Great Chinese American Sewing Co. v. N.L.R.B.

• Decision Date: 10 July 1978
• Docket Number: Nos. 77-1299,77-1722,P,AFL-CI,s. 77-1299
• Citation: 578 F.2d 251
• Parties: 99 L.R.R.M. (BNA) 2347, 84 Lab.Cas. P 10,745 GREAT CHINESE AMERICAN SEWING COMPANY, Esprit de Corp., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. SAN FRANCISCO JOINT BOARD, INTERNATIONAL LADIES' GARMENT WORKERS' UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 251

578 F.2d 251

99 L.R.R.M. (BNA) 2347, 84 Lab.Cas. P 10,745

GREAT CHINESE AMERICAN SEWING COMPANY, Esprit de Corp., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

SAN FRANCISCO JOINT BOARD, INTERNATIONAL LADIES' GARMENT

WORKERS' UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 77-1299, 77-1722.

United States Court of Appeals Ninth Circuit.

July 10, 1978.

J. Mark Montobbio of Severson, Werson, Berke & Melchior, San Francisco, Cal., for petitioners.

Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for respondent.

On Petition to Review a Decision of the National Labor Relations Board.

Before BROWNING, KENNEDY and HUG, Circuit Judges.

PER CURIAM:

The San Francisco Board of the International Ladies' Garment Workers Union, AFL-CIO (Union), attempted to organize the Great Chinese American Sewing Company (GCA), a subsidiary of Esprit de Corp. (Esprit). On July 4, 1974, Frankie Ma, an employee of GCA, began distributing Union authorization cards to his fellow workers. By July 12, over two thirds of GCA's employees had signed such cards.

On July 9, Ma was discharged. On the morning of July 12, Doug Tompkins, president of Esprit, spoke to the assembled employees of GCA. He promised the workers a wage increase if they rejected the Union and threatened to close GCA if they did not. That afternoon, while distributing pay checks, Handa Lai, GCA floor supervisor, interrogated the workers as to their Union sympathies. Lai told those she suspected of Union allegiance that they could not have their paychecks until they surrendered their Union cards. Lai announced that employees who had signed Union cards need not return to work on the following Monday, while those who had rejected the Union should report for work as usual.

The Union filed unfair labor practice charges against GCA and Esprit and struck GCA. The companies then closed GCA's plant and discharged all of GCA's workers. The few who had renounced the Union were reemployed by Esprit. The Union filed additional unfair labor practice charges against the companies.

The Board found GCA and Esprit were a single integrated enterprise, and that they had engaged in unfair labor practices. The Board ordered the companies to recognize and bargain with the Union, as the authorized representative of GCA's employees, and to pay discharged workers back pay. The Board declined to order Esprit to reopen the GCA plant.

The companies petitioned for review, challenging the Board's findings as unsupported by substantial evidence and challenging the Board's remedy as an abuse of discretion. The Union petitioned for review, asserting that the Board abused its discretion by failing to order reopening of the GCA plant. The Board cross-petitioned for enforcement. We dismiss both petitions for review and grant the Board's petition for enforcement.

Substantial evidence on the record as a whole supports the Board's finding that Esprit and GCA constituted a single integrated enterprise and Esprit was therefore responsible for unfair labor practices committed against GCA employees. Esprit is a designer and distributor of ladies' garments. It founded GCA in 1972 to do its sewing work. Throughout GCA's brief history, virtually all of its output went to Esprit. Esprit owned 90 percent of GCA. The remaining 10 percent belonged to Esprit's production manager. GCA and Esprit filed consolidated tax returns and financial statements. On July 1, 1974, Esprit suspended Mike Kozak, the president and general manager of GCA, and replaced him with a management team made up of Esprit officials. These Esprit officials directed GCA's subsequent anti-Union offensive.

The four criteria for determining the existence of an integrated enterprise interrelation of operations; common ownership or financial control; common management; and centralized control of labor relations, see Radio Union v. Broadcast Service, 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965); NLRB v. Triumph Curing Center, 571 F.2d 462, 468 (9th Cir. 1978) have been met.

Substantial evidence on the record as a whole supports the Board's findings that the companies interfered with, restrained, and coerced the employees of GCA in their organizational efforts in violation of section 8(a)(1) of the National Labor Relations Act. Tompkins' threats and promises in his July 12 speech violated section 8(a)(1). Hertzka & Knowles v. NLRB, 503 F.2d 625, 628 (9th Cir. 1974). Handa Lai's coercive interrogation of employees later that same day also violated the Act, see NLRB v. Deutsch Co., 445 F.2d 902, 904 (9th Cir. 1971), as did her demand for surrender of authorization cards, NLRB v. Essex Wire Corp., 245 F.2d 589, 592 (9th Cir. 1957), and her threat to discharge Union adherents, NLRB v. Sebastapol Apple Growers Union,269 F.2d 705, 708 (9th Cir. 1959).

The companies argue that Tompkins did not make the threats and promises attributed to him. Six employee witnesses testified otherwise. It is the function of the administrative law judge, "who observes the witnesses and hears their testimony, to determine credibility," NLRB v. Carpenters Local 180, 462 F.2d 1321, 1324 (9th Cir. 1972), and we will not disturb the administrative law judge's finding of fact. See NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). Moreover, uncontested findings as to Handa Lai's conduct are sufficient to support the Board's determination.

Substantial evidence supports the Board's finding that Frankie Ma was discharged for his Union activities. Ma was the Union's most prominent supporter. He solicited 43 of the 67 Union authorization cards. His Union activities were known to management. The day before his discharge Handa Lai saw Ma give a Union card to another employee.

The Board was entitled to reject the companies' argument that Ma was discharged for unsatisfactory work rather than for his Union activities. Ma testified, without contradiction, that he had been employed by GCA for two years, had received two or three pay raises, and had never been criticized for poor work. A few days before his discharge, Ma was described by the head of Esprit's management team as a "good guy." Management never told Ma that his work was unsatisfactory or that he was in danger of discharge. Finally, at the time of his discharge, Ma was told he was being laid off for lack of work, a justification the companies later admitted was false.

The Board was also entitled to reject the argument that Ma was discharged for spreading false rumors concerning Kozak's suspension. Again, the lack of warning and the probably false explanation given to Ma at the time of discharge argue against this theory. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). In addition, Kozak was in the plant talking to workers at the time Ma was alleged to have spread the false rumors. It is unlikely Ma would have lied about Kozak in Kozak's presence.

Substantial evidence supports the Board's finding that Esprit closed GCA's plant because of anti-Union animus rather than because GCA was unprofitable, as Esprit suggests. When it assumed...