Puritana Manufacturing Corp.

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with, restrain, or coerce employees the exercise of their protected rights by refusing to bargain with the aforesaid Union as the representative of the employees in the above described unit. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self -organization, to form, join , or assist the above -named labor organization , or any other labor organization, to bargain collectively through representatives of their own choos- ing or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or refrain from becoming or remaining members of the above-named, or any other, labor organization except to the extent that such right may be affected by an agreement authorized by Section 8(a) (3) of the Act, as aforesaid. THE GOLUB CORPORATION, Employer. Dated- ------------------ By------------------------------------------- (Representative ) ( Title) CENTRAL MARKETS OPERATING CO., INC., 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, Fourth Floor, The 120 Building, 120 Delaware Avenue , Buffalo, New York 14202, Tele- phone 842-3100. Puritana Manufacturing Corporation and International Ladies Garment Workers' Union, AFL-CIO. Case 21-CA-2094. June 16, 1966 DECISION. AND ORDER On February 28, 1966, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The Gen- eral Counsel also filed exceptions to the Trial Examiner'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 powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 159 NLRB No. 45. PURITANA MANUFACTURING CORPORATION 519 The rulings are hereby aflfrmed.1 The Board has considered the Trial Examiner's Decision, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings,2 conclu- sions3 and recommendations of the Trial Examiner, as modified herein. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraphs 1(b) and 1(c) and reletter the present paragraphs consecutively. ["(b) Taking motion pictures or other photographs of its employ- ees while they are engaged in picketing or in other union activities under circumstances causing interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act." [" (c) Creating the impression among its employees that their union activities are under observation." [2. Substitute for paragraph 1(d), now relettered paragraph 1(f), the following : ["(f) In any other manner interfering with, restraining, or coerc- ing employees in the exercise of their rights guaranteed in Section 7 of the Act." [3. Add the following as the fourth, fifth, and sixth paragraphs to the Appendix attached to the Trial Examiner's Decision : [`VE WILL NOT take motion pictures or other photographs of our employees while they are engaged in picketing or in other ' We hereby correct the following inadvertent error in the Trial Examiner's Decision in the third full paragraph on p. 523, Porter came to the plant early in February of 1965, not early in February of 1964 2 The General Counsel excepts to the Trial Examiner 's failure to find that the taking of motion pictures of the strikers and pickets and of the general activity in front of the plant on April 21, 1965, by Manager Grace and his assistant , violated Section 8(a) (1) of the Act. As the General Counsel contends , the Board and courts have long held that in the absence of any proper justification therefor , photographing strikers engaged in picketing or employees engaged in other union activities constitutes illegal interference, restraint, and coercion Associated Naval Architects, Inc, 148 NLRB 1674, enfd 355 F.2d 788 (C.A. 4) ; Hudson Hosiery Company (Monroe Road Plant ), 109 NLRB 1410; The May Department Stores Company , 59 NLRB 976 , at 1010-11, enfd 154 F 2d 533 (C.A. 8), cert. denied 329 U.S. 725 Accordingly , we find Respondent 's conduct in this regard violative of Section 8(a) (1) of the Act We also agree with the General Counsel's further contentions that certain remarks of Respondent's supervisors, Santana and Perez, set forth by the Trial Examiner in his Decision at pp 522-523, also created the impression that the union activities of the employees were being observed and watched by the Respondent, and for this further reason, were violative of Section 8(a) (1) of the Act. See Gal Tex Hotel Corporation, d/b/a Admiral Semmes Hotel and Motor Hotel, 154 NLRB 338; Rosen Sanitary Wiping Cloth Co, Inc , 154 NLRB 1185 3 For the reasons expressed by the Trial Examiner, we agree that Respondent was discriminatorily motivated in refusing to reinstate employees Maria Eugenia Velez, Edilia Nieves, Placida Haddock, Nilda Reyes, Rosa Julia Perez , Felix Nieves, and Felisa Rivera Nieves on April 22, 1965, and the Respondent 's conduct in this regard was violative of Section 8(a) (1) and (3) of the Act. However, we find it unnecessary to further consider whether Respondent's refusal to reinstate all strikers, except Ojeda, as required by the settlement agreement constituted an independent violation of Section 8(a) (1) as found by the Trial Examiner 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities under circumstances constituting interference, restraint, or coercion under Section 8(a) (1) of the Act. [WE WILL NOT create the impression among employees that their union activities are under observation. [WE WILL NOT discourage membership in or activities on behalf of the aforementioned Union, or any other labor organization, by discharging or discriminating against our employees with re- spect to hire, reinstatement, tenure, and other working conditions. [4. Add the following to the last paragraph of the Appendix to read : [WE WILL NOT in any other manner interfere with, restrain, or coerce ... . [5. Add the following new paragraph as the final paragraph of the Appendix : ["All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." [6. Add the following immediately below the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision : [NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A charge of unfair labor practices and an amended charge were filed on April 23 and 26, 1965, respectively, by the above-captioned Union. Under date of June 7, 1965, the General Counsel of the Board issued a complaint against Respondent, Puritana Manufacturing Corporation. The case was heard before Trial Examiner Ramey Donovan in Santurce, Puerto Rico, on August 16 to 20 and August 23, 1965. In issue was whether or not Respondent had violated Section 8 (a) (1) of the Act by certain specified conduct and statements and whether or not Respondent, in violation of Section 8(a)(3) of the Act, had refused to reinstate seven named employees. Upon the entire record and from observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is a Puerto Rico corporation with offices and a factory in Aguas Buenas, Puerto Rico, where it is engaged in the manufacture of knitwear.' During a representative yearly period, Respondent, in the course and conduct of its busi- ness, purchased and had shipped to it from places outside Puerto Rico, goods and 1 Puritana also operates in the continental United States and has an office and plant In Altoona, Pennsylvania. PURITANA MANUFACTURING CORPORATION 521 merchandise valued in excess of $50,000; and, during said period, Respondent shipped products outside Puerto Rico valued in excess of $50,000. Respondent is an employer engaged in commerce within the meaning of the Act 2 II. THE LABOR ORGANIZATION INVOLVED International Ladies Garment Workers' Union, AFL-CIO, is a labor organiza- tion within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The events and facts The instant plant had been operated for a number of years by an employer other than Respondent. The latter commenced its operation of the plant on January 1, 1962. Grace, the principal management representative in the events of the instant case, was first employed at the plant as chief engineer on September 1, 1963.3 About the middle of December 1964, Porter, vice president of the Company with, headquarters in Altoona, Pennsylvania, notified Grace, who was serving as assist- ant manager, that he would become plant manager. Grace assumed the post of manager in January 1965. As far as the record shows, the first employee contact with the Union occurred in August 1964. At that time, there was some mechanical malfunction in the air conditioning in part of the plant and a small group of employees walked out. In the general environs of the village area where the plant was located , this group of employees met union representatives and had some discussion regarding their situ- ation and possible union organization. Among the group were employees Iris Delgado, Placida Haddock, Maria Valez, and Felisa Rivera Nieves .4 Edilla Nieves may have also been in this group since she signed a union card in August 1964. Thereafter, in August and September 1964, the above employees, having received cards from the Union, gave cards to their fellow employees and solicited signa- tures thereon. This was carried on outside the plant at noon and at other times, and in or at employees' homes. Commencing around September 1964, five or six paid union organizers also, at various times, spoke to employees about the Union and obtained signatures on cards. The organizing took place outside the plant, either in the street outside the factory building, before or after starting and quitting time, or at lunch time .5 It was in the period starting in November 1964, however, that the organizing campaign assumed a more active and broader aspect and this, continued until April 1965. From the beginning and throughout the campaign, the most active employee organizer was Felisa Nieves. Other employees who signed cards, gave out union cards to fellow employees and solicited support for the Union were Felix Nieves, husband of Felisa Nieves, Maria Velez, Placida Haddock, Nilda Reyes, Iris Delgado, Rosa Julia Perez, and Juan Pagan Martinez.6 The employee organizers' activity took place in front of the plant, before or after work and at lunch time, and in their homes or at the homes of fellow employees. At a Christmas party,7 around December 18, 1964, attended by, the plant employ- ees, a supervisor, Irma Santana, informed Iris Delgado that the Company did not want the Union and that, if the employees continued their activity and interest in the Union, the plant would close or move away .8 At the same party and imme- diately after the party when the participants went to one of the employee's home for further socializing, Santana asked Placida Haddock if she belonged to the Union or had signed a card for the Union and whether she was a leader in the 2 Respondent's motion to correct the transcript is granted. 8 The record indicates that Grace as chief engineer was professionally concerned with matters of industrial engineering, such as operational methods and procedures relating to costs and efficiency. 4 Referred Ito herein as Felisa Nieves. 5 The picture conveyed by the record is that the plant was located in a rural or semi- rural area and not a metropolitan center with large numbers of people going to and,fro in the immediate area of the plant. Activity in front of the plant and in the immediate plant area would be relatively conspicuous. 6 Among the substantial number of employees who signed union cards was, as mentioned, Edilla Nieves, who signed a card in August 1964 and signed another card in February 1965. 7 One of the early fringe benefits introduced by Respondent shortly after it acquired the- plant. 8 This and other evidence concerning Santana is uncontroverted in the record. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Santana stated that it was known in the company office that Felisa and Felix Nieves were leaders in the union movement. Approximately in February 1965, Haddock visited Santana who was ill at home. On this occasion, Santana inquired as to how the union movement was going. When Haddock said that she did not know, Santana expressed surprise because she said that she knew that Had- dock, Maria Velez, the Nieves couple, and others were among the union leaders. In January 1965, a group of about 10 or 12 employees met -in a restaurant. Among those present were Felisa and Felix Nieves, Julio Pagan Martinez, and Maria Velez. Several days later, Santana asked Felix Nieves if he had attended the meeting. In February 1965, Santana asked Felix Nieves, in the plant, how the union movement was going. He told her to ask a union organizer. Santana replied that, "Up in the office they gave me your name and told me I had a union leader in my section." s On a day during the first 2 weeks of April 1965, Supervisor Julia Perez advised Maria Velez that Supervisor Hix, the head of the looping and finishing department, where Velez worked, had been informed that Velez was one of the employees that was most frequently seen speaking with union organizers. Perez warned Velez to be very careful, that she was being watched and that she could be discharged at any time. According to Perez, Hix had already said that Velez was talking too much and not paying attention to her work.10 In connection with the foregoing facts regarding Supervisors Santana and Perez, it is true that both these supervisors were friends of, and mingled socially with, the employees with whom they spoke regarding the Union. However, this very fact gave added authenticity and weight in the minds of their listeners to their warn- ings and other statements. Santana, for instance, did not in any way qualify her statements regarding the'Company's opposition to the Union as mere guesswork or personal opinion on her part. She made positive statements, including the fact that the Company would, not might, close the plant or move if the union organization persisted. I find Santana's warnings and interrogations, addressed to Delegado and Felix Nieves to be violative of Section 8(a)(1) of the Act. I also find the evidence regarding Santana to reflect Respondent's awareness of, and interest in, the union activity as early as December 1964, as well as knowledge and suspicion of the active role of various individual employees in the Union. Supervisor Julia Perez, at the time when the union movement actually began in earnest, in November 1964, expressed herself as in favor of the Union and encour- aged union activity as well as participated in such activity." However, during this early period when Perez was prounion,12 she never claimed or even hinted to any employee that her sentiments regarding the Union reflected or emanated from Respondent.13 Perez, indeed, had made it quite clear that her prounionism was antagonistic to top management. She had informed her friends among the employ- ees in November that the reason a union was needed was because the new plant manager, Grace, was not a reasonable man. In April 1965, when Perez warned Velez that top management had been informed of Velez' close association with union organizers and that she should be careful since management could discharge her at any time, she was obviously warning Velez because of facts that she knew or purported to know as a supervisor. The fact that Velez was her friend and that Perez' motive was to forewarn Velez because of their friendship does not detract from the coercive nature of the message conveyed regarding higher management. As already observed, the friendship aspect lent authenticity and weight to the warn- ing. We find that Perez' warning to Velez was (1) that Velez and other employees were under observation by Respondent, at least ,from informers, regarding employee 9 Santana was one of the supervisors in the dyehouse department Grace was very close to the dye department and took a personal interest in it because of numerous opera- tional problems therein 10 This evidence as to the Perez statements is likewise uncontroverted. 11 There is no evidence to indicate, or claim by Respondent, that Respondent was aware of Perez' attitude or conduct regarding the Union Respondent states that it was unaware of Perez' prounion activity. We are satisfied that Respondent did not know of the fore- going and certainly that Respondent had not knowingly encouraged or fostered such an attitude on the part of Perez 12 As time went on, Perez forsook any prounion role and she had no further connection with the prounion movement some time after her initial enthusiasm was manifested. 11 Santana's antiunion statements, on the other hand, clearly purported to reflect the company position. PURITANA MANUFACTURING CORPORATION 523 association with union organizers; and (2) that unless Velez acted with great care and circumspection regarding the Union, she could be, and, by clear implication, might be, discharged since already management, apparently for the first time, had mentioned that Velez was talking too much while at work. We find that Perez in her aforedescribed statements to Velez was, in effect, a conduit of higher manage- ment's attitude -and that, so conveyed, the statements were violative of Section 8(a)(1) of the Act. Plant Manager Grace testified that he first became aware of union activity at the plant in the latter part of January or early February 1965. He stated that the union activity was obvious since the Union had vehicles with loudspeakers in front of the plant and there were people distributing union literature outside the plant. As soon as he became aware of the foregoing, according to Grace, he called together all his supervisors, including Hix, Santana, and Julia Perez. Grace states that he told his supervisors at two meetings that he wanted no information about the union activity that was going on and "that our company policy is that we will not interfere in any way with union activity inside the plant" and that there was to be no questioning of employees regarding union activity and that the question of a union was the employees' "business." 14 Grace also testified that he had informed the supervisors that the Company did not want the plant to be organized by a union. At another point, Grace admitted that as plant manager he had decided that he would do-everything in my legal power" to keep' the Union out of the plant; i.e. from having the plant organized. Later, in his testimony, when counsel referred to Grace's prior testimony, afore- described, Grace stated flatly that he had not said that he did not want a union in the plant. He then said that he did not recall having told the supervisors that the Company or he did not want a union in the plant. The vacillation and inconsist- ency in the witness' testimony was compounded when he admitted that "many times" he discussed with his key supervisors how the union campaign was going, albeit he had testified initially that he had told his supervisor's that he wanted no information regarding the union activity and campaign. Grace also stated that the supervisors were in close contact with the employees and knew more than he, what was going on in the plant and in their departments and he expected them to be so informed. As the union campaign progressed, it evidently became a matter of increasing concern to Respondent. Early in February 1964, Porter came to the palnt from the continental United States and Grace discussed the union campaign with him. In describing the substance of Porter's conversation with him on this occasion, Grace testified that it was "Basically what I [had previously] told the supervisors [supra] and also we, as a company, would rather run the company without a union." Although Porter had visited the plant on prior occasions, in February, for the first time, he addressed the assembled employees in the plant. He explained that because of illness in his family he had to leave but that Personnel Manager Zayas would read Porter's message to the employees. Having thus been introduced by top management, the statement was read aloud by Zayas. The gist of the statement was that the Company did not approve of the union organizational activity that was going on near the plant and that employees were being threatened and coerced; 15 the employees were advised in the statement that management was study- ing working conditions of the employees and how to improve them; the employees were told that if* they had grieveances or were unhappy they should take up such matters with their supervisors. On February 12, 1965, Grace and Zayas, and possibly Hix, personally handed mimeographed statements to the individual employees in the plant. The statements were signed by Porter and Grace. The substance of the statement was that the employees were being coerced into signing union cards but the• employees were advised by management that under the law they did not have to join the Union in- order to work for the Company. Employees were told to report to 'the Company any union threats, and in conclusion were informed that "this Company does not 14 None of the supervisors who were present testified regarding such meetings or their contents 15 There is no evidence in this record of union coercion or threats or anything that could be construed as such The only reference to alleged misconduct by the Union is found in the instant and other statements of management to the employees. There is no testimony as to the basis or asserted basis of such accusations 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD want the Union and is willing to protect and support you in your legal right to pre- vent that the Union gets into this Company [to prevent the Union from getting into this Company]." Also distributed on the same date was a separate statement signed by'Grace. It was stated therein that the Company periodically studied the working conditions and benefits of the employees and in the past this had resulted in improved benefits and conditions. The statement went on to say that a study was being conducted presently and that as soon as it was completed the employees would be informed of the results.16 There had been a dispute, based on a misunderstanding, about certain employees working on April 15, 1965, Holy Thursday. On Monday, April 19, the Company, in the forenoon, discharged seven employees for failure to work on April 15. The other employees in the department then left the plant on April 19 in protest of the Company's action. On this date, Grace, Zayas, and Hix distributed to the employ- ees in the plant copies of a letter, dated April 19, 1965, addressed to "Dear Friends" and signed by Grace. The letter stated that as a result of a study, which the employees had been previously advised was being conducted, the Company was putting into, effect additional paid holidays and hospitalization insurance. Conclud- ing, the letter stated : "We trust that we can count on your continued wholehearted cooperation, loyalty and support, which are necessary for a future which is secure and full of success for all of us." From the evidence heretofore described we are satisfied that as early as Decem- ber 1964, Respondent, including Grace and his supervisors , was aware of the union campaign and of the activity of various employees in that campaign . It is equally clear that Respondent was strongly opposed to having its plant organized and its subsequent actions occurred in the context of such motivation. While it is true that in the past the Company, at various times, had granted improvements in working conditions , the evidence persuades us that the increasing union campaign and its continued presence triggered the granting of greater bene- fits to employees on April 19, 1965, as a countermeasure to the union activity. The timing and the relationship of the two factors is apparent from the statements by Respondent to the employees in February 1965. Opposition to having the plant organized and the reference to a study of working conditions with a view to fairly predictable improvement were propositions projected jointly by Respondent. There is no evidence explaining why the study of working conditions and improvements therein, which Grace states that he had recommended to Porter in December 1964, suddenly fructified on April 19, 1965, when a walkout or strike occurred. Nor does Grace explain or mention any survey or study that he or others had conducted that led him to recommend specific improvements in December 1964. This despite the fact that Grace's testimony is that, in the history of the plant since January 1962, regular surveys, geared to such objective factors of an accountancy or mathe- matical nature as cost of living indexes, comparative wages in the industry and so forth, preceded increased benefits and with the benefits being granted with almost precise regularity approximately every 18 months. Rather than any fixed schedule of increases in benefits, the evidence reveals that Respondent, like many other employers, kept abreast of conditions in the industry and in its plant and granted benefits at such times or when it considered such action to be appropriate. Thus, sometime after Respondent acquired the plant in January 1962, Respondent granted the employees such benefits as "the summer picnic, the credit cooperative, the Christmas Fiesta,17 and the paid vacation." A representa- tive of Respondent, in addressing the employees in 1962, informed them that they would be happy since, whenever possible, the Company would endeavor to make added improvements in conditions. This prior general expression of good will and interest in improving working conditions was referred to on June 10, 1963, by Vice President Porter in a letter to all employees. Porter then went on to say that "Now I am investigating what improvements can be given to our employees." Porter stated that it has always been the policy of the Company "to improve the lot of its employees when possible. I assure you, we will continue to keep this policy." Commendable as the aforedescribed general expressions of good will and interest in improving working conditions may be, they are no more than that. The Com- pany was saying that, when it believed it could, and should, grant improved con- 1e The implication was reasonably clear that improved benefits and conditions were on the way 17 Evidently, the Christmas party previously mentioned herein. I PURITANA MANUFACTURING CORPORATION 525 ditions, it would do so, and it would be alert to implement this policy. Subse- quently, in July 1963, the Company announced' a life insurance program and paid holidays and stated that "In the future as in the past, whenever the condition of the business warrants, we will make additional improvements in your conditions and wages." Then followed the-company statements in February 1965 and the increased benefits in April 1965, as described above. There is no evidence in the record as to conditions in the business in 1965 other than the fact that the Com- pany was in the midst of an organization campaign by the Union. We find that the circumstances, including the timing, of the granting of benefits in April 1965, warrant the conclusion that this conduct of Respondent was in violation of Section 8(a) (1) of the Act and it is so found. By granting timely benefits, Respondent hoped to blunt or block the union drive. B. The discharges Iris Delgado had been employed by Respondent for 3 years, almost from the inception of Respondent's acquisition of the plant in 1962. She was a cutter in the looping and finishing department which was under the overall supervision of Hix. Andrea Torres was the immediate supervisor of Delgado. The latter was a highly productive worker who always exceeded the required minimum of production. Neither Hix nor any other supervisor had ever complained about her work, her attendance, or her conduct.18 As we have seen, Delgado was in the group that made the initial contact with the Union in November 1964. She signed a union card early in December 1964, and also received additional cards from Felisa Nieves for distribution among other employees. Delgado named four employees to whom she had given union cards.19 Supervisor Santana suspected Delgado's involvement in the union campaign and, as we have seen, gave her a pointed warning in December 1964. According to Plant Manager Grace, about September 1963, a supervisor named Jose, Casanova, who apparently was not Delgado's supervisor, came to him several times about what Casanova thought was falsification of work coupons by an employee.20 Grace testified that the suspected falsification was that management believed that some employee was stealing work coupons and turning them in for credit without having performed the work indicated by the coupons. As a result of this suspicion, management, around September 1963, instituted a system of pro- duction sheets on which employees were to paste the coupons with the sheets being turned in at the end of the day.21 From the aforementioned testimony of Grace, it is clear that the system that we have described was intended to' detect and prevent an employee from being paid 18 On one occasion, in January 1965, Delgado was told to use a different size scissors in her work She complied with the instruction but had refused to sign a written notice memorializing the incident. This was the end of the matter. 19 There were four or five paid union organizers engaged in the campaign, with Felisa Nieves being the key organizer and contact among the employees. The fact that Orga- nizer Ferrer testified that he did not recall Delgado having given him signed cards is not determinitive in view of the number of other organizers involved and the fact that Delgado apparently was in close contact with Felisa Nieves. 20 The various bundles of work on which pieceworkers worked were identified by coupons or tickets attached thereto. The coupon would identify the particular bundle of work, e.g. "Slash Front 15602, 6277 .050." When an employee completed work on particu- lar bundles she would turn in the coupons from the bundles and this would be used in computing her pay. 21 The production sheet contained a place for the name, clock number, and department of the employee Under this heading, there were four columns of blank boxes or spaces, in each of which box, or space, a work coupon could be posted. The employee was to in- dicate on the production sheet at what time she commenced and completed different types of work For instance, in one of the spaces of the second column of boxes or spaces, the worker might write in "2 : 30 p.m." Preceding the notation, a number of work coupons had been pasted in individual boxes going back to a notation "11: 30 a.m " This would indicate that, from 11: 30 to 2: 30', the worker had performed the work indicated by the coupons that she has pasted on the sheet for the period 11: 30 to 2 : 30. By the same token, coupons pasted in the boxes between the notation IT • 30" and the next notation of "3: 45" would indicate that such work had been performed between 2: 30 and 3:45. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for work not performed.22 A collateral aspect of the production sheet-work coupon system was that it would assist the Company in evaluating its piece rates and the system was of course a basic means by which the Company kept informed on the flow of work and the pay due the pieceworkers 23 On March 30, 1965, Delgado was working at her customary station at a large table with two other employees. She had been assigned to work on a specific order of samples by her immediate supervisor, Torres. Delgado worked on the samples from 8:30 to 11:30 and then proceeded to perform piecework 24 Being a high producer, Delgado, whose testimony that she always over-produced, was not controverted, testified that at 4:30 p.m. she had completed her production and she commenced pasting her work coupons on her production sheet and she did this until 4:50 p.m., at which time she went to the restroom preparatory to leaving the plant at 5 p.m., the end of the shift. Delgado's production sheet for the day showed work on samples from 8 to 11:30; then, 20 specific work coupons were pasted on the sheet for the period from 11:30 to 2:30; then 9 specific work coupons were pasted- for the period from 2:30 to 2:45; 10 specific coupons were pasted for the penod 2:45 to 4; 10 specific coupons were pasted for the period 4 to 4.40; and 2 specific coupons for the period 4:40 to 5. Delgado testified, without contradic- tion, that she and the other girls at the table consistently followed the same routine of attaching their respective work coupons to their production sheets in the after- noon toward the end of the day. Also uncontroverted was Delgado's testimony that her immediate supervisor. Torres, observed this procedure and had never warned her or spoken to her about the practice. The evening of March 30, employee Haddock visited Delgado and told her that Supervisor Santana had asked Haddock if Delgado was not one of the union leaders. Haddock testified that, on the day of Delgado's discharge, Santana had asked her about Delgado's relationship to the Union. On the same day, after Delgado had been called to the office, infra, Haddock testified that when she was with Supervisors Torres, Perez, and Cartagena, Perez and Cartagena told her that what had happened to Delgado was going to happen to all the others because management was keeping an eye on all of them to get rid of them.25 When Delgado came to work on March 31, her supervisor, Torres, said that Hix had Delgado's production-sheet for the previous day. Torres said that Hix was going to give Delgado a warning because Hix said that Delgado had not worked on March 30 from 4:30 to 5. Delgado told Torres that she had been posting work tickets on the production sheet from 4:30 to 4:50 and had then gone to the restroom but that she had finished her production quota by 4:30. Later, in the morning of March 31, Torres told Delgado to report to the office. In the office, Hix and Zayas were present. Zayas said that Hix had reported that Del- gado had not worked between 4:30 to 5 on the previous day but her production sheet showed work during that period. Delgado explained what she had done, as she had previously told Torres, above. She refused to sign a warning notice, explaining that she had not known on March 30 that she was doing anything - 22 Grace illustrated the point by testifying by way of example that if an employee turned in coupons for 200 dozen pockets, but the Company found only 150 dozen pockets com- pleted, it therefore would conclude that "someone stole fifty dozen" and put,the coupons on the production sheet. The company rules list 28 types of conduct which will subject an employee `,`to disciplinary procedures ranging from warning to discharge." Item number 4 reads: "Punching other employees' time card, falsifying any time card, time keeping record or work ticket; or giving false information to anyone whose duty it is to make such records." It is fairly clear that rule 4 refers to the type of conduct Grace had described ; i e. cheating or falsifying such things as a timecard or work ticket in order to receive pay that was not earned. 23 llix testified : "Well, this is a method for controlling the flow through the plant of the goods and also for the individual to be able to find out exactly what they have done and what their earnings should be-each one of the tickets has the rate on it for payroll pur- poses, in determining how much the operator has earned in a certain period of time." u Work on samples is paid for on a time rather than on a piecework basis Presumably, this is because a, sample, by definition, is relatively unique and individual and relatively unrepetitive, thus not facilitating the establishment of a piece rate. The rate a worker is paid for sample work is determined by an average earned by the worker on her piece- work, daily, over a 4-week period The money earned in piecework and the total hours thereon are averaged in order to determine the worker's rate for samples. z Santana, Torres, Perez, and Cartagena did not testify. PURITANA MANUFACTURING CORPORATION 527 wrong. She said that she would attach the coupons to the work as completed if this was what the Company wanted, but that, as to her past practice, her supervisor, Torres, should have told her if the procedure she had been following was wrong. Delgado was then sent back to work and she proceeded to attach the work coupons to her production sheet for the work she had performed that morning before going to the office. Later, in the morning, Torres told Delgado to report again to the office and wait for Grace. After waiting until 12 noon, Delgado was told to go to lunch and return at 1 p.m. to wait for Grace. During her lunch period Delgado was in front of the plant listening to the organizing talk of the union organizers. Returning to the plant office, Zayas told her that now the situation was worse and she was terminated. She asked to speak to Grace and demanded a letter setting forth the reason for her termination 26 This was refused but the next day she received a letter stating that her employment had been sus- pended (terminated) "for just cause." We have referred to Grace's testimony that the production sheet-work coupon system was instituted to prevent cheating, i.e. an employee turning in work coupons for work not performed. Hix testified that he "believed" that in the past he had told the girls to place the coupons on their production sheet as they performed the work, with the exact time thereof to be noted. From Hix's explanation it is apparent that the primary situation he had in mind was the prevention of cheating by an employee.27 Grace testified that Delgado was discharged for falsification of records, to wit, that, on March 30, she had not been engaged in production from 4:30 to 5 although her production sheet showed that she was working during that time. Although Delgado had worked for Respondent for practically the entire 3 years since it had acquired the plant, Grace admitted that she had never been accused of claiming production pay for work that she had not performed. Delgado was a pieceworker who customarily or always. exceeded her quotas and Hix admitted that "she made a lot of money." Respondent's rules regarding piecework, including the production sheet and the work coupons, were designed to prevent cheating and the plant rule previously described, concerning timecards and work records, was also directed against cheat- ing. However, on March 30 and 31, neither Grace nor Hix discussed with -Torres, Delgado's immediate supervisor who was closest to the actual situation, the facts as to Delgado's actual work on March 30 or the manner in which the production sheet had been filled out. No effort was made to ascertain whether it was -untrue that, on March 30, as the production sheet showed, Delgado had worked on samples from 8 to 11.30 and that she had thereafter actually produced the piecework reflected on the production sheet by the specific coupons pasted thereon 28 Nor was it challenged that the piecework or.sample work production for the day was adequate and either equated or exceeded the production quota. If Delgado had performed, more production on March 30 than she did, her earn- ings would have increased, and this, -in turn, would be ultimately reflected in a 11 Grace had directed that Delgado be discharged. aT Hix stated that, if the coupons were not pasted to the production sheet ,as each type of work was performed, an employee working on samples for a time might then,go wn • to piecework and would be performing piecework during the period when her production, sheet showed that she was working.on samples. The employee would 'thus •be paid.-for samples and piecework during the same -period. Thus, an employee actually worked on samples from 9 to 10 and then went on to piecework. On her production sheet, she showed that she was -on samples from 9 to 11. • This would result in sample and, piecework pay for the same period. - ' ' .--, m As we have seen, the piecework came in bundles of one dozen items, with 'coupons attached that identified the particular items. It would seem that Torres or Hix were -in a position to ascertain whether the work reflected by the coupons on Delgados-produc- tion sheet had or had not been performed Also, since knowledge or,records of Delgado's past piecework production were no doubt at hand, and since, on March 30, 0elgado's sheet showed that-her piecework was for the period from 11 : 30 on, it could be ascertained whether her total piecework for the day was normal for the period of time claimed or -whether it indicated that she had also been doing piecework before 11: 30 when she claimed to be doing sample work. As to the sample work itself, it would seem•that Torres, the immediate supervisor, would have been in a .position to know if the samples actually worked on would normally require the time of 8 to 11: 30 by someone of Delgado's ex- perience or whether it was more likely that the work was performed in a much shorter period. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD higher average pay for sample work 29 But Respondent did not discharge Delgado because she did not produce the work shown on her production sheet, nor, because that amount of work was not satisfactory or more than satisfactory, nor because there was any evidence or attempt to secure evidence that she had worked on sample work and piecework when she showed only sample work on her sheet. The evidence is such and the lack of evidence to the contrary being such, we find that, on March 30, Delgado's production sheet accurately reflected that she worked on samples from 8 to 11.30. Thereafter, she produced her quota, or more, of piecework by 4:30. From 4:30 to 4:50 she prepared her production sheet and pasted thereon coupons for the work performed. In view of the factors dis- cussed in preceding paragraphs, as well as Delgado's uncontroverted testimony that she and her coworkers customarily followed this practice of attaching coupons toward the end of the day and did so without correction or admonition from their immediate supervisor, we find that the alleged falsification of records was not cheating i.e., claiming or collecting for work not performed or claiming or collect- ing at fraudulent rates. We are also of the opinion that while Delgado was not actually cutting materials or goods from 4:30 to 5, she was performing work that was required as part of her production work. At some point in the 8-hour day the employee was required to prepare her production sheet and physically detach coupons from bundles of goods and physically attach them at appropriate points on the production sheet.30 This paper work, however simple it may appear, required time. If Delgado had stopped after completing each unit of work and had proceeded to write on her production sheet and detach and paste the appropri- ate coupon, the total time consumed by these individual stoppages would pre- sumably have equalled, approximately, the time actually consumed by the paper work when it was performed, all at one time, from 4:30 to 4:50.31 The 20 minutes of paper work, if it had been distributed throughout the day as the work was performed, would have resulted in Delgado's performing combined cutting work and paper work until 4:50 p.m. Instead, Delgado first performed the cut- ting work and then from 4:30 to 4:50 performed the paper work.32 As was admitted, the cost to the Company and the production achieved, was the same under the aforementioned circumstances, and this is equally true with respect to the effort expanded and the pay earned by the employee 33 It was, of course, Respondent's prerogative to have and to enforce its own work rules. But in view of the evidence of the employees' practice, there is substantial doubt that Delgado violated an actually administered rule as to the time of attach- ing coupons. In any event, she did not knowingly violate the asserted rule and a Delgado's -admittedly high earnings generally were, of course, relative. That is to say, they were probably higher than those of other cutters performing similar piecework. This is the clear implication of Hix's admission that he thought Delgado made "a lot of money." If Delgado further increased her production and earnings , Respondent might have considered raising its quotas or reducing its rates or both, but the effect of this on the other pieceworkers, relatively lower producers and earners, would have to be considered. 80 Respondent states that this should be done as each unit of work is performed. We have discussed this in connection with our consideration of the actual practice followed by Delgado and other employees. ffi We must regard it as normal , in the absence of contrary evidence, that female produc- tion workers, hourly and piecework workers, and particularly high producing piecework- ers, would take 5 or 10 minutes near the close of the day to go to the restroom and that Respondent regarded such habits as unexceptional. 82A9 a matter of fact, it would seem that a number of individual interruptions in the manual work of cutting garments, then shifting to the paperwork, and returning to cutting, would interrupt the rhythm of the employee's manual work by reason of the shifting. It is quite possible that by cutting garments in succession and then , at the end of the day, preparing the paper work, a greater amount of productive work on the garments was accomplished and a lesser, or, at most, the same amount of time, was required for the paperwork than under the interrupted type procedure. s9 Employee production sheets were turned in or collected at the close of the day. There is no evidence that the supervisors checked these sheets during the day. Hix did not see Delgado's work sheet until it had been turned in on March 30. At 11: 30 a.m. or at other intervals during the day Delgado or others could have written down inaccurate times for particular work and the only check, as on March 30, was the amount of work allocated on the production sheet to particular identifiable work and a comparison of this with the actual completed work and the time normally required for such work. PURITANA MANUFACTURING CORPORATION 529 expressed a willingness to abide by the rule when it was expounded to her and she did, in fact, abide by the rule immediately after it was explained. Moreover, the basic purpose of the rules was to prevent cheating or unjust enrichment and there was a total absence of these facts in Delgado's case. Indeed, no effort was made by Respondent either at the time of discharge or at the hearing to investigate or to establish the element of cheating. Delgado's immediate supervisor, who did not testify, was not consulted at the time of discharge and she made no assertions or recommendations concerning Delgado. As a matter of fact, Hix did not rec- ommend Delgado's discharge. Grace took the initiative and seized upon what, in view of our previously described analysis, was not even a technical falsification of records or, at most, a technical violation, involving no cheating or cost or loss to the Company or undue enrichment by the employee. In the light of these facts and the evidence of Respondent's knowledge or suspicion of Delgado's union activity, its strong opposition to the Union, we find that her discharge represented the seizure by Respondent of a convenient pretext to rid itself of a union sym- pathizer and adherent. This was violative of Section 8 (a) (3) and (1) of the Act 34 C. The termination of Felisa Nieves, Maria Velez, Placida Haddock, Edilia Nieves, Nelda Reyes, Rosa Julia Perez, and Felix Nieves We have mentioned previously that there was a dispute, based on a misunder- standing, between Respondent and employees in one of its departments. This matter involved the failure of seven employees to work on Holy Thursday.35 On the following Monday, April 19, 1965, Respondent discharged the aforementioned seven male employees. Their departmental fellow employees protested of Respond- ent regarding the matter and failing to persuade the Company to change its position, the employees walked out of the plant in protest on April 19. On Tuesday, April 20, these employees picketed the plant and urged other employees to assist them in their dispute by remaining out of the plant. An undertermined but fairly substantial number of employees joined the strike by the afternoon of April 20. On Wednesday morning, April 21, when Grace came to the plant, he testified that "an enormous mob of people" was outside the plant. These people were employ- ees who did not go to work as scheduled.36 Among those carrying picket signs were Felisa Nieves, Juan Pagan Martinez, Juan Ojeda, Felix Nieves, Nilda Reyes, Edilia Nieves, Rosa Julia Perez, and Maria Velez. During the morning or about noon, on April 21, Felisa Nieves spoke to the employees in front of the plant. She used a loudspeaker system borrowed from the Union. She urged the employees not to go to work but to support the strike that was taking place on behalf of the seven discharged employees afore- mentioned. Felisa Nieves also referred to the Union, urging that those who had signed union cards should support the strike. During the forenoon, on April 21. Grace and an assistant were taking moving pictures of the strikers and pickets and the general activity in front of the plant. Pursuant to a call from the Union, Conciliator Cruz of the Puerto Rican Labor Department, arrived at the plant at about 12:30 p.m. on April 21. In front of the plant, Cruz spoke with some of the strikers about the situation and then went inside the plant where he spoke to Grace in the presence of Knichel, Respondent's superintendent of the knitting department. Cruz spoke briefly with Grace about the strike and asked if Grace would meet with Cruz and a committee of the strikers for the purpose of trying to settle the strike and getting the people back to work. Grace was agreeable to the meeting. Cruz then went outside and returned with a committee consisting of employees Felisa Nieves, Pascual Ojeda, Teofilo Garcia, and Juan Pagan Martinez. The ensuing meeting in the plant, between Grace, Knichel, Cruz, and the committee, according to Grace and confirmed by other evidence, lasted approximately 11/2 or 2 hours or until approximately 2:30 p.m. We are satisfied from the evidence, that in the period of approximately 2 hours, the parties explored all aspects of the strike and reached agreement on the terms of a settlement. Such indeed had been the purpose of the meeting. During the 34 The fact that Delgado was terminated at a particular time and that other union people were not then or previously discharged is not determinative. There is no evidence that any situations had arisen with respect to other specific employees that offered a pre- textual situation comparable to that which had arisen with respect to Delgado. 35 The plant was closed on Good Friday. 36 There were few, if any, union organizers present 243-084-67-vol. 159-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting Cruz, after talking with Grace, had asked the employee committee if the employees were agreeable to calling off the strike and returning to work if the Com- pany reinstated the seven men who had been discharged on April 19. Cruz said that the Company agreed that everyone could return to work except Juan Ojeda.37 Felisa Nieves asked Grace if it was true that everyone could return to work the next day. He replied said it was and that he had nothing against anyone and they could all return except Juan Ojeda. Pascual Ojeda, a member of the committee, then went outside the plant and announced to the strikers that an agreement had been reached and everyone was to return to work the following day. Shortly there- after, Conciliator Cruz and apparently the balance of the committee emerged from the plant. Cruz announced that the strike must cease and that an agreement had been reached between himself, Grace, and the committee, and everyone could come back to work the following morning. There was no more picketing from this point on and the striking employees who were present dispersed to their homes.38 Grace testified that toward the end of the meeting in the company office, one of the employee committee, Juan Pagan Martinez, asked him if he would recognize the Union in the plant. Grace replied that he had nothing to do with the matter, that it was a matter for the employees. Martinez then said that he was going to the union office and would talk to Grace later. Later, on the afternoon of April 21, after all the events aforedescribed, a group consisting of Felisa and Felix Nieves, Teofilo Garcia, Nan Rolon, and a young man named Raul, drove to the union office in the city of San Juan about 5:30 p.m. At the union office in San Juan, Felisa Nieves told or reminded Sanchez, vice president of the Union, of the occurrence of the strike. She reminded Sanchez that there were "enough signatures," signed union cards, and suggested that San- chez might consider what could be done about union recognition or getting the Union into the plant. Sanchez replied emphatically that he had told her many times that it was not the time for a strike or uprising because the Company was in a position to defeat such a move and that she should go home, and that, since the Company was prepared to have them all return to work the next morning, they should return to work. Nieves and the others then left. Returning to the plant area, Felisa Nieves met Juan Pagan Martinez in front of the plant. Through a plant guard or policeman, they asked to speak to Grace. The latter came out and spoke to them in front of the plant. Martinez said to Grace that the employees would "for sure" be back at work in the morning. Grace said that some of the employees had been replaced and it was a big problem for him. He again said that Juan Ojeda would not be allowed to return to work. Respondent argues in its brief that no agreement to take back all the strikers, except Juan Ojeda, had been reached at the April 21 meeting between Grace, the conciliator, and the committee. In support of this position, Respondent points to Grace's testimony that early- in the meeting Grace had told Conciliator Cruz that he had hired some replacements for the strikers but that Cruz had said from the beginning that he wanted to settle the strike and had told him again, when Grace mentioned replacements, that his overall purpose was ". . let us see if we can get the strike settled." Grace does not contend that he mentioned replacements again during the 2-hour meeting that followed. As we have seen, it was later that eve- ning, after the meeting had ended and the conciliator and a member of the com- mittee had announced to those outside the plant that agreement had been reached and all strikers were to be returned to work on the following day, that Grace told Martinez and Felisa Nieves that he had hired' some replacements but indicated or implied, even then, by saying that it created "a big problem for him [Grace]" that he would handle the matter and that it did not affect the settlement. This implica- tion is borne out by the fact that although a replacement had been hired for Felisa Nieves on the morning of April 21, Grace did not tell this to Nieves when he was talking with her on the evening of April 21 about this very subject and at a time eT The Company took the position that it would not take back this individual because of certain misconduct in which he had engaged during the strike. 38 One of the plant shifts ended at 3 p.m. and another shift commenced at that time. Apparently most of the strikers, including employees who testified at the hearing, were on the morning shift that ended at 3 p in. By the time the settlement was announced on April 21, the time was evidently somewhere between 2: 30 and 3 p.m. Strikers on this shift did not report for work for the relatively brief time remaining. Employees on the shift that commenced at 3 p.m. did go to work on April 21. PURITANA MANUFACTURING CORPORATION 531 when it was clear that Nieves as well as the other strikers expected reemployment on the following day pursuant to the settlement.39 Respondent also cites the trip of Nieves and others to San Juan on April 21 and the subsequent conversation with Grace to support its argument that no agreement had been reached at the afternoon meeting with Grace and the conciliator. How- ever, in my opinion, it is clear that an agreement had been reached and it is uncon- troverted that Committeeman Pascual Ojeda and the conciliator had so announced to the employees outside the plant. Equally undisputed is that the picketing there- upon ceased and the strikers dispersed. We are satisfied that the subsequent trip to the union office in San Juan had a different objective in mind. As Grace testi- fied, Martinez, toward the end of the meeting in the company office had raised with Grace the possibility of the Company recognizing the Union.40 In San Juan, Felisa Nieves suggested, in substance, to the union vice president, that the time might be propitious for the Union to formally approach the Company for recogni- tion since the Union had obtained an adequate number of signed cards from employees and because there had just been a 3-day strike at the plant, a demonstra- tion of strength, and an occasion that had promoted a degree of militancy and solidarity among the employees in dealing with their employer. It is evident that Nieves had appraised the union vice president of the settlement agreement since his answer to her was emphatic that the employees should return to work on the following day and secure reinstatement as had been agreed to by the Company. We are not persuaded that the settlement made on the afternoon of April 21 was subject to ratification or approval by the union office in San Juan. No wit- ness, including Grace, testified to anything of that nature and it is clear, from what we have previously described, that the settlement was, and was announced as, a fait accompli on the afternoon of April 21 before any journey to San Juan. As to why Felisa Nieves and Martinez returned to the plant in the evening to talk to Grace and to emphasize that the employees would all be back at work on the following morning, there are two explanations. Martinez testified that he did not trust Grace and he wished to be sure that the settlement terms would be abided by. For this purpose, he returned and, in effect, reiterated the settlement terms to Grace, namely the return and reemployment of all the strikers on the following day. While there is probably some element of truth in Martinez' expla- nation, I believe that the evidence points more to the following. Although the strike over the discharge of seven employees on April 19 had been settled by agree- ment to reinstate all strikers, including the seven original employees aforementioned, Felisa Nieves, Martinez, and possibly others, thereafter proposed to the Union in San Juan that recognition of the Union should be sought by the Union. If the Union had agreed, Nieves and Martinez might have so informed Grace that eve- ning and might have made a formal demand for recognition. They might, if the Union had approved and had so advised them, have informed Grace that they would resume picketing if recognition was not granted. But none of these things took 19 After the talk with Grace, Martinez went through the neighboring village with a sound truck telling all employees of the settlement and to report for work on the follow- ing day. It is reasonably evident that, although settlement of the strike and the return to work had been announced outside the plant earlier in the day, all employees who had refrained from work in sympathy with the strike were not standing in front of the plant at 2 .30 to 3 p.m. on April 21 when the settlement was announced. The strike had started on the 19th, with picketing from 7 a in. and throughout the 20th, and, again, from 7 a.m. to 2.30 p.m on April 21. If an employee, many of whom were married women, came to work on the morning of April 21, for instance, saw the pickets, spoke to some of her coworkers or to some of the pickets about the issues, and decided not to go in to work, she probably stood around for 10, 20 minutes or an hour and then went home to attend to her children, household chores, or other matters. There were only about eight pickets carrying signs and not everyone who was refraining from work stood in front of the plant from 7 a in to 2: 30 p.m. when the strike settlement was announced. It was therefore not illogical that that evening Martinez should have gone around through the village advising everyone to report for work in the morning - so The Company had, of course, just negotiated a settlement of a strike with the con- ciliator and a committee of employees, one or more of whom were leaders in the union movement in the plant Martinez, therefore, evidently saw some prospect that the Com- pany might not be as opposed to union or collective-bargaining activity as it had pre- viously indicated. In any event, Martinez raised the possibility of recognition with Grace but did not pursue the subject when Grace answered as previously described 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place since the Union told Nieves to go back to work as agreed. Nor does the fore- going analysis in any way support the proposition that on the afternoon of April 21 an agreement was not reached or that, if reached, it was understood to be, or was, subject to approval by the union office in San Juan. The agreement had been made and the later talk with Grace by Nieves and Martinez was simply to underscore the terms thereof, not to serve notice of approval of the settlement. On Thursday, April 22, when the employees reported for work they were all taken back with the exception of Felisa Nieves, Maria Velez, Placida Haddock, Edilia Nieves, Nilda Reyes, Rosa Julia Perez, and Felix Nieves. All these women were informed by Respondent that they had been replaced and they were there- fore terminated. Grace testified that these were the only employees replaced. Felix Nieves was terminated April 22 on the ground that his job had been abolished. Grace testified on direct examination and, again, on cross-examination, that, on Tuesday, April 20, Respondent hired 4 replacements, and that, on Wednesday, April 21, it hired 29 replacements. Notwithstanding these facts, the only employ- ees whom Respondent refused to take back on the ground that they had been replaced, were the six female employees above-mentioned who were either union leaders or prominent activists in the Union. Seven male employees, as we have seen, were discharged on April 19. They, together with their male' supporters in the same department, walked out in protest on April 19 and continued on strike on the 20th and until the settlement on April 21. This group constituted the original strikers and they were the employees who had been on strike longest. It would seem plausible, therefore, that in hiring 33 replacements on the 20th and 21st, Respondent hired some people as replacements for the only employees whom it had discharged as early as April 19 or at any time during the strike, and who, with the other men from their department, had been on strike longest. Be that as it may, the overriding question is why, when Respondent hired 33 replacements on April 20 and 21, it took back all the strikers except the employees named above and rejected only them on the ground that they had been replaced. What happened to the 27 other replacements and why were not 27 other strikers told that they had been replaced? Since Respondent has offered no explanation for the foregoing, we must do the best we can to answer these questions. There is no evidence, claim, or indication that Respondent increased its total personnel complement during or after the strike. The contrary is more the fact. Grace testified to his concern and attention to costs and he was undertaking to reduce labor costs in the dye department by means of automatic equipment to replace labor. This reduction, in fact, did take place during the strike. In the looping and finishing department, Respondent had eliminated an entire operation, "first mending," in March 1965. Hix, supervisor of the aforementioned department, had been directed, shortly prior to the strike, to terminate three-named female employees in his department for lack of work but, since these three employees reported for work during the strike, they were trans- ferred to replace Nilda Reyes, Maria Velez, and Edilia Nieves, strikers and union activists. Also according to Hix, Carballo, a prestrike employee, was transferred to Rosa Julia Perez' job during the strike and no one, up to the time of the hearing, had been placed in Carballo's former job.41 Further proof that Respondent did not increase its employee complement is to be found in Grace's testimony that just before the strike, on April 19, Respondent had 440 employees and had the same number at the time of the hearing. Indeed, in its brief, referring to the afore- mentioned testimony of Grace, Respondent contends "... that no new employees were hired since April 22...." 42 41 When we consider that 4 of the unreinstated strikers, aforenamed, were replaced, not by newly hired employees, but by transferees within the plant, it is apparent that of the 33 new employee replacements hired on April 20 and 21 only 2, plus 4 transferees, were retained as replacements to justify Respondent's refusal to reinstate the 6 females pre- viously mentioned. This leaves a balance of 31 replacements who were hired on April 20 and 21, who are unaccounted for. 42 Nor were any new employees hired on April 22. It was on the morning of April 22 that the strikers returned to the plant to go to work and seven of them were discharged on the ground that they had been replaced prior to April 22. As we have noted, the newly hired replacements were hired on April 20 and 21. PURITANA MANUFACTURING CORPORATION 533 We are therefore confronted with this picture: 33 new employees hired as replace- ments on April 20 to 21; 43 all strikers, except 7, reinstated on April 22; no increase in total employee complement; only 2 of the 33 replacements, who were hired on April 20 to 21, were on the payroll on April 22 and these replacements, plus 4 nonstriking in-plant-transferees, constituted the total of 6 replacements who served as the basis for Respondent's termination of 6 strikers (and no others) on the ground that they had been replaced. In my opinion, the most reasonable, if not the sole, explanation of what hap- pened to the other 31 replacements who had been hired on April 20 to 21 is the following : Although Respondent denies that it agreed in a settlement agreement on April 21 to reinstate all the strikers except Juan Ojeda, I have found to the con- trary, and I believe that, pursuant to that agreement, but not in total compliance herewith, Respondent, in substance or in effect, said 44 to 31 replacements hired during the strike that it had, after their hiring, entered into a settlement agreement whereby it had agreed to take back all the strikers except Ojeda; it was in effect explained that since Respondent could not use 31 more employees, it would be obliged to dismiss 31 replacements to make room for the returning strikers 45 This was carried out. But, although the settlement obligation applied to all the strikers except Ojeda, Respondent elected to carry it out with respect to six female union adherents. Instead, in sharp contrast, it retained two new replacements and four transferees as replacements for the six and terminated the latter. The 6 replacements retained by Respondent could have been treated the same way as it had treated 31 other replacements as described above. Two of them could have been dismissed and four of them could have been restored to their former job or the same status that they had occupied but for the strike and but for the settlement agreement which entailed reinstatement of the strikers. I find that Respondent illegally discriminated against the six-named female strikers on the following grounds: The strike was protected activity under Section 7 of the Act. The puipose of the Act is the peaceful adjustment of disputes between management and employees and it protects particular activities as a means to the aforementioned end. The agreement of April 21 between Respondent and a com- mittee representing the strikers resulted in the termination of a legitimate and pro- tected activity, the strike. Respondent reaped the benefit of the strike termination pursuant to the settlement and, such obstruction of its operations as the strike rep- resented, ceased. In the circumstances of this case I believe that Respondent's refusal to reinstate all strikers, except Ojeda, as required by the agreement, con- stituted -a violation of Section 8(a)(1) of the Act. It is also my opinion that, prescinding from the settlement agreement, and assuming, arguendo, that there was no agreement, there was a violation of Section 8(a)(3) and (1) of the Act. The evidence, as I have analyzed it, demonstrates discriminatory manipulation by Respondent of its right to replace strikers. I am not addressing myself to a simple situation where an employer replaces some strikers and does not replace others and where some of those replaced may be the union leaders. Rather, I have a posture of events, where the evidence, in my opinion, shows a deliberate manipu- lation. Respondent had timely hired 33 replacements and would have been within its rights to refuse to reinstate the 33 strikers whom the replacements had replaced, regardless of whether the strikers thus affected were union activists or not. But Respondent, as I view the evidence, voluntarily waived the foregoing right with 43I am in agreement with Respondent's position in its brief, although made in a some- what different context, that a replacement of an economic striker is a replacement when hired and that the time when the replacement actually commences work is not determina- tive. I also agree that the newly hired employees, at the time of hiring, were hired as permanent replacements, albeit all new employees that Respondent ever hired were in a probationary status for 90 days " Whether Respondent actually went into any explanation is not important We are describing either what was said or what was the practical rationale of what Respond- ent did. 45 Some of the 31 replacements probably had never actually commenced work ; probably some had actually worked a day or a few hours . In any event, it is not uncommon for a strike settlement to provide for the reinstatement of strikers . In some situations, the employer will dismiss the replacements and, in others, it will retain the replacements in other jobs in addition to the returned strikers In the instant case, it is clear that 31 replacements were not retained. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to all the strikers except the six female activists here involved . The cir- cumstances and the evidence fully warrant the conclusion that the foregoing dis- crimination was illegally motivated and I so find. I find that this discrimination was in violation of Section 8(a)(3) and ( 1) of the Act . Finally, looking at both the settlement agreement and its breach, together with the manipulation of the replacement factor, as was the actual situation , I am of the opinion that the viola- tion of Section 8(a)(1) and (3) of the Act is clear. Felix Nieves, the remaining striker who was not reinstated , presents a slightly different situation from the other six nonreinstated strikers. Nieves had been employed by Respondent since the inception of its plant operation . For about a year prior to the strike he had worked in the dyehouse where he loaded drying machines with various garments , then watched the drying process , and removed the garments when dry. There were 10 or 11 such drying machines in the dye depart- ment and Nieves was the only employee who devoted full time to loading and unloading the machines . Two other employees who also, or primarily, devoted their time to inspection work on the garments , likewise tended some of the drying machines as described above with respect to Nieves . Nieves was on strike on April 20 and 21. While I have credited Felix Nieves with respect to some parts of his testimony, including his uncontroverted conversation with Supervisor Santana, described earlier in this Decision , there were other aspects where Nieves did not impress me as a candid and reliable witness . Both parties chose to wage the Nieves issue with one witness , the Respondent, through Grace, and the General Counsel through Nieves. Their largely uncorroborated and conflicting testimony on some points has made some of the factual issues difficult of resolution but I have made the following findings in accordance with my appraisal of the witnesses on particular points and the surrounding circumstances. The dye department was a troublesome one for Respondent from the standpoint of efficient operation . Department heads had been changed repeatedly and Grace himself was close to the operation because of the problems existing therein. After discussing the matter with Porter , Grace, in January 1965, ordered three new auto- matic dryers to replace the old manually operated dryers. The new dryers were of larger capacity than the old and they could be preset and left unattended. It was estimated that the cost of the new equipment could be recovered in 3 or 4 years by a saving of labor cost. According to Grace, the new dryers arrived the latter part of February 1965. One was installed in the first part of April and was in operation, together with the older dryers or some of them, prior to the strike. After Nieves went out on strike, Grace decided to begin the implementation of his plan to cut down on labor costs in the dye department . The two female employees , who were primarily inspectors but who had also tended the drying machines , were given the additional duty of tending all the dryers in operation , as well as their inspection work. Grace states that the second automatic dryer was installed "before the end of April," and the third one was installed on May 1. In view of the fact that precise data was avail- able to Respondent, I am construing "before the end of April," with respect to the second dryer, as on or about April 28 , or 29. Under the circumstances, I see no reason to construe the rather vague testimony in a manner more favorable to Respondent, such as April 22 or 23. It is my opinion that since Nieves was on strike for only 2 days, his job had not been abolished on April 22. Respondent initiated steps to abolish the job during the strike by having the two inspectors perform Nieves' work in addition to their own. But, before April 28 or 29 , only one of the new dryers was in operation. Assuming that the capacity of one new automatic dryer was equal to about three and a half times the capacity of an old dryer, it is apparent that on April 22, Nieves' job had not yet been abolished . The work was being performed by others but that does not equate with job abolition. The whole premise of the situation was that three new automatic dryers would replace 10 or 11 old dryers, thus elimi- nating Nieves, and with dryer operation and inspection being carried on by the two female inspectors. There was still work for Nieves prior to the strike when only one new dryer was in operation and the same situation prevailed during the strike, after the strike, on April 22, and until at least April 28 or 29. As a matter of PURITANA MANUFACTURING CORPORATION , 535 fact, the most accurate date of his job abolition would be May 1, when the third dryer was installed.46 Since Felix Nieves should have been reinstated pursuant to the settlement agree- ment which provided for reinstatement of all strikers, my reasoning and conclusions on this aspect are the same as previously stated hereinabove. I also find that Nieves' job was not abolished until May 1 and but for his union activity, including his conjugal relationship with his wife, Felisa, the union leader in the plant, he would have been reinstated on April 22 and would have worked until May 1, 1965. I find that Felix Nieves was discriminated against in violation of Section 8(a)(1) and (3) of the Act.47 W. THE REMEDY Having found that Respondent has engaged in the aforementioned and described unfair labor practices, it will be recommended that Respondent cease such conduct or any like or related conduct. Customary remedial steps are also recommended, to wit, that Respondent offer the discharged employees, above named, except Felix Nieves, reinstatement to their former or to substantially equivalent positions, and make them whole for loss of earnings in accordance with the remedial policies out- lined in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Company, 138 NLRB 716. Felix Nieves' loss of earnings are to be computed in the same manner for the period from April 22 to May 1, 1965 and he is to be made whole for such period. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in interstate commerce within the mean- ing of the Act. 2. The Union is -a labor organization within the meaning of the Act. 3. Respondent has violated Section 8(a)(1) and (3) of the Act as found here- inabove in this Decision. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning membership in, or activities on behalf of, the International Ladies Garment Workers' Union, AFL-CIO, or any other union, or warning or threatening employees of the adverse economic consequences of membership or activities in the aforementioned or other unions. (b) Granting benefits to employees at a time and for a purpose of interfering with union activities or organization. (c) Discouraging membership in or activities on behalf of the aforementioned Union or any other labor organization of its employees by discharging or discrimi- nating against employees with respect to hire, tenure, or terms or conditions of employment. (d) In any other like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the purposes and policies of the Act. It is to be borne in mind that the dye department, according to Grace, was continu- ously behind schedule and there were also complaints about the quality of the work per- formed therein While two female inspectors might manage three automatic dryers, plus their inspection work, I am not persuaded that quality and quantity were wholly com- patible with the inspectors operating one automatic machine, six or more old machines, plus inspection This was the reason , in my opinion, why Nieves was still employed prior to the strike when only one new machine was in operation. And this is the reason why his job was still there until May 1 47 It is quite apparent that every employee who had signed a union card or who had participated in the strike or in picketing was not terminated. This is not a determina- tive consideration. The strike In its inception did not have a union complexion but it was the injection of the union aspect Into the strike as it progressed that alarmed Re- spondent and it resented this. The hard core union activists among the female employees, who evidently comprised the bulk of the personnel, were the danger, and Felix Nieves, al- though a union activist, was also the husband of the union leader in the plant. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Felisa Rivera Nieves, Iris Delgado, Maria Eugenia Velez, Placida L. Haddock, Edilia Nieves, Nilda Reyes, Rosa Julia Perez, immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of Respondent's discrimination against them, in the manner and to the extent set forth in the section of this Decision and entitled, above, "The Remedy." Felix Nieves is to be made whole for any loss of pay suffered in the period from April 22 to May 1, 1965. (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accord- ance with the provisions of the Selective Service Act and Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due, as provided herein. (d) Post at its plant in Puerto Rico, here involved, copies of the attached notice marked "Appendix." 48 Copies of said notice, to be furnished by Region 24,49 shall, after being duly signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, on all floors of its plant where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.50 4e 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 Board's Order be 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." +e The notices to be in English and in Spanish. w 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 the 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: WE WILL NOT interrogate our employees about membership in, or activities on behalf of, the International Ladies Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT warn or threaten our employees that they will suffer economic or financial loss because of union membership or union activities. WE WILL NOT grant benefits to employees in order to persuade them to stop their union activities. WE WILL offer reinstatement to their jobs and backpay for wages lost to Felisa Rivera Nieves, Iris Delgado, Maria Eugenia Velez, Placida L. Haddock, Edilia Nieves, Nilda Reyes, and Rosa Julia Perez. WE WILL offer backpay for wages lost to Felix Nieves for the period pre- scribed in the Trial Examiner's Decision. WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of their rights under the law to join or not to join the International Ladies Garment Workers' Union, AFL-CIO, or any other labor organization. PURITANA MANUFACTURING CORP., 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. GREAT DANE TRAILERS, INC. 537 If employees have tiny question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station , Santurce, Puerto Rico 00910, Telephone 724-7171. Great Dane Trailers, Inc. and Truck Drivers and Helpers Local Union No. 728. Case 10-CA-603. June 16,1966 DECISION AND ORDER On March 9, 1966, Trial Examiner Robert Cohn issued his Deci- sion 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 cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after the General Counsel and the Respondent filed exceptions to certain portions of the Trial Examiner's Decision and the General Counsel filed a supporting 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 [Members Fanning, Brown, and Jenkins]. 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 brief, and the entire record in this case, and finds merit in certain exceptions of the Gen- eral Counsel. Accordingly, the Board adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the modi- fication noted hereafter. 1. We find merit in the General Counsel's assertion that the Trial Examiner erred when he failed to find that Randall Thompson was discharged by the Respondent because of his union activities. 2. On July 23, 1965, the Respondent interrogated Thompson about the Union and at that time threatened,to close the plant. On Mon- day, July 26, Thompson attended a union meeting and signed a union authorization card. He also secured a number of union cards and union literature and distributed the same to employees after working hours during the next several days, on the parking lot adjacent to the plant. On the morning following the union meeting, Leadman Burnett, a supervisor, asked Thompson how the union meeting went. During this conversation, Burnett named to Thomp- son the employees who attended the union meeting. Later in the 159 NLRB No. 39.