Bloom/Art Textiles, Inc.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bloom/Art Textiles, Inc. and Miscellaneous Ware- housemen, Drivers & Helpers Local 986, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 21- CA-13894 July 29, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On May 3, 1976, Administrative Law Judge Wil- liam J. Pannier III issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Los Angeles, California, on March 24, 1976. On December 11, 1975,' the Regional Di- rector for Region 21 of the National Labor Relations Board issued a complaint and notice of hearing based upon an unfair labor practice charge filed on August 12 and alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties have been afforded full opportunity to ap- pear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: 1 Unless otherwise stated, all dates occurred in 1975 FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent has been a California corporation engaged in the business of distributing fabrics at wholesale. In the course and conduct of these opera- tions, Respondent annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. Therefore, I find, as admit- ted in Respondent's answer to the complaint, that at all times material Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, has been a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The sole issue presented in this matter is the motivation for the termination of Manuel Flores on August 18. The General Counsel contends that it was occasioned by dis- closure of Flores' name as a supporter of the Union' s orga- nizational campaign being conducted among Respondent's employees. Conversely, Respondent contends that it was occasioned by Respondent's discovery that California law prohibited knowing employment of an alien not entitled to lawful residence in the United States. In September 1974, Flores, a Mexican national who had been residing in the United States for approximately 2 years without having obtained the necessary documents to become a lawful resident, became employed by Respon- dent under the fictitious name Manuel Lopez. Flores, sup- ported by his uncle Jose Flores, testified that at the time of his interview for the position, Respondent's owner, Leo Bloom, had inquired if he had his papers for legal residence and that he had told Bloom that he did not. Bloom denied having asked this. Assistant Bookkeeper Luis Valladares, who all agree had been present as translator during the interview, had no recollection of whether Bloom had asked this question. While Bloom's son, Stanley, testified that he had been present during the interview and that his father had not inquired concerning the legality of Flores' residen- cy, Stanley Bloom's recollection of what had transpired that day was quite vague, and his denial appeared to have been premised less on what he actually recalled and more on the fact that Respondent does not normally inquire about this subject when interviewing applicants. Flores continued working for Respondent under the name Lopez until November 1974 when a decline in busi- ness led to his layoff. Not until March did he return to work for Respondent. However, during the interim, he had lost the social security card corresponding to the name Lo- pez. Thus, upon returning to work, he filled out a new W-4 certificate, listing his correct name and social security 225 NLRB No. 101 BLOOM/ART TEXTILES, INC. 767 number. When doing so, he explained to the secretary for bookkeeping and payroll that he had lost his social security card and wanted to change the certificate. President Bloom denied being told of this change, although he acknowl- edged that at the time he employed only approximately eight employees. On August 4 the Union filed the representation petition in Case 21-RC-14285, seeking an election in a unit of pro- duction and maintenance employees, shipping and receiv- ing employees, warehousemen, and truckdrivers employed by Respondent.2 A copy of this petition was admittedly received by Respondent on the following day. By this time, however, business had again began declining and, 3 days later on August 8, Bloom offered Flores and another em- ployee, Rudy Zermano, the choice of either having one of them laid off or of alternating workweeks. After confer- ring, the two employees advised Bloom that they would prefer to rotate their workweeks, with Zermano being the one to work the week of August 11 through 15. Flores testified that on this same day, Bloom had asked if Flores had legal papers, but had made no reply when Flores had said that he did not. Bloom denied having inquired of Flores about the matter on August 8. However, he did ac- knowledge that following the filing of the petition he had inquired of two Board agents if he was permitted to em- ploy "an illegal person" and had been told that illegal aliens have a right to be employed and to vote in Board elections.3 Notwithstanding his agreement to rotate workweeks with Zermano, Flores was not happy with the arrangement, believing that, instead, Respondent should have laid off other employees. This led him to complain about the mat- ter to the Union, which, on August 12, filed the charge in the instant matter, stating as the basis for the charge: "Within six months prior to the filing of this charge the above-named Employer has discharged Manuel Flores and Rudy Zermano for their Union activities on behalf of the Charging Party." There is no evidence that Respondent had been aware that this charge had been occasioned by Flores' complaint to the Union nor is there any evidence that would support an inference that Respondent would have suspected Flores of being more active than Zermano on behalf of the Union. Flores was terminated on the afternoon of August 18, the first day on which he worked following the filing of the charge. He testified that, during the termination conversa- tion with Bloom, the following had transpired: At first he asked me if I had papers, legal papers, here and I said not, that I didn't have papers. Then later, afterwards he told me he was going to take my job away because I did not have legal papers and he did not want any problems. Respondent contends that the termination resulted from a 2 Flores had signed an authorization card for the Union in June, but the General Counsel concedes that there is no evidence disclosing that Respon- dent had been aware of that fact 3 It appears, as the General Counsel argues , that this conversation oc- curred prior to the discussion between Bloom and his attorneys , on August 15, in which the decision to terminate Flores was made conversation on August 15 when, during the preparation of the eligibility list for submission to the Board in connection with processing of the petition,4 it was brought to the atten- tion of attorneys Tomigal and Clark that Flores had been employed under two different names and social security numbers. They asked if Bloom had been aware of this, which he denied, and then asked if Bloom was aware of whether or not Flores was legally present in the country, to which Bloom pleaded lack of knowledge. They then ad- vised Bloom that under California Labor Code, sec. 2805(a), criminal sanctions could be imposed against Re- spondent for knowingly employing an alien not entitled to lawful residence in the United States. By way of amplifica- tion, they pointed out that, while this provision had been declared unconstitutional by the California courts, it had been docketed for decision by the United States Supreme Court and, in their opinion, would be found to be valid legislation.5 In any event, they told Bloom, the statute did embody the public policy of the State of California and, consequently, they recommended that Bloom first ask Flores if he was illegally residing in the United States and then, if he acknowledged that he was not a legal resident, that he be terminated. Bloom testified that it was pursuant to this advice that he pursued the course which he followed on August 18. Analysis In his brief, counsel for the General Counsel relies upon two factors to premise his argument that the termination of Flores was unlawfully motivated: first, the proximity to the termination of the filing of the charge listing Flores as a union supporter and, second, the asserted fact that Re- spondent had been aware of Flores' illegal residency status since the time of his interview for employment. From these two premises, the General Counsel continues on to con- struct the argument that animus can be inferred from the proximity factor and that antiunion motivation can then be inferred from that animus and from the fact that Respon- dent advanced illegal residency as the reason for the termi- nation notwithstanding previous knowledge of Flores' sta- tus; thereby relying upon a demonstrably pretextual reason which, of itself, supports the inference of illegal motivation. Proximity of time between protected activity and termi- nation "strongly suggests a causative relationship between the two and is, as we have said, sufficient to establish a prima facie case Union Camp Corporation, 194 NLRB 933 (1972), enfd. 463 F.2d 1136 (C.A. 5, 1972). Yet, the proximity doctrine of illegal motivation is not a per se doctrine. "[C]oincidence in union activity and discharge renders an employer vulnerable and serves to make the 4 There were apparently two meetings between Bloom and the two attor- neys , a preliminary meeting on August I1 followed by the August 15 meet- ing to prepare the eligibility list. Clark testified that the charge had been filed by the time of the meeting in which the parties met to prepare this list, and accordingly, I find that the above-described events transpired at the August 15 meeting 5 The Supreme Court had granted certiorari on June 23, 1975 DeCanas v Bica, 422 U S 1040 As predicted, the holding of the California courts was reversed by the Court, although , as the General Counsel points out, the section was not declared constitutional DeCanas v &ca, 424 U S 351 (1976) 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge issue one of fact." N.L R.B. v. Council Manufac- turing Corporation, 334 F.2d 161, 164 (C.A. 8, 1964); ac- cord: The May Department Stores Company d/b/a The M. O'Neil Company, 195 NLRB 22 (1972). The presumption can be rebutted by a showing of legitimate cause for the termination. Union Camp Corporation, supra; Lawrence In- stitute of Technology, 196 NLRB 28, 30 (1972); Wyle Labo- ratories, 201 NLRB 233 (1973). The General Counsel's second premise is that Respon- dent had been well aware pnor to August 18 that Flores was not legally residing in the United States. When ques- tioned concerning his prior knowledge of Flores' residency status, Bloom's testimony was not convincing. Further, his denial concerning the questioning attributed to him during the September 1974 interview was not effectively corrobo- rated either by Valladares, who simply claimed lack of re- call, or by Stanley Bloom, whose recollection of the inter- view appeared most vague and who, in reality, retreated to normal practice during interviews as the basis for his denial of the legality of residency question attributed to his father. Leo Bloom's admission that, following the filing of the pe- tition, he had asked two Board agents if he could employ "an illegal person" tends to support Flores' testimony con- cerning Bloom's August 8 inquiry. Bloom did not appear to be a person given to making abstract inquiries and, absent evidence that there were other persons employed by Re- spondent who were residing illegally in the United States, Bloom could only have been referring to Flores when speaking with the two agents. Finally, the number of em- ployees employed by Respondent are few in number and in such a small operation it must have been a somewhat unique matter for the secretary to be told that an employee was changing his W-4 certificate to reflect a new name and social security number. At least, it has not been shown that this was a common occurrence at Respondent. In these circumstances, I find it most unlikely that the secretary would not have reported so unusual a matter to her superi- ors and that it would not have been brought to Bloom's attention. In these circumstances, I do not credit Leo Bloom's testimony that he had been unaware of Flores' status prior to August 18, and I find that Respondent did possess knowledge of his illegal residency status prior to that date. It is at this point, however, that I part company with the General Counsel's argument, for I feel that it fails to fully portray Respondent's defense. Respondent does not simply contend that it learned of Flores' illegal status on August 18 and then terminated him. Rather, its defense embraces an additional factor; namely, that on August 15 Bloom became aware that state law prohibited the knowing em- ployment of illegal aliens and was advised by counsel to terminate Flores if he was not, in fact, a legal resident. It was this factor, and not the election, which Bloom testified led him to terminate Flores. As found above, Bloom was not a credible witness when he denied knowledge of Flores' residency status prior to August 18. 1 am aware of the prin- ciple that "the testimony of one who has been unreliable as to one issue may properly be accorded little weight as to the next." N.L.R.B. v. Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949). On the other hand, a trier of fact is "not required to discount everything [witnesses] testified to be- cause he did not believe all of it. Nothing is more common than to believe some and not all of what a witness says." Edwards Transportation Company, 187 NLRB 3-4, enfd. per curiam, 449 F.2d 155 (C.A. 5, 1971). With respect to Bloom there are several factors which indicate that the maxim, Falsus in unto, falsus in omnibus should not be applied. NL.R.B. v. Florida Citrus Canners Co Operative, 288 F.2d 630 (C.A. 5, 1961). First, while I have found that Bloom was fully aware of Flores' residency status prior to August 18, the record is devoid of evidence which would support a finding that he had also been aware that there was a state law prohibiting the knowing employment of illegal residents. Accordingly, there is nothing to rebut Bloom's testimony that he first learned of California Labor Code, sec. 2805(a), on August 15. Second, the record does disclose that Bloom had been concerned with Flores' residency status prior to the filing of the charge which, the General Counsel concedes, first disclosed Flores' support for the Union. Thus, on August 8-5 days before Respondent received a copy of the charge-Bloom asked Flores about his residency status. Moreover, following the filing of the petition, Bloom asked two Board agents if there was anything wrong with retain- ing "an illegal person" as an employee.6 This is a crucial conversation, since it reinforces Respondent's defense if it occurred prior to receipt of the charge. Alternatively, if the conversation occurred between August 13 and 15, it would tend to support the General Counsel's theory that the dis- closure of Flores' support for the Union led Respondent to seek a justifiable basis for terminating him. Clearly, howev- er, the burden is on the General Counsel to demonstrate that the latter and not the former was the case. "The bur- den of establishing every element of a violation under the Act is on the General Counsel." Western Tug and Barge Corporation, 207 NLRB 163, fn. 1 (1973). Though the Gen- eral Counsel did make an effort to ascertain the date of this conversation by interrogating Bloom, the latter did not re- call the time at which it had taken place. I do not think that his lack of recollection in this respect was an attempt to evade answering. Bloom did not appear sufficiently per- ceptive to appreciate the significance of the date and 7 months had elapsed since the conversation. This, however, was not the only avenue available to the General Counsel. Presumably, one or both of the two agents were available to testify concerning the date of the conversation. Yet, nei- ther was called as a witness. I realize that the General Counsel does have a policy against calling his own agents as witnesses, but this policy cannot serve as the basis for drawing an adverse inference against Respondent. Accord- ingly, I find that it has not been shown that Bloom's ques- tion about continued employment of illegal aliens arose as a result of receipt of the charge and, further, that it, like 6 Though he acknowledged having been told by the Board agents that illegal aliens were eligible to vote in Board elections, the General Counsel did not dispute Bloom's testimony that this information had been provided by the agents in response to Bloom's question confined to continued em- ployment of such persons Thus, this incident does not display Respondent's concern with the eligibility of aliens, but, rather, is consistent with the de- fense that Respondent was concerned about the possible consequences of continued employment of aliens residing in the United States BLOOM/ART TEXTILES, INC. 769 Bloom's August 8 question to Flores, serves only to dem- onstrate that Respondent was concerned about the effect which disclosure of Flores' status might have upon Re- spondent. Such concern is, of course, consistent with Respondent's defense.7 Third, in contrast with the immediately preceding factor, there is no evidence of concern by Respondent about the possible unionization of its employees. No violations of the Act, other than Flores' discharge, have been alleged. None have been shown to have occurred. No statements demon- strating animus have been shown to have occurred. In fact, there is no evidence that Respondent made any statements at all to its employees concerning the organizing campaign and the election which would result from the filing of the petition. Fourth, Flores was not the only employee named in the charge. Zermano, with whom Flores worked, was also list- ed as an alleged discriminatee. The charge makes no dis- tinction between the two employees. The record would not support an inference that Respondent could view Flores as being a more active or stronger supporter of the Union than Zermano. Yet, there is no evidence that Zermano be- came the target of reprisals by Respondent or that Respon- dent took action against him to prevent him from continu- ing to support the organizing campaign among Respondent's employees. True, an employer need not vio- late the Act in wholesale fashion by weeding out all union adherents in order for the General Counsel to establish that a violation has occurred. Nachman Corp. v. NL.R.B., 337 F.2d 421, 424 (C.A. 7, 1964); N.L.R.B. v. Puerto Rico Telephone Company, 357 F.2d 919, 920 (C.A. 1, 1966). On the other hand, the absence of any unlawful conduct di- rected toward Zermano, in circumstances where both he and Flores were joined, equally, as parallel supporters of the Union, does diminish the effectiveness of the General Counsel's argument that Respondent's termination of Flores was unlawfully motivated. See: Universal Manufac- turing & Supply Co., 198 NLRB 605 (1972), enfd. per curtain 474 F.2d 1272 (C.A. 4, 1973); Young and Hay Transporta- tion Co., 205 NLRB 619, 622 (1973); Enerco International, Inc., 200 NLRB 394, 396 (1972). Fifth, it was clear from the tenor of Bloom's testimony that he had, in fact, relied upon advice of counsel in termi- nating Flores. Thus, in contrast to his cautious and defen- sive demeanor when denying knowledge prior to August 18 of Flores' illegal residency, obviously designed to avoid ad- mitting having knowingly employed an illegal alien, Bloom was quite spontaneous and forthright when testifying con- cerning counsel's advice 8 and his reliance on that advice in terminating Flores. In short, he impressed me when testify- 7 Though the agents did tell Bloom that there was nothing wrong with employing illegal aliens, this opinion was presumably confined to Federal Law where, of course, there is currently no proscription on knowingly em- ploying aliens, although such legislation is pending Thus, I draw no adverse inference from Bloom's subsequent decision to disregard the government agents' advice and to follow the advice of his own counsel, predicated upon state law 8 Thus, in describing the discharge conversation on direct examination, Bloom completed his answer by testifying "And then I explained to him that-that's what took place But how about your advice9 May I tell them9 Not yet9" Ing concerning this facet of the case as a person who had done what he had been told was the correct thing and who was genuinely surprised that his conduct was now being challenged. Furthermore, his testimony concerning the Au- gust 15 meeting with his attorneys was substantially cor- roborated by Clark. Of course, the fact that one is an attor- ney does not automatically render his testimony credible. Yet, the General Counsel has not challenged Clark's credi- bility, and there is nothing which makes his testimony im- plausible.9 Accordingly, I credit Clark and find that on August 15 Bloom was advised by his attorneys that under state law criminal sanctions could be imposed against em- ployers who knowingly employed illegal aliens, and was further advised that if Flores was an illegal alien he could and should be terminated. Acting on this advice, Bloom, though secretly aware that Flores was not a legal resident of the United States, followed the instructions given him by Tomigal and Clark, first asking again if Flores had legal papers and then terminating him upon receipt of a negative answer. Though the timing of the termination renders it suspect, Respondent's defense, based upon an assertion of fear of prosecution for violating state law, is plausible and is sup- ported by the circumstances in which it is advanced. See: Metro Truck Body, Inc., 223 NLRB 988 (1976). Conversely, the General Counsel's theory, that the termination was ef- fected in retaliation for Flores' support for the Union, is contrary to the events preceding Respondent's acquisition of knowledge of Flores' support for the Union (showing Respondent's concern about the possible effects of em- ploying an illegal alien), is contrary to the fact that Re- spondent has not committed any other violation of the Act and has not displayed animus, and is contrary to the fact that no adverse action was taken against Zermano, whose name had been linked with Flores' name in the charge. In these circumstances, I find that the evidence will not sup- port the allegation that Respondent was motivated by con- siderations unlawful under the Act when it terminated Manuel Flores on August 18. Accordingly, I grant Respondent's motion to dismiss the complaint. CONCLUSIONS OF LAW 1. Bloom/Art Textiles, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 9 Though there might be room to quarrel with his interpretation of sec 2805(a), as the General Counsel appears to do in his brief, the correctness of that interpretation is not in issue "It is well established that an employer may discharge an employee for good reason, for bad reason, or for no reason, provided that it is not for a reason proscribed by the statute " Acryl- ic Optics Corporation, 222 NLRB 1105 (1976) 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent has not violated the Act in any manner. On the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER10 It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. 10 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions , and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes