Ma concededly agreed to undertake the change. Aside from
the compounding presence of an insufficient language
vehicle, and individual perceptions of whether an experi-
mental contest was mounted and not grudging acquies-
cence to authority, Ma did not persist to a point beyond
simple surprise and undertook endeavors recognized by
Sanders as at least superficial fulfillment of new bundling
techniques. The time sequence is scrambled by Respon-
dent's witnesses as Kainz is persuasively positive she first
spoke to Ma on July 8, while Gruchacz (supposedly
contacted after this effort) insistently testified he sought to
resolve the problem on July 3. Given Kainz' version, Ma
would have had a suspiciously brief time in which to show
adeptness at new tasks. Finally, the activating event on
tion that they actually received the higher rate. The timing of this raise,
absent convincing evidence that one was planned as to fact and effective date
prior to sudden support for the Union among employees, corresponds to
established theory holding such action to be a violation Cf Texas Transport
& Terminal Co, Inc 187 NLRB 466 (1970) Accordingly, I have included a
provision in the recommended remedial Order that Respondents cease and
desist from such conduct This should not be construed as a requirement that
such increases as were granted be rescinded . See Steel-Fab, Inc, 212 NLRB
363 (1974).
15 The general employment setting in this case is flavored with two
distinct factors The first concerns bizarre circumstances of a large produc-
tion facility beset with definite, if not sudden, default in managerial
effectiveness . This comment relates to Kozak , whose functional personality
was revealed sufficiently in characterizations of both Gruchacz and Tomp-
kins to show that aberrant business behavior was manifested as of early July.
Thus, Gruchacz found him "having a very difficult time ... both health-
wise and mentally" for which "both Doug and I had been very stem in our
request that he do take a vacation and that he stay away," while Tompkins
more descriptively saw him "in a very precarious emotional condition"
whose "charisma" among employees was counterbalanced by "alienat[ion I"
fostered in key executive Livingston Kozak obviously projected an awkward
presence which the management team sought to artfully mimmize in its
1677
which Respondents rely is the claim that Ma alarmed
emotionally sensitive employees with an unfounded rumor
of Kozak's fate. Implausibility permeates this contention as
Kozak himself "went out there and talked [by the factory's
sewing operation machinery ] to a few people," yet Sanders
asserts he determined to recommend Ma's discharge
without confrontation on the point and in claimed reliance
on impaired language skills of unfamiliar (and now
unidentifiable) employees. General Counsel has successful-
ly established a prima facie case of discrimination through
interrelated testimony, coupled with the entire record,
permitting the inference which I draw to the effect that Ma
was effectively discharged because of his known union
activities. He was most prominently active, in fact, Tomp-
kins (approver of Ma's termination) was generally aware of
union activities at GCA and Handa Lai acquired specific
knowledge (imputable generally to Respondents) on July 8,
by seeing Ma handling cards contemporaneously known to
her as the Union' s green (or greenish-bluish) signature
cards.16 Respondents' propensity to act in this manner is
established through their hostility to unionism, demon-
strated by the plant closure 1 week later. Cf. JFB Manufac-
turing, Inc., 208 NLRB 2 (1973). The timing of Ma's
discharge, occurring after only 1 full working day from the
peak of his inplant and community exposure as chief card
solicitor, supports this conclusion. Overall it would offend
informed inferential reasoning not to believe that Ma was
eliminated in a deliberate attempt to abort the fast-spread-
mg interest in unionization. By this conclusion, I consider
the entire matter of change in bundling technique either
contrived by Respondents' supervisory hierarchy in hurried
anticipation of moving against Ma or mere coincidence as a
matter arising within the management team's area of
concern as to operational improvement.
What remains is whether termination of GCA's opera-
tions was in retaliation for employees rallying to the Union.
This issue permits a purer form of interpretation from
uncontested facts. There is utter failure of persuasion in
Respondents' contention that a valid economic basis was
the sole motivation for closure of GCA on July 17. The
financial statements in evidence may be taken at face value.
They reveal, most significantly,17 an aggregate net operat-
ing loss over the October 1973-June period of $68,739. It is
initial protocols with employees . Secondly, there is a thread of paternalism
traceable to Tompkins in the conception , operation, and abrupt closing of
GCA as a section shop. Here the theme is first suggested by the quality
equipping and elaborate subsidizing of GCA, but is more nimbly seen in
sophisticated phrasing that a "distinctive experiment" was consciously
attempted as a "sort of model sewing shop in the social sense of the words "
It behooves one to weigh the likely effect of these factors Proper application
of employment expertise warrants belief that such overtone of idealism
suggests the ease by which wrath could descend in response to perceived
ingratitude Such a course of reasoning , if valid as I believe it to be, runs
counter to accepting either Respondents ' explanation of why Ma was
discharged or that continuing financial losses were the sole reason for
shutting GCA when done.
16 This inferential finding of 8(a)(3) violation incorporates the subsidiary
factor of employer knowledge by amalgamating the credible testimony of
Ma that Handa Lai saw him handle a card of patently greenish cast with that
of Lam Bick Chung and Wai Fong Wong Lam to the effect that at the end of
the week Handa Lai openly referred to such an object as something
supportive of the Union. See Mid-City Wholesale Meat Co, Inc, 202 NLRB
627 (1973)
17 Each month showing a 5-digit loss was affected by unusual cost items
October 1973 showed an extraordinarily high payroll of $73,664, December
(Continued)
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not enough to show the fact of such loss when compelling
evidence persuades that but for the advent of large scale
support for the Union among employees the business would
not have closed when it did. As of early July, nothing was
radically different from general affairs at GCA upon which
Edward G. Willheim, Respondent's certified public ac-
countant and business adviser, had repeatedly urged
abandonment . The management team was freshly commis-
sioned in optimism and miscellaneous indicators pointed to
continuation.18 Tompkins' explanation of the decision to
close is no more than faintly concealed resentment that the
work force chose to stake after his personal appeal for
solidarity. Any other conclusions would naively distort the
true thrust of meaning as to Respondents' inability "to
convince people to get behind the system" coupled with
despairing references to "attitudes" and "polarized" em-
ployees. On similar grounds the Board has rejected superfi-
cial business justification where an enterprise suffered
retaliatory closure because of union activities. Saginaw
Aggregates, Inc., 191 NLRB 553 (1971); D.M. Rotary Press,
Inc., 208 NLRB 366 (1974).
It is further amply clear, as alleged, that Esprit and GCA
constitute a single employer within the meaning of Board
decisional law. A. M. Andrews Company of Oregon and A.
M. Andrews of Illinois, Inc., 112 NLRB 626 (1955), enfd. 236
F.2d 44 (C.A. 9, 1956); Sakrete of Northern California, Inc.,
140 NLRB 765 (1963Xsupplementing 137 NLRB 1220
(1962)), enfd. 332 F.2d 902 (C.A. 9, 1964); Altemose
Construction Company and Energy Contracting Co., 210
NLRB 138 (1974). To the extent of Esprit's domestic
production, GCA was intended to be, and in fact was, an
entity wholly integrated within the business operation of
mass producing women's apparel. The physical separation
of the two facilities is immaterial as labor relations policy
was solidly centralized in Esprit.19 General management
affairs reflected Esprit's 90-percent ownership as Tomp-
kins, chief authority within Esprit itself, monitored operat-
ing matters (production awards, quality control, equipment
needs) through Livingston and financial matters through
Willheim. GCA was never free from the slightest or greatest
effects of Tompkins' control and this case, largely con-
cerned with the closing, is but a reflection of that sole
managerial power.
The single-employer finding also relates to my rejection
of Respondents' defense based on Textile Workers Union of
America v. Darlington Manufacturing Co. et al., 380 U.S. 263
(1965). The essential nature of Respondents' action was not
a Darlington-type closing but instead discriminatory sub-
contracting (or substitute contracting). As a garment
manufacturer, Esprit had flexible discretion to enlarge or
diminish the amount of work in progress at any sewing
1973 was affected (as was March) by substantial reduction (leading to
increased cost of operations) of contract costs in progress during the period,
while March itself was the month of expending $8,347 in business taxes.
Working capital at March 31 was $12,376, a plus figure in this regard being
traceable largely to stockholder (Espnt) loans totaling $43,302 during the
fiscal year in progress Beyond the stark financial figures themselves, it is
shown that substantial income tax advantage existed by the incorporation
and operation of GCA along with "advantages" of business depreciation
18 Principal among these were Tompkins' own act of exhorting assembled
employees on July 12, that sewing operator layoffs were executed with
routine advice of work temporarily lacking and purchase of a new piece rate
ticket machine signifying business as usual
contractor with whom it dealt. Thus viewed, Esprit merely
reallocated finishing services on cuts without change to this
integral part of its overall garment production. This
preemptive change was not a permanent closing and
discontinuation of partial operations as contemplated by
Darlington. See Walker Company, 183 NLRB 1322 (1970).
In contrast to the prompt and formalistic dissolution in
Darlington, no similar steps were taken here 20 and GCA
remains a viable entity with associated financial statement
current to June 30, 1975. For this reason (as well as
intrinsically distinguishing facts) A. C. Rochat Company,
163 NLRB 421 (1967), and Motor Repair, Inc., 168 NLRB
1082 (1968), are inapplicable. Cf. George Lithograph Com-
pany, 204 NLRB 431 (1973).
CONCLUSIONS OF LAW
1. Respondents constitute a single employer within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, at all times since July 12, has represented
a majority of employees in an appropriate unit consisting of
all production and maintenance employees of GCA's San
Francisco, California, facility, excluding office clerical
employees, guards, and supervisors as defined in the Act.
3. Respondents, by interrogating employees concerning
their activities on behalf of the Union, by threatening to
discharge employees for engaging in activities in support of
the Union, by threatening employees that their paychecks
would be withheld unless they turned over to Respondents
any authorization cards they had executed for the Union,
by promising and then granting employees a pay raise to
induce abandoning support of the Union, and by informing
employees that GCA would close its plant unless they
abandoned support of the Union, have engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(axl) and 2(6) and (7) of the Act.
4. Respondents, by discharging Frankie Ma on July 9
because he engaged in protected concerted activities on
behalf of the Union and by terminating the operations of
GCA on July 17 in retaliation for activities of its employees
in support of the Union, have engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(3) and 2(6) and (7) of the Act.
REMEDY
I recommend that Respondents broadly cease and desist
from their unfair labor practices, reinstate Frankie Ma with
backpay as provided in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and post an appropriate notice.21 I
19 This factor is amply demonstrated by the role of Tompkins in
addressing assembled GCA employees as he did on July 12, determining
wage rate change , routinely tolerating interchange by custodial employees,
summoning GCA employees to the office of Esprit at will, approving Ma's
termination and installing the management team while Kozak, then holder of
corporate office as president, was eased out of view.
20 California law requires stockholder action upon which a certificate of
any voluntary winding up and dissolution shall be filed. West's Ann. Corp
Code, pars . 4600,4603.
21 Because a substantial majority of employees affected by the remedy are
only fluent in Chinese, the notice shall also be printed in that language See
Monarch Tape Duplicating, A Division of Monarch Record Manufacturing
GREAT CHINESE AMERICAN SEWING CO.
further recommend that Respondents be required to
resume operations of GCA22 and offer reinstatement with
backpay, as provided in Woolworth and Isis, supra, to all
persons employed in the described bargaining unit during
the week ending July 12 (plus Elizabeth Tan) and to all
persons otherwise determined by compliance proceedings
to possess employment eligibility within such unit as of July
17.23 Finally, I recommend that Respondents' pervasive
extensive violations be remedied by a bargaining order as
the only effective means of counteracting conduct reaching
this magnitude. N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969). The rationale here is based on employer
conduct so flagrant as to undermine majority strength and
impede the processes of a fair election. See American Map
Company, Inc., 219 NLRB 1174 (1975). Respondents argue
that Laura Modes, supra, should be applied in opposition to
bargaining order entitlement. The key factor in Laura
Modes, and subsequent related cases, is the notion that a
labor organization totally rejects legitimate means of
organizing and representing employees, employing instead
maliciously violent conduct which would tend to intimidate
any reasonably prudent employee and which casts doubt
Corp., 205 NLRB 520 (1973); Czas Publishing Co., Inc., 205 NLRB 958
(1973). Effective dissemination of assurances to be contained in such notice
warrants the further requirement that it be mailed to the last known address
of each GCA employee
22 Respondents contend that obligatory reopening of GCA would be
economically punitive This argument is readily rejected since Board
remedies must be coextensive with the scope and nature of wrongdoing. To
do otherwise here would be tantamount to placing a price on employee
rights. The objective of requiring operational resumption is to restore status
quo Respondents advance some showing of new market forces which, it is
claimed , necessitate alleviating recognition. At this writing I have no basis to
intimate that circumstances exist by which Respondents may fulfill this
aspect of remedial relief other than with complete good-faith rejuvenation of
GCA as a going business Cf. Townhouse T V & Appliances, 213 NLRB 716
(1974); N.C. Coastal Motor Lines, Inc, 219 NLRB 1009 (1975)
23 Backpay under the plant reopening aspect of my recommendations
shall commence as of August 2, the date on which "80 or 90" employees of
GCA were led to make application for work at Esprit. This conduct, aside
from its tactical nuisance value, was a clear expression for purposes of
determining scope of remedy for unfair labor practice strikers, that strike
activity at the dormant GCA plant had ceased. From its inception, the strike
1679
on whether such labor organization is generally willing to
assume and maintain representational obligations. Such is
not remotely the case here. The Union acquired its majority
during a swift campaign of customary solicitation directed
to employees of the target employer. Prompt commence-
ment of the strike was a strategy decision within the
Union's discretion. It is not a condonation of sporadic
physical violence and obstructive tactics to say that such
unsatisfactory factory relief as Respondents seemingly
might have received from allegations lodged under Section
8(b)(1)(A) of the Act, injunctive proceedings in court, or
through civil and criminal precepts of law was the extent of
their entitlement. While this decision states the facts of
uncontradicted strike misconduct, it is misplaced reliance
to claim that Laura Modes aids Respondents on this issue.
Cf. C.A. Froedge Delivery and Trucking Service, Inc., 172
NLRB 46 (1968); World Carpets of New York, Inc., 188
NLRB 122 (1971); Ramona's Mexican Food Products, Inc.,
203 NLRB 663 (1973); New Fairview Hall Convalescent
Home, 206 NLRB 688 (1973), enfd. 520 F.2d 1316 (C.A. 2,
1975).
[Recommended Order omitted from publication.]
was in nature a protest of unfair labor practices , as sentiment to that effect
coupled with causal connection has been shown. Cf Black Angus of
Lauderhill, Inc., 213 NLRB 425 (1974). An earlier date argued for by General
Counsel is not appropriate as discnnunatory plant closing, regardless of the
depth to which that action violated Sec. 8(a)(3), did not disturb ordinary
principles of when backpay entitlement arises following commencement of a
strike . Here, as typically so, there must be shown termination of the strike
and an unconditional offer to return to work. This is not established by self-
serving reference in the Union's telegram of October 11 to the date July 19,
but was prominently clear (Tompkins himself was involved in mechanics of
handling the inordinately large group of persons appearing suddenly at
Esprit's small reception area on August 2) from such mass action. It is
unrealistic to expect proof that each individual who became a discnminatee
by reason of the plant closing was present on this occasion, only that
Respondents could not from and after that point reasonably believe that
should they have chosen to reopen the GCA plant a complement of
employees would not have been available for resumed operations. Compli-
ance proceedings customarily preserve to Respondents the opportunity to
establish in particular instances that specific persons declined the group
action as sponsored by the Union or were otherwise unavailable for
employment