Rafael Igartua

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