Finesilver Manufacturing Co.

FINESILVER MANUFACTURING COMPANY 923 employees to the positions which they held on that date, or to substantially equiva- lent positions, and make them whole in usual manner for any loss of pay, and that it bargain with the Union , upon request, in the situation as so recreated. As such action will fully remedy the effect of the unfair labor practices as herein found, it is unnecessary to consider alternative remedies proposed by the General- Counsel concerning the offer to the employees of jobs at Acme's other plants. [Recommended Order omitted from publication.] Finesilver Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO. Case .33-CA-f016. June 22, 1966 DECISION AND ORDER On January 24, 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 Examin- er's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to certain portions of the Trial Examiner's Decision and supporting briefs. 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. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner, with the modification noted hereinafter. Although finding that the Respondent had discriminatorily dis- charged five employees, the Trial Examiner concluded that the dis- charge of Felipa Palacios was proper because she had failed to obey a direct order of Superintendent Taylor to report to the downstairs office. However, a review of the context in which such alleged "insubordination" occurred establishes to our satisfaction that she too was a victim of a pretext discharge. Felipa Palacios, an employee since 1953, was a leading organizer and on Thursday, January 21, 1965, she distributed union cards and booklets to employees. On Monday, January 25, she was directed to report to President Mervin Finesilver in the plant's second floor 159 NLRB No. 80. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office whereupon he asked her if she thought she deserved to receive vacation pay and stated, "I want you to be loyal to me and I will be loyal to you." Testimony to this effect was _uncontroverted and as the Trial Examiner noted ". . . in view of Palacios' union activity, it is clear to what the loyalty comments referred." The following day, January 26, Palacios was again instructed to report to the second floor office where she was awaited by President Mervin Finesilver, Vice President Hertzel Finesilver, and a Mrs. Hughes, a supervisor who was an assistant to Plant Superintendent Taylor. At this meeting, President Mervin Finesilver said, "What is this I hear about you trying to form a union in here?" When Palacios feigned surprise and denied it despite further questioning, he said that some of the girls had told his brother that she was trying to form a union and urged her to be loyal to him and to the Company. Hertzel Finesilver advised Palacios, "If you want to be in the union, go to a place where they have one." . On Wednesday,- January 27, Mrs. Clayton, personnel manager, requesting Palacios to come to the second floor office where she was questioned by Mrs. Clayton in the presence of Mrs. Kuykendall, Respondent's other personnel manager,- about the Union, and Palacios again denied any union activity. Thereafter, Palacios continued her union activities including the holding of four or five union meet- ings in her home as well as procuring other employees to engage in union -activity. Her husband, - Gilbert, who was also active on behalf of the Union, was terminated on February 11, for discrimina- tory reasons. 11 On the evening of February 16, the night before she was dis- charged, employee Marie Contreras, who had been assisting Palacios in her union activities, warned Palacios that she had . heard that Palacios was going to get beaten up. . On February 17, while at work, employee Santos grabbed Con- treras by the' hair, dragging her, some 15 feet from her machine and, when someone attempted to intervene, Santos stated that Vice Presi- dent Finesilver had told her to bring Contreras to the office. There- after the two women went to the office where, in the presence of Fine- silver and through an interpreter, Santos asserted that Contreras had been giving, her union cards. Contreras,, who was crying, denied any knowledge. of the Union and was thereafter permitted to return to work. Later the same morning, Hertzel Finesilver passed by Palacios and, according to Palacios' credited testimony, told her, "You better keep your mouth shut if you know what is good for you." He con- tinued, "I mean it . . . I am getting sick and tired of it ... you better keep your -mouth shut or else I will shut it." We agree with FINESILVER MANUFACTURING COMPANY 925 the Trial Examiner's conclusion that 'Finesilver's remarks. were prompted by his discovery (through Santos) that employees were still engaging in union activity despite efforts to stamp it out. Shortly thereafter, Superintendent Taylor approached Palacios and told her that Mervin and Hertzel Finesilver wanted to see her in Finesilver's first floor office and she indicated she would see them at the second floor office. Taylor replied they wanted her at the downstairs office. When Palacios refused, Taylor discharged her. At another point in her testimony, when asked why she did not go as requested, she replied, "I am afraid. After Mr. Hertzel threat- ened me, I am afraid to go there now." Despite this context, the Trial Examiner concluded that Palacios had improperly refused a direct order to report to the downstairs office and was properly discharged for her refusal. We cannot agree. Palacios had been interrogated and threatened about her union activities in the Respondent's offices on three occasions, had received a warning from a fellow organizer, Contreras, the evening before, that she had heard she, Palacios, might be beaten up. On the same day as her alleged "insubordination," she had witnessed employee Contreras literally dragged by the hair to the front office for inter- rogation. Shortly before she herself was requested to report to the office, Hertzel Finesilver had warned her to "keep your mouth shut or else I will shut it." While an employer may exercise his normal managerial preroga- tives to maintain plant efficiency and discipline, the Respondent here exceeded all lawful bounds by engaging in flagrant and persistent interrogation and threats concerning employees', union activities. We do not believe that any failure-of Palacios' to report as ordered (apparently for interrogation and threats) was the reason for dis- charge. Taylor's own testimony is to the effect that, had Palacios asked to meet with the Finesilvers on the second floor he would have arranged that, and not discharged her; as already noted, Pala- cios indicated a willingness to meet the Finesilvers in the upstairs office. While Taylor may not have_preplanned to discharge Palacios at that time, all the circumstances -persuade us that he seized upon Palacios' reaction to his order as an opportunity to rid the Respond- ent of a leading union -adherent., -Accordingly, we conclude that Felipa Palacios' discharge was violative of Section 8(a) (3) and (1) of the Act. 1 Superintendent Taylor was instrumental -in carrying out the Respondent's campaign of interrogating and threatening .the employees, and he was directly responsible for the discharge of employee Mary Ramos on March 12, which the Trial Examiner found to be illegally motivated because of Ramos' union activity. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add to paragraph 2(a) and to the second paragraph of the Appendix following the name Mary Ramos, the words "and Felipa Palacios" and delete the word "and" following the name Abelardo Hernandez. [2. Add the following sentence below the signature line at the bottom of the Appendix : [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 This proceeding was heard before Trial Examiner Ramey Donovan at San Antonio, Texas, on June 28-30 and July 1-2, 1965, pursuant to an amended charge filed on April 15, 1965, and a complaint dated May 14, 1965. The issue is whether or not Respondent engaged in threats and coercive interrogation of its employees in violation of Section 8(a)(1) of the Act and whether or not Respondent dis- charged six named employees for their union activities in violation of Section 8(a) (3) of the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation, with its principal office and plant at San Antonio, Texas, where it is engaged in the manufacture of clothing. During a representative 12-month period, Respondent sold and shipped goods valued at more than $50,000 from its San Antonio plant to customers located outside the State of Texas. In the same period, Respondent purchased goods valued at more than $50,000 and these goods were shipped to its San Antonio plant directly from points outside the State of Texas. Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent employs approximately 600 employees, of whom about 500 are females. The plant consists of three floors. President of the Company is Mervin Finesilver. His brother, Hertzel Finesilver, is vice president. A. Events in 1965; Section 8(a) (1) violations 0 Felipa Palacios had commenced working for Respondent about 1953, and had worked with some intervals since that time. In 1965 she was operating a machine on the second floor as -a front pocket setter. Having been in contact with a union organizer a day or two before, Palacios distributed union cards and booklets to other employees on Thursday, January 21, 1965. On Monday, January 25, Pala- cios was directed to report to President Mervin Finesilver. During the ensuing conversation, in the plant's second floor office, President Finesilver asked her if FINESILVER MANUFACTURING COMPANY 927 she thought that she deserved to receive vacation pay. She answered affirmatively and the president said that he would give her the vacation pay but admonished her to make her minimum production every week.' President Finesilver then went ,on to say, "I don't want my place to be like Friedrich's,2 a bunch of animals fight- ing outside. I like to work with my people, you know, share their problems. And I want you to be loyal to me and I will be loyal to you." The foregoing uncontroverted evidence, including the timing and the reference .to a company involved in a union situation, indicated Respondent's early aware- ness of union activity among its employees and of Palacios' role therein. The reference to "loyalty" in context with the critical comments regarding the Fried- rich situation made the nexus between loyalty and union activity clear enough. What possible reason did the employer have for singling out a particular employee and speaking to her about loyalty unless there was something in her conduct that was deemed worthy of the loyalty reminder. In view of Palacios' union activity, it is clear to what the loyalty comments referred. It is equally clear that the admonition, be loyal to me and I will be loyal to you, carried, by implication, the corollary, that the Employer might not be "loyal" or favorably disposed to one whom he considered had not been loyal to him. These comments were the more impressive since the Employer in the same conversation had concretely demon- strated to Palacios the value of his good will on the matter of vacation pay 3 The following day, January 26, shortly after the commencement of work at 8 a.m., Palacios was again instructed to report to the second floor office. When she entered the office, there awaited her, President Finesilver and Vice President Fine- silver, and Mrs. Hughes, a supervisor who was assistant to Plant Superintendent Taylor. President Finesilver offered a chair and proceeded to interrogate her. He said, "What is this I hear about you trying to form a union in here?" When Palacios feigned surprise, the president said that some of the girls had told his brother that Felipa Palacios was trying to form a union. She denied it and per- sisted in her denial under further questioning along the same lines. At length, the president admonished her to be loyal to him and to the Company. Then, Vice President Finesilver said that, although he had nothing against the Union, he did not want those people running his business. He advised Palacios, "If you want to be in the union, go to a place where they have one." 4 Wednesday, January 27, Clayton, personnel manager, a supervisor, stopped at Palacios' machine and asked her to come to the second floor office. When Palacios arrived in the office, Clayton was present as well as Kuykendall, Respondent's .other personnel manager. Clayton said, "I guess you know what I want to talk about." Palacios said, "The union?" Clayton said, yes. The employee denied union activity and Clayton said that she "... just want[ed] to hear it from your own lips." 5 IA brief reference to Respondent's method of compensation will be helpful to understand the subject referred to in the conversation . Employees received a base rate, e.g. $1.25 per hour in Palacios' case. There was also an incentive pay that was dependent on the amount of work performed by "the employees. Employees were etpected to meet certain minimum standards of production. As to vacation pay, the plant was closed during the yearend holiday period. Employees who had met certain production standards were en- titled to receive vacation pay, but otherwise they apparently were not paid for the period of shutdown. On January 18, 1965, after the vacation shutdown, Palacios had spoken to President Finesilver about vacation pay. 2 A local company that had incurred a strike about a month before. 8 Palacios had had to ask for her vacation pay on January 18. President Finesilver .evidently had some reservations as to whether she should receive such pay in view of her production record . On January 25 he showed Palacios her records and asked her if she thought that she deserved vacation pay. She answered in the affirmative, although acknowledging, ". . . If you think I don't deserve it, well, you don't have to pay me " The president then informed her that he had decided that she deserved the vacation pay, following his remarks with ,the reference to Friedrich's, the importance of loyalty and the -fruits of loyalty. This Incident of January 26 is uncontroverted in the record Clayton did not refer to the January 27 incident in her testimony other than to state that she had never had a conversation with Palacios about the Union Based upon .observation and the record as a whole, I credit Palacios regarding the January 27 and the .earlier uncontroverted incidents, above. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •Thereafter, Palacios continued her union activities, including the holding of four or five union meetings in her home as well as procuring other employees to engage in union activity. Her husband, Gilbert Palacios, a presser in Respondent's plant, who was equally active in the Union, was terminated on Thursday, February 11 under circumstances that we shall later consider. A union meeting was held about February 14. On Monday, February 15, Clayton came to Palacios' machine and asked her if she was mad at her because Palacios' husband had been fired. Palacios said that she had no ill feelings toward Clayton. Clayton said that she had heard that Palacios was unhappy at her job. The latter denied it. Clayton then remarked that she had heard that Palacios was with the Union. This, too, was denied. Clayton testified that because of illness she was not at the plant from February 4 to March 1 and that she had verified this fact with her doctor. Palacios had testified to her aforedescribed February 15 conversation with Clayton on June 28. Clayton testified on July 1. From June 28 it was evident that if Clayton had been absent from the plant from February 9 to March 1, an important attack on Pala- cios' credibility was available. This was one of the few situations in an entire case, beset by conflicting testimony of interested witnesses, where credibility might have been resolved by relatively objective evidence. Such evidence could have taken the form of testimony by Clayton's physician, or a certificate therefrom, or payroll or attendance records, or payments or records under Respondent's hospital- ization program, all particularly within Respondent's control. The sole corrobora- tion of Clayton as to time of absence was elicited through Barnes, Respondent's paymaster. Barnes neither produced nor referred to any records during her testi- mony and she did not state how she was aware of or recalled the precise time of Clayton's absence .6 On this same matter of Clayton's presence or absence in the plant around the middle of February, employee Valle had a doctor's certificate showing treatment of one of Valle's children on Saturday, February 13. Valle testified that because of the child's illness she did not come to work on Monday, February 15, but that she did come to work on February 16 and spoke to Clayton in the plant on that date. While this witness did not have a perfect memory for dates and while she may have been mistaken, her testimony tends to indicate that Clayton may well have been in the plant around the middle of February. Employee Kenisky has been with the Company since 1949. She injured her back in the plant on February 11, 1965. This date is established by Kenisky's testimony and by a notice of hearing on the February 11 injury, issued by the Industrial Accident Board. Kenisky testified that as a result of the accident she was unable to come to work on February 12 and she called the plant on that date and asked for Clayton, as was customary under such circumstances. A person then came to the telephone and said to Kenisky that she was Clayton. They thereupon discussed the accident and Keni- sky's inability to come to work. Kenisky testified that, since 1949, she had talked to Clayton on the telephone many times in connection with absence and she knew Clayton's voice. Kenisky stated that on February 12 she recognized the voice as Clayton's in the person with whom she spoke and who had expressly identified herself as Clayton. Considering all the evidence, including Respondent's failure to produce available evidence to establish the precise period of Clayton's alleged illness and `absence in the fact of controverting evidence, I credit Palacios' testimony, above, regarding a conversation with Clayton on February 15. 6 There seems no doubt that Clayton had been out sick early in the year but it is not at all clear how Barnes knew or recalled that Clayton was out on February 9 and was not present on February 15 or that these dates were more accurate for any reason in preference to, for instance , February 10, and February 16, or February 8 and February 114, respectively, or any similar dates around the same period. Barnes was asked: Q. Do you recall that she [Mrs. Clayton] was off work during the month of February of this year at any time? A. Yes. Q. Do you recall why she was out? A. Well, I believe she-I know that she had a sore throat and that she had or was on, the verge of having pneumonia at that time. Barnes herself did not state the dates of Clayton's absence. She was told that Clayton had testified that she was out from February a, to March I and Barnes said that she knew That Clayton w•n9 out during that period. FINESILVER MANUFACTURING COMPANY 929, Gilbert Palacios was a presser on the first floor of the plant. He had com- menced work for the Company around 1954. Together with his wife, Felipa, he was the key union contact among the employees. He signed a union card; talked to other employees about the Union; distributed union cards and literature; and union meetings were held in his home. On January 27, 1965, Presi- dent Finesilver called Palacios to his office.? Finesilver said that he had paid Mrs. Palacios her vacation pay and Gilbert Palacios thanked him. The president then said that some of the girls had reported to Vice President Finesilver that Felipa Palacios was trying to organize a union in the plant. The president said he was shocked. Gilbert Palacios said that it was not true. Finesilver then asked him if he had anything to do with the Union and Palacios said, no. Finesilver admonished Palacios to report to him or his brother if he learned of any employee engaging in union organizing. As Palacios was leaving, Hertzel Finesilver came in and much of the foregoing was repeated at his request. The latter then told Pala- cios that he had nothing against the Union but, if anybody wanted a union, that person could go to a plant where there was a union. Mervin Finesilver again elicited from Palacios an affirmation that he was not connected with the Union. Mervin Finesilver offered to give Palacios money if he needed it, as a demonstra- tion of friendship and good will toward Palacios. The following day, January 28, Mervin Finesilver again accosted Palacios in the plant and asked him if he was sure that he was not connected with the Union. Finesilver said seven or eight employees had reported that Palacios was trying to form a union. Palacios again denied such a fact and Finesilver once more asked him if he was in need of money which Finesilver offered to loan or to give him. Hertzel Finesilver joined them and repeated the report from the informers, above, and Palacios again repeated his denial. Employee Mary Ramos testified without contravention that, around the middle of February 1965, Personnel Manager Kuykendall spoke to her at her work table. Kuykendall said that Mervin had instructed her to warn the girls about being solicited to sign union cards; that they were not supposed to sign such cards because Mervin would find out about it if they did, and they would be fired. Kuykendall then reminded Ramos how well the Company treated the employees and that they made $1.25 an hour and were assisted when they were ill and were loaned money and so forth. Ramos observed Kuykendall talking to the other girls on the same day and she saw Superintendent Taylor talking to the men but Ramos did not overhear the conversation. Ramos, who had in fact signed a union card and had attended meetings, was spoken to by Hertzel Finesilver early in March. He said that he thought she was his friend. She said she was and he asked her why she wanted to stick a knife in his - back by pushing the Union. She denied it but he said he knew otherwise. Later, Superintendent Taylor came to Ramos' table and accused her of pushing union cards, expressing surprise that she, a long time employee, should do so. Employee Elena Hernandez testified without contradiction that, around the mid- dle of February, Kuykendall spoke to her in the plant and asked if she had been solicited to sign a union card. Hernandez said, no. Kuykendall told her she could sign but Finesilver would close the factory or turn it into a warehouse. Hernan- dez also observed Kuykendall talking to other girls on that day and saw Taylor speaking to the men: - About March 4, Hertzel • Finesilver called Elena Hernandez to his office and said that he knew that she and her husband, Abel, an employee, were in the Union. She. denied it but he then proceeded to read some questions and answers to her about union activities. One of the situations thus read was that the Union paid employees nothing for union activity, except when they picketed, for which the pay was $1. Another question and answer that was read was to the effect that an employee who was discharged could secure no unemployment compensation. Finesilver said that he was not going to worry about his brother being ill and hav- ing the plant go union and that he would just close the factory or turn it into a warehouse. Abelardo (Abel) Hernandez, an employee and husband of Elena Hernandez and a presser like Gilbert Palacios, was approached at his work by Mervin Finesilver about a week after Palacios' discharge on February 1.8 Finesilver asked Heman- 7 The following evidence is uncontradicted. 8 This evidence is not controverted. 243-084-67-vol. 159-60 '930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,dez if he had anything to do with Palacios about union activities. The answer was, no. Finesilver left and returned asking Hernandez if he was positive about his answer. He asked the employee if he was loyal to the Company.9 About February 17, Foreman Cardenas, according to Hernandez' uncontroverted testimony, spoke to him in the plant. Cardenas said that Hertzel Finesilver was positive that Hernandez was in the Union and engaging in union activity. Car- denas said that there was enough stock on hand to last a year and the factory could be closed down. He admonished Hernandez not to get involved in the union activities. Again, on March 4, when Hertzel Finesilver was interrogating Elena Hernandez, above, Cardenas told Hernandez that he was sure that the two Hernandez were involved in union activities and he had been so advised. Cardenas said that he was their friend and that he would not like to see Hernandez and his wife mixed up in the Union and getting into trouble. He said the Finesilvers had sufficient money and could close the factory.lo On another occasion, in February, Hernandez observed Superintendent Taylor talking to the male employees individually. He overheard some of what was said and it was substantially the same as what Taylor said to Hernandez on that occa- sion. Taylor admonished Hernandez about the Union and signing cards. Later, Taylor spoke to Hernandez alone in the stockroom. He said that he had heard Hernandez was in the Union and had been going to meetings . Taylor said the Union only wanted money. He asked Hernandez to tell him who was pushing the Union and Taylor would straighten out that person." Other employee wit- nesses also testified to the fact that Kuykendall, with respect to the female employ- ees, and Taylor, with respect to the male employees, interrogated employees, threatened them and warned of the plant closing because of union activity, using substantially the same language hereinabove described in detail. Vito Fabian had signed a union card and had attended meetings . On Febru- ary 10, Mervin Finesilver gave him a check for $25 to help offset medical expenses that Fabian had incurred because of an illness of his child. The following morn- ing, Finesilver called Fabian to his office. The president said that last night he had been informed that Fabian was involved in the Union; he pointed out to Fabian how just yesterday he had helped him out. Finesilver asked if Fabian had signed anything in the Union and was told, no. The president said that he had nothing against the Union and they could form unions but not in his plant. He went on to say that, if he knew of anyone trying to form a union in the plant, he would discharge him. Finesilver said that he had people in the plant who kept him informed.12 There can be no doubt that Respondent engaged in flagrant violations of Sec- tion 8(a) (1) of the Act and it is so found. It is equally clear that Respondent's opposition to unionization was strong and determined and this factor cannot be ignored in appraising the discharges of various employees who were active in the Union. B. The discharges Gilbert Palacios and Vito Fabian: Palacios had commenced his employment with Respondent in 1954. As we have seen, he was active in the Union. Respondent's officers, the Finesilvers, had interrogated him regarding his union activities and had received reports from employee informants that he was active in the Union, above. Fabian had been with the Company since May, 1963. He worked on a press next to that of Palacios. He had signed a union card given to him by Pala- cios and had attended union meetings, as well as passing out a few union cards. He, too, had been interrogated by Respondent concerning his union activities above. There is considerable conflicting testimony by the witnesses of the General Coun- sel and Respondent concerning the facts and details surrounding the termination of Palacios and Fabian. Some of the details are not material. 9 Hernandez had, in fact, signed a union card for Palacios , had attended union meetings, and had passed out cards. 10 This testimony is undenied. n This testimony is undenied. As we shall see, Fabian and Gilbert Palacios were discharged that afternoon, February 11. The above evidence regarding Fabian's conversation with the president is uncontradicted - FINESILVER MANUFACTURING COMPANY 931 I find that on February 11, around 1:30 p.m., an employee named Giron, came to Palacios' machine and said that Reuben Gonzales wanted to see him in the restroom.13 Fabian, who worked next to Palacios overheard the conversation. Palacios then went to the restroom where Gonzales was awaiting him. A short time later, Fabian went to the restroom where he saw Gonzales and Palacios talking and arguing.14 The two were standing in the washup area of the restroom and not in the somewhat separated area where the other restroom facilities were. Fabian said nothing to the two men when he entered but went to the latter area. Gonzales admittedly accused Palacios of having been saying to other employees that Gonzales was a "brown nose," with respect to the Company on the union matter. Palacios testified that Gonzales accused 'him of telling employees that Gonzales was a stool pigeon. Palacios replied that he considered Gonzales a fore- man and he had warned employees that Gonzales would probably report to the Finesilvers any umon conversations that they had with Gonzales. The language between the two became strong and heated. Fabian emerged from the restroom proper and into the physical area of the argument. Gonzales admittedly accused Fabian of being a sympathizer and cohort of Palacios, pointing out that they worked together and were friends and that Fabian backed up Palacios on every- thing. Words were exchanged between Gonzales and Fabian and they agreed to step outside to fight. Fabian walked first, followed by Gonzales, with Palacios bringing up the rear. Palacios told Gonzales to forget the whole thing but was unheeded. The evidence is quite clear that when Fabian and Gonzales reached the loading dock, which was outside and near the restroom, Gonzales pushed Fabian off the dock. Equally clear is the fact that Fabian spoke meekly to Gonzales and told him that he did not want to fight. In Gonzales' words, ". . . I pushed him [Fabian] down, that is when he got scared ... He is a little guy ... he started talking real nice ... he didn't want to fight me . . ." At this point, Folger, assistant to Fine- silver, who had heard that two employees were fighting outside the loading dock, came on the scene and told Gonzales and Fabian to go back to work. During this fracas on the dock, Palacios had not been present and had not been a participant. He had gone back to his machine after coming from the restroom. Although the stockroom and loading area were on the first floor of the plant, they were over against the exterior wall of the building. The pressing department where Palacios, Fabian, and others worked, was also on the first floor but more interiorally situated, although not far from the loading and stock area. After Folger had told Gonzales and Fabian to go back to work, Gonzales walked in from the loading area toward the vicinity of Palacios' pressing machine. There- upon heated words flew back and forth between Gonzales and Palacios and both men doubled their fists as preparatory to fighting.15 Gonzales advanced upon is Gonzales had been employed by the Company approximately 10 years. He worked in the stockroom as distinguished from the pressing department where Palacios, Fabian, and others worked. Gonzales was paid about $1.621/ per hour whereas the other men in the stockroom received $ 1.25. Gonzales had minor or borderline supervisory functions in the stockroom but, in our opinion , was not a supervisor but more of a group leader. He had expressed his opposition to the Union to other employees, such as Palacios 14 Gonzales denies sending anyone for Palacios . His version is, in effect, that the en- counter was coincidental and that Palaclos was there when Gonzales entered, with Fabian coming in afterward . Although possible, the alleged coincidence is not convincing since Gonzales admits that for some time he was aware and incensed that Palacios had been talking about Gonzales' attitude toward the Union and this, in fact, was the crux of the argument between the two that ensued in the restroom. Gonzales also testified that no supervisor had ever talked to him about the Union and that he was completely unaware of what Respondent's feelings were about a union . This is surprising in view of the widespread uncontroverted evidence in the instant case regarding Respondent's open opposition toward the Union in 1965 . Moreover, one of Respondent's witnesses, an em- ployee, testified that she had been in the plant for 21 years and during that entire period a union had been trying unsuccessfully to organize the plant . Yet, in 1965, and in the 10 years of his employment, 'Gonzales purportedly was unaware of the disposition of Respondent on the union subject. This matter of how Palacios and Gonzales came to- gether in the restroom is important , in our view, only because it assists 'us in determining who was the initiator or the aggressor in the confrontation and in the subsequent happenings. 15 Fabian was in no way involved in this and succeeding aspects and apparently was not even nearby. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Palacios ^ and the latter stepped back n few paces away from Gonzales. Palacios drew out a pocketknife from his pocket, revealing a blade about 21/2 to 3 inches long, and held it in his hand, at his side, awaiting the advancing Gonzales. At this point, Foreman Cardenas intervened, interposing himself between the two men. One or two men, at Cardenas' command, grabbed Gonzales who was still struggling to reach Palacios. Palacios was not attempting to advance toward Gonzales and was standing, as described, in a defensive posture. At Cardenas' direction, Gon- zales returned to the stockroom and Palacios went back to work. The evidence satisfies me that Gonzales was the aggressor throughout the episode of February 11. Gonzales had summoned Palacios to the restroom and had casti- gated him there, as aforedescribed and admitted. Gonzales then turned his atten- tion to Fabian against whom he also launched a verbal assault. Outside the rest- room, Gonzales pushed Fabian off the dock and admittedly Fabian did not want to fight. Gonzales' own words , in his reference to Fabian as "a little guy ," is literally true and is indicative that Fabian was certainly not looking for trouble with the bigger and more redoubtable Gonzales. This is also true with respect to Palacios. The latter was of stocky build, somewhat on the fleshy side, in my opinion. Gon- zales, on the other hand was tall, lean, lithe, and muscular, and there is no ques- tion in my mind, and, I believe, in Gonzales' and Palacios' mind, as to who could handle whom in a fight. Indeed, Gonzales testified that Palacios knew that Gon- zales had fought other men in the plant in the past ,16 and, in describing his aggres- sion against Palacios at the pressing machines , abovementioned , Gonzales states, . I went towards him and I know I can take him easy [can beat him easily in a fight]," and, according to Gonzales, these facts, plus his past reputation as a fighter, are why Palacios stepped back and pulled out a knife, i.e., Palacios was afraid, physically, and was acting defensively. In short, Palacios and Fabian had wanted no trouble or physical combat with Gonzales about the Union or anything else. But commencing with the summons to the restroom , Gonzales had been the aggressor against each of these men. As mentioned, Palacios and Gonzales went back to work. No physical blows had fallen on either participant and no one had been hurt. Gonzales testified that he did not know why "they make such a big thing of it ...." About a half hour after the Palacios-Gonzales event, Mervin Finesilver directed Folger and Cardenas to tell Palacios, Gonzales, and Fabian to come to his office. This order was carried out. According to Respondent's witnesses, the substance of the ensuing events is as follows: When Cardenas told Palacios and Fabian to go to the office, Palacios said that he was not going to the office but was quitting. Palacios and Fabian then walked toward the timeclock, punched out their cards, while Mervin Finesilver was standing outside his office, standing next to the time- clock, and watching them. The two men paid no attention to Finesilver's direction to go into his office but, after punching their cards and addressing a dirty word to Finesilver, they left the plant. In short, Respondent's position, at the hearing and in its brief, is that the two men were not discharged but "quit of their own volition." I have difficulty in understanding why either of the two men would have quit under the circumstances described. They had each worked for Respondent, over a period of years. Palacios was the leading male activist trying to bring a union into the plant. He could do little good for himself of the union by quitting. By going to Finesilver's office, as directed, the worst that could happen was that he would be discharged. A discharge would at, least give him a. chance to contest the legality of the action. Also, he could have believed that he might not have been discharged if he went to the office and gave his side of the story. Quitting, on the other hand, was the end of the road, with no redeeming aspect. These observations are also applicable to Fabian, perhaps more so. Fabian had done nothing except endure a verbal assault from Gonzales and get pushed off the loading dock by the 'latter. It is difficult to comprehend why Fabian would have quit his job under the circumstances rather than have the vindicating facts brought out before Mervin Finesilver. Palacios and'Fabian testified that they were summoned to the office and, en route, they encountered Mervin Finesilver who was standing outside the office near the timeclock. Finesilver told them to punch out their timecards and go to the office. Both men did so and Fabian, who was slightly ahead of Palacios, proceeded to the office. Palacios, meanwhile, asked Finesilver, if that meant that he was dis- charged. Finesilver said, yes, that he did not want anyone pulling a knife on his 10 This fact was confirmed by Palaclos. FINESILVER MANUFACTURING COMPANY 933 boys. Palacios endeavored to explain the circumstances of the fight but Finesilver, gesturing, told him to get out. During this juncture, while Finesilver was saying, get out, Fabian came back from the office since he had observed Fmesilver and Palacios in conversation. He then assumed that Finesilver wished to speak to them outside the office. The only words that greeted Fabian were, punch your cards and get out. Fabian then went over to his press to get some items of per- sonal clothing and left the plant. Palacios went back to his press to change his shirt and then left. Amid the conflicting evidence of witnesses on both sides, I note that Palacios and Fabian, after the incident at the timeclock, did not leave the plant forthwith but returned to their machines for some personal clothing after their conversation with Finesilver. Foreman Cardenas had testified that when he told Palacios and Fabian that Finesilver wanted to see them in the office, Palacios said that he was not going to the office and was through with the Company. Cardenas states that Palacios thereupon took off his work shoes; changed to his street shoes; and went to the clock and punched out. Other witnesses of Respondent, for instance, Diaz, also testified that the two men went to the timeclock, punched out, and went out of the plant.17 But, if it was the intent of Palacios and Fabian, when notified to come to the office, to quit, they presumably would have taken their personal items with them on their way to the timeclock and would have then left the plant. Their return to their machines for personal items, after the encounter with Fine- silver at the timeclock, is more consistent with their discharge version than with the quitting version of Respondent. One of Respondent's witnesses, an employee named Munoz, does corroborate the fact that after punching out, Palacios did return to his machine for personal items, including a change of shirts. We regard as particularly significant the testimony of employee Plata and the surrounding circumstances. She was an employee whose work station was about 15 feet away from the timeclock. She testified that on February 11 she saw and heard Mervin Finesilver, near the timeclock, tell Palacios and Fabian to punch out. This witness also testified that, on the 'morning of June 29, 1965, the day she was to testify in this hearing, she had advised her foreman, Cardenas, that she had a subpena and was going to testify. Later, that morning, Hertzel Finesilver told Plata that he heard that she was going to testify. He said that she should tell the truth and she replied that she intended to do so. He said that the February 11 incident did not occur as she claimed but Plata said that she would tell what she had heard. Mervin Finesilver spoke to Plata thereafter and told her she was mixed up and that she did not remember what had happened because he had not discharged Palacios and Fabian. Superintendent Taylor also spoke to her along the same lines and Plata was nervous and crying as a result of this conduct, which aptly comes under the heading of pressure and harassment. I find that Palacios and Fabian were discharged by Respondent. Since Respond- ent has taken the position that the two men quit and were not discharged, and evaluation of Respondent's reason for the discharges is not possible. However, under the evidence in the case, including the pervading hostility toward union activity and the apparent wide use of, and the admitted availability of, informers, I find that the discharge was motivated by Respondent's knowledge of the union activity of Palacios and Fabian and that the February 11 dispute with Gonzales was used as a convenient vehicle for dismissing the two men.18 The discharge was in violation of Section 8(a)(1) and (3) of the Act. "Employee Diaz was an all around witness for Respondent . He testified to every aspect of the Palacios-Fabian-Gonzales affair and to all subsequent details. Diaz stated that he was in the restroom when the three men had their argument ; he saw what tran- spired outside on the dock between Fabian and Gonzales ; he witnessed the Palacios- Gonzales fight at ,the presses ; he heard Palaclos and Fabian summoned to the office by Folger; he happened to be over at the timeclock when they punched out; he saw and heard what the two men did and what Finesilver did. Despite his asserted omnipresence as a witness regarding every aspect of Palaclos' and Fabian's actions on February 11, Diaz, an employee of '13 years in the plant, testified that he never knew how the Company felt about the Union and that the Company had never told the employees not to join the Union or anything else on the subject of unions . In view of the uncontradicted evidence in this record, we can place little credence in Diaz' assertions. 18 As I have noted, Gonzales was at all times the aggressor with respect to, Palacios and in view of such facts an admission of discharge action by Respondent would have been unconvincing This was, of course, even more 'true with respect to Fabian. What eventually occurred was that Gonzales, an opponent of the Union, was retained and the two union men were terminated 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Felipa Palacios: The evening of February 16 Palacios received a telephone call at her home from a fellow employee, Maria Contreras. Contreras had been assisting Palacios in her union activities, securing names of various employees for the purpose. Contreras had signed a union card and had attended a union meeting. In the aforementioned telephone call, Contreras told Palacios that she had heard that Palacios was going to get beaten tlp. The following day, February 17, an employee, named Mary Santos, engaged in a fight with Contreras in the plant shortly after work had commenced.19 Testimony regarding the fight comes princi- pally from Contreras,and Santos as well as from Palacios and other women who were in the general area I have placed substantial reliance upon Contreras' testi- mony since she impressed me as a credible witness. Preliminarily, Contreras testified, without contradiction, that sometime around early February she had been summoned to the office to see President Finesilver. Present were the latter and Personal Manager Kuykendall. The president thanked Contreras for a Christmas present she had given him. He then asked her if she was the leader of the union movement, saying that he had heard this. Contreras professed ignorance of the Union. The president admonished her not to join the Union, saying that the Union was only interested in her money. She was then allowed to return to her place of work. On February 17, an undetermined number of days after the foregoing, conversa- tion, Santos came to Contreras' machine where the latter was working.20 Santos said that, because of Contreras, Santos had gotten into a big mess with Vice President Finesilver. Contreras said she did not know what Santos was talking about. Santos kept repeating that Contreras knew what she was talking about. Santos demanded that Contreras accompany her to the company office and grabbed her by the hair, dragging her about 15 feet from her machine. A male plant engineer intervened but Santos said that Vice President Finesilver had told her to bring Contreras to the office. The two women then went downstairs to the vice president's office. Present were the two Finesilvers. An interpreter was needed because of Contreras' limited English. Contreras was told that Santos asserted that Contreras had been giving her union cards. Contreras was asked if she belonged to the Union and it was stated to her that the Company did not want a union in the plant and that if she did not like it there, she should go elsewhere. Contreras, who was crying, denied any knowledge of the Union.21 Thereafter, Contreras returned to work. The evidence indicates that the situation was normal when, later in the morning, Vice President Finesilver came up to the second floor of the plant to the department where Palacios, Contreras, and others worked. Palacios had completed a bundle of work in her machine and, as was customary, she walked over to the table to pick up another bundle on which to work. En route, Palacios and Vice President Finesilver passed each other in the aisle, going in opposite directions. Palacios testified that she said, hello, to Finesllver and he came close to her and said, "You better keep your mouth shut if you know what is good for you." He continued, "I mean it .. . I am, getting sick and tired of it . . . you better keep your mouth shut or else I will shut, it." As Finesilver walked on Palacios said, " .. . you can fire me but don't threaten me." The vice president continued on and went downstairs. Pala- cios then saw Supervisor Hughes standing within 10 feet of her and she asked Hughes "Did you hear, Mr. Hertzel [Finesilver] threaten me?" Hughes replied that she had heard nothing. Hughes then went downstairs and returned. She said that Hertzel said that it was not true, that he had only told Palacios to "shut up or else." za L Palacios , in the course of the union campaign, had regarded Santos as sympathetic to the union movement and she had asked Santos to secure names of employees for the Union. )Santos never did in fact turn in any names to Palaclos or attend a union meeting. She was a witness for Respondent at the hearing and testified to her annoyance at the efforts, over a period of time, of Palaclos and Contreras to have her sign a union card. m Contreras' machine was about five machines away from that of Palaclos. Si Neither of the Flnesilvers or Kuykendall , who was also present, testified regarding this incident in the office. Respondent did not cross -examine Contreras. 22 Hughes did not testify. c FINESILVER MANUFACTURING COMPANY 935 Vice President Finesilver's version is that when he passed Palacios in the aisle she had a sneering grin on her face and he said, "you stay out of it" and continued' walking 23 There is no evidence that Palacios in any way participated in the Contreras-Santos fight either before or after the event. Finesilver offers, no explanation why, well after the fight and the return of the principals to work, without incident by Palacios or anyone else, he felt it necessary to say to Palacios, as he testified, that she should stay out of it. I do not understand why Palacios' alleged sneering grin should have given rise to Finesilver's warning,,to stay out of it. She was nevert in, it'and had done nothing to indicate that she was going to get into an already concluded incident. Indeed, if there was a grin on Palacios' face, sneering of otherwise, it is more likely that it gave rise to a warning along the lines testified to by Palacios than to anything else.. But, here again, I have difficulty in comprehending what Palacios had to grin about with relation to the Contreras-Santos fight. Contreras, a known union supporter, had been dragged in the aisle by Santos, a purported but dubious union sympathizer, and Contreras had then gone to the Finesilver office, at Santos' insistence, where Santos accused her of union activity and subjected her to interrogations and warn- ings by the Employer I regard the most reasonable explanation of what had occurred to be along the: following lines. Santos was or considered herself to be in trouble with Hertzel Finesilver about the Union She may have been interrogated or accused of union activitiesiby Finesilver.24 At any rate, Santos had told Contreras that, because of Contrera, Santos was in trouble with Finesilver. Santos assaulted Contreras in the plant, almost literally dragged her to the Finesilver office, accused Contreras of union activity to the Finesilvers, who, in turn, interrogated Contreras, on the subject. Thereafter, in my opinion, what prompted Finesilver to tell Palacios to'keep her mouth shut or he' would 'shut it,25 was the fact that he was incensed at the most' recent evidence (the Santos accusations against Contreras) that his employees were, still engaging in union activity despite efforts to stamp out the union movement. In view of Palacios' known pre-eminence in the union effort among the female employees, Finesilver expressed himself to her as aforedescribed as a warning that his patience was at an end and that she had better shut up and become quiescent regarding the Union.26 I credit Palacios regarding what was said to her and I believe that it was said forcefully and meaningfully and with no air of lightness or casualness?'? The evidence shows that after Palacios' encounter with Hertzel Finesilver on the second floor, Palacios spoke to various nearby employees and supervisors , referring to the fact that Finesilver had threatened her. She also said something to the effect that she would consult her lawyer. Through supervisors, the foregoing remarks of Palacios were reported to Finesilver and he instructed Superintendent Taylor to tell Palacios to come to Finesilver's office. si Floorlady Della Coy and employee Schroeder , called by Respondent , testified that all they heard Finesilver say to Palacios was, to stay out of it. Coy said that this occurred about a half hour after the Contreras- Santos fight . Supervisor Hughes , who was perhaps nearer than anyone to the event, denied, as we have seen , that she heard anything. 24 As the record will show, interrogations and accusations regarding the Union were a general tactic resorted to by Respondent. 25 To stay out it, according to Finesilver's version. 26 As stated before, I discern no other explanation for any remarks to Palacios on February 17 by Finesilver since she had done nothing and had said nothing about the, fight and had no connection with it. aT Among other things, I regard as highly unlikely that Palaclos would have asked Supervisor Hughes, who had been standing nearby, if Hughes had not heard Finesilver threaten her, If Finesilver had simply told her to keep out of it. First of all , an employee would have little confidence that a supervisor would affirm to the employee that the vice president of the Company had threatened the leading union activist in the plant even if such was known to be the fact by the supervisor. Even more unlikely would be the prospect of such a supervisor saying that the employer had threatened an employee if all that had been said was, to stay out of it. What possibly could have prompted Palacios to appeal to a supervisor for corroboration unless there was some factual basis for her assertion. '936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor testified that he went to where Palacios was at work and spoke to her in a normal tone, saying, "Felipa, Mr. Hertzel wants to talk to you in his office." According to Taylor, Palacios threw down her scissors, jumped up, and said in a loud voice, "I am not going down to that office even if they fire me." Taylor then told her, in substance, that she would either have to go to the office or be discharged. She refused to alter her position and Taylor thereupon dis- charged her on the spot. Palacios testified that, when Taylor came up to her, he told her that Mervin and Hertzel wanted to see her. She asked whether it was in the second floor office and Taylor said, no, she would have to go to the Finesilver office on the first floor. She then said, "I am afraid to go there and they know that I never go there." Taylor told her she would have to go or pack her things and leave. She asked, did that mean that she was discharged and he said, yes. Palacios, on her way out, told Taylor she was going to the Labor Board 28 At another point, Palacios testified that, after Taylor gave her the message to go down to the Finesilvers' office, she said, "Tell them to com: up here to this office [on the second floor], that I will talk to them here." Taylor, according to Palacios, said "No, they want to see you downstairs." She replied, ". . . they know better than that . . . They know that I don't go there and I am afraid to go there to that office." Taylor then told her to pack her things. Later, at another juncture, after repeating most of the foregoing, Palacios testified that Taylor, in the conversation, had asked her, why she did not want to go to the Finesilver office. She assertedly replied, "I am afraid. After Mr. Hertzel threat- ened me I am afraid to go there now." The offices of the two Fineslivers were adjacent on the first floor. They did not have offices on the second floor although there was an employment office there normally used by Kuykendall and other supervisors. On occasion, as we have seen, the Finesilvers had spoken to employees in the second floor office, but, normally, employees were called or went to the first floor offices when occasion arose. Such occasions were not unusual in day to day operation. Palacios testified that she had never been in the Finesilver offices although she had been in the secretary-receptionist's area that was just outside the private offices. According to Palacios, her husband, Gilbert, an employee on the first floor, had told her several years ago not to go to the Finesilver offices because male employ- ees, who worked on the first floor in view of the offices, made disparaging remarks about female employees who were seen going into the offices. Palacios testified that on January 27, 1965, Kuykendall had told her President Finesilver wanted to see her in his office. Palacios told Kuykendall that she would see him in the office on the second floor. Kuykendall apparently relayed this message and the president came to the second floor office where he talked to Palacios, as described earlier in this Decision. Among other things, on that occasion, the president had asked her why she had refused to come to his office. She explained her husband's instructions as described above. The president laughed and said, in effect, that he would accom- modate himself to the situation. Assuming Mervin Finesilver's awareness of the foregoing Palacios' "rule" on one occasion, there is no evidence that Hertzel Finesilver was aware of such a private "rule" or would have been willing to adjust to such a norm. It is also clear that Taylor was unaware of such a norm or rule. Taylor's testimony, that, when he went over to Palacios' machine to tell her that the Finesilvers wanted to see her in the office, he had no thought of discharging her, is credible.. Nor is there a reasonable basis for me to conclude that Hertzel Finesilver and Taylor had beforehand decided that they would summon Palacios to the office and she would refuse to come and that she would be, discharged. Hertzel Finesilver is the one who directed Taylor to have Palacios come to the office and neither he nor Taylor knew anything about. the Palacios' "rule." Taylor discharged her on his own responsibility, without consultation with the Finesilvers, when he was confronted with what appeared to be a clear case of insubordination. In my opinion, Palacios, unfortunately, from her standpoint, and, unintentionally perhaps, had placed herself in an untenable position with respect to Taylor, in the presence of other employees, when she refused to go to the Employer's office. I do not believe that Palacios was placed in the position of a constructive dis- chargee, particularly with respect to Taylor, who made the decision to discharge her. As a matter of fact, this matter of Palacios' private rule about not going to 28 1 believe that the foregoing account reflects what occurred. FINESILVER MANUFACTURING COMPANY 937 the Finesilvers' offices has been troublesome to me. Palacios had, in the past, been, in the enclosed area of the executive offices on various occasions and had talked in that area to at least the president, concerning her vacation pay on January 18. True, she had apparently not gone inside the actual private office of the Finesilvers but, on February 17, she could have gone down to the office area and could have attempted to speak to the Finesilvers there, explaining her position.29 I am not persuaded that any apprehension Palacios had about going to the office on February 17 was of a physical nature although she may have anticipated further illegal interrogation and possibly a threat of discharge or actual discharge.30 More important than Palacios' motivation, however is the motivation of Taylor in dis- charging her and, on the evidence, I do not conclude that the General Counsel has sustained the burden of proving that Palacios' discharge was in violation of Section 8(a)(1) and (3) of the Act31 Elena Hernandez and Abelardo Hernandez: I have seen that Elena Hernandez had been interrogated by Personnel Manager Kuykendall and by Hertzel Finesilver in February and in early March 1965. Among other things, the latter had informed Elena Hernandez that he knew that she and her husband were in the Union. She was summoned to Hertzel Finesilver's office on March 12 and he, with Fore- man Cardenas, there accused her of having threatened other girls to sign union cards and discharged her for that asserted reason. Earlier in March Finesilver had warned her that he had reports that she was threatening other girls to sign union- cards. She consistently denied having threatened anyone and denied that Finesilver had earlier spoken to her on the subject. I find, however, that she had in fact been spoken to earlier by Finesilver about reports he was alleged to have received concerning Elena's threats. The balance of this conversation has been earlier described, and should be read again in the present connection. In evaluating the facts, I find, on uncontradicted evidence, that Elena Hernandez had first heard about the Union through her husband, Abelardo, a presser in the plant, who had signed a union card for Gilbert Palacios in February. Although asked to sign a union card, Elena was reluctant and had not done so. At length, -her husband brought the union organizer, Rodriguez, to his home to speak to his wife about the Union. She then signed a card on March 4. She testified that she had never passed out union cards and had never threatened anyone at the plant or away from the plant about signing union cards. Hertzel Finesilver testified that Foreman Cardenas was the one who had reported to him about Elena Hernandez threatening other girls. He also testified that employee Stella McBurney had complained to him about having been threatened by Elena. Cardenas testified that his source of information about Elena Hernandez' threats was Stella McBurney and employee Aurora Medina. Cardenas states that, when McBurney reported to him, he asked her if she thought that Elena had been joking in making the threats but McBurney replied, "No, she was dead serious." The report to Cardenas from Medina about Elena was thus described by Cardenas: she [Medina] notified me that other girls had said, had said that Elena had threatened other girls ... McBurney, a witness called by Respondent, testified' that one day she was work- ing next to Elena when the latter asked her if she wanted to join the Union and "The Palacios' rule, as we have seen, was concern about remarks of male employees, co-workers with the husband of Palacios. As the latter explained ". . . they started joking about the women who went in there (the office], and since my husband worked with them I didn't want him to have no disagreement with nobody [ if remarks were made about her, her husband might have an altercation with the speaker and, this she wished to avoid]." The fact is that Palacios' husband had been discharged, on February 11 and of course was not in the plant on February 17 so that no altercation, was imminent about his wife going to the office. 8° Assuming that Palacios had expressed a willingness , on February 17, to see the Finesilvers if they came up to the second floor office , this would hardly be consistent with the idea that it was physical fear that prompted her refusal to go to the first floor office. The second floor office also was a place where the door and windows could be closed and, in fact, such a situation bad prevailed on a, prior occasion when Palacios was in that office with Mervin and Hertzel Finesilver and- was interrogated regarding the Union This was on January 26. 81 In the light of all the evidence in this case , I am aware that Taylor may have been pleased to have the opportunity to discharge a union activist and leader , but it is my opinion , as I have stated, that Palaclos had placed herself in an untenable position. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned her that she would get hurt if she did not and that she would be made to sign. This was repeated, according to McBurney. Thereafter, about a' week later, McBurney went on leave for about 2 weeks. Approximately 3 weeks after the alleged threats by Elena, McBurney returned to work. The first day she returned, one of the girls told her that Personnel Manager Kuykendall had been talking to all the girls about the Union. McBurney then went to Kuykendall and said she had heard that Kuykendall had, in her absence, spoken to all the girls about the Union and she asked Kuykendall what she had said. McBurney testified that she did not remember what Kuykendall told her. While McBurney conveniently did not recall Kuykendall's remarks, I have earlier referred to uncontradicted testimony that Kuykendall had, on a particular day, evidently while McBurney was absent, -gone to each girl on the first floor and had warned them against signing union cards and had warned them of possible loss of employment if they did. It is a fair infer- ence that Kuykendall, when McBurney, as she testified, asked her to repeat what she had told the other girls about the Union, brought McBurney up to date as to the Company's position regarding union activity.32 McBurney then, on the same occasion, said to Kuykendall, "I am going to talk to Mr. Hertzel because I don't want to join the Union." On direct examination by Respondent, McBurney was asked if she then told Kuykendall "what Elena Her- nandez told her." She replied that she did and that she also went to Cardenas "and I told him ...." The impression left by this testimony was that McBurney had told Kuykendall and Cardenas that Elena had threatened her. However, on cross-examination, McBurney was asked, "what did you tell her [Kuykendall]." The answer was, "I told her that a girl downstairs had asked me to join the union. I told her that I wouldn't ... . The witness made no reference to any threat made to her in this connection. In fact, she was then asked if anything else was said between herself and Kuykendall about Elena on that occasion and she said, "that is all." The witness then stated that she named Elena as the girl who had "asked me if I wanted to join the Union and I told her that I didn't want to join the Union." Nothing else. The evolution of the alleged threat by Elena then appears in McBurney's testimony that Cardenas "asked" her if Elena "had threat- ened her." McBurney "told him at that time I [McBurney] didn't take it seriously" but then she says she did take it seriously because Elena allegedly continued to threaten her.33 Regarding Hertzel Finesilver, McBurney states that, after speaking with Kuyken- dall, as aforedescnbed, she went to Finesilver and told him she wanted to talk to him. He said he also wanted to talk to her and spoke with her in his office. As McBurney stated in an affidavit that she acknowledged on the witness stand, Finesilver asked her if she had been threatened. She testified that she told him about Elena soliciting her and threatening her. She also told him that Mary Ramos, infra, had solicited her about the Union and she informed Finesilver about the reported attitudes of the other girls toward the Union.34 She advised Finesilver that she wanted to leave if a union came in. In the latter connection, McBurney testified that one of the reasons why she had told Elena that she did not want to sign for the Union was that McBurney had once worked for a named company and ". . . there was about thirty girls, and we all got fired" because some- one had wanted "to get a union in there ...." McBurney also testified that she and Elena got along together and were friends but claims that on the union subject Elena threatened her that she would be beaten up if she did not sign a union card.35 32 Indeed, in an affidavit given to a Board representative, McBurney-had stated that on this occasion Kuykendall had asked her if she knew who was behind the Union and Mc- Burney mentioned Elena Hernandez. 33 Later, McBurney said that she had approached Cardenas. Then, she reverted again to admitting that Cardenas had first asked her if Elena had threatened her. 3' Mary Ramos was discharged by Respondent on March 12. 35 McBurney admits that at no time did Elena proffer or produce a union card to her for signing. This seems hardly consistent with the alleged picture of Elena repeatedly threatening her if she did not sign a card. Moreover, since Elena herself was not persuaded by her husband and the union organizer to sign a card until March 4 and was discharged on March 12 and since McBurney did not inform on Elena until 3 weeks after the alleged threats, it is not readily understandable why Elena would have threatened MeBurney to sign a card at a time when Elena herself had not been persuaded to sign a card. In view of the friendship of the girls and the understandable reason why McBurney had told Elena why she would not sign, the alleged persistence of the threats is not convincing. FINESILVER MANUFACTURING COMPANY 939 Aurora Medina, Respondent's other witness offered to support its position regard- ing Elena Hernandez, testified on'direct examination that Elena spoke to her many times about the Union, asking her to join, and she had refused; Elena then allegedly started "cussing" her. • Medina was next asked by Respondent's' counsel, "Did you report your conversations with Elena Hernandez to anyone?" Answer: "To Dan Cardenas." Just exactly what she reported to Cardenas is not stated. The extent of Cardenas' testimony on this aspect, the report from Medina, as aforementioned, is that Medina "notified me that other girls had said, had said that Elena had threat- ened other girls .. ." 36 Medina testified that she and Elena, in the factory, "used to wrap together" at the same table, and Elena, in her work, also placed tickets on shirts (or whatever the particular product was) "and she [Elena] use to help me a little while, every now and then" and they got to know each other "quite well" and got along "real well." Medina stated that although Elena spoke to her about the Union, "when she [Elena] was talking . . . about the Union there was no anger on [Medina's] part or her [Elena's] part .... " 37 Medina testified that they each expressed their views on the Union to each other and that these discussions about the Union did not disturb their friendship. The witness then stated unequivocally and without qualification that the only thing that she reported to Cardenas was that she had received threatening telephone calls in the evenings at her home and she told Car- denas that she did not know who the callers were 38 Medina stated categorically that she had never reported "to any company official that Elena Hernandez had been threatening her." Later, the witness testified that she had told Cardenas that Elena was trying to get her to sign a union card. She also repeated her testimony about telling Cardenas'about the unidentified telephone calls. Viewing Medina's testimony as a whole, it is my opinion that the substance of the report, that Car- denas had received from Medina and the report that Hertzel Finesilver had from Cardenas concerning Elena Hernandez, was that Elena had on several occasions had ,asked her coworker to join the Union. At the hearing, while listening to Elena Hernandez' testimony that she had been told on March 12 that she was discharged for threatening other girls about union cards, I asked the witness her height and weight. She said she thought she was about 5 feet 2 or 3 inches and weighed about 110 pounds. I asked the question because the witness appeared particularly diminutive and it was my impression that she looked to be about 5 feet at the most. Her voice was so slight, it was at times barely audible and, after listening to 26 pages of her testimony, on direct and cross- examination, I felt constrained to ask her, "Can you speak louder than you are speaking today?" She answered, "Well, not much, just you know, regular." Although it is of course possible to be deceived by a witness regarding such matters, I must rely on what I regard as my experienced appraisal of the witness and I believe that Elena Hernandez was a relatively unsophisticated young woman and not a con- summate actress. Her size, her demeanor, and her voice were quite apparently gen- uine, and she certainly impressed me as more of a rabbit than a tiger. Based upon my observation of the witness and the aforedescribed evidence, as well as the other evi- dence set forth in this Decision, I credit Elena Hernandez that she did not threaten .other girls employed by Respondent. McBurney had said nothing about Hernandez to any supervisor until 3 weeks after the alleged threats and this on the day when Kuykendall probably had repeated Respondent's antiunion position to McBurney and probably had interrogated her regarding union activity. In view of McBurney's own prior experience in losing a job because of 'suspected union activity in another plant, Respondent's antiunionism quite clearly evoked immediate apprehen- sion on McBurney's part and she, in an apparent effort to protect herself,_ informed on Hernandez and Mary Ramos. I believe that the likely extent of this inform- ing was a statement that she had been asked by these girls to join the Union and that the theme of "threats" was developed through questioning and suggestion by Respondent's supervisors who were acting pursuant to a policy of defeating the Union by all available means, as this record demonstrates. I find that Elena Her- nandez was discharged for union actvity, of which Respondent had been informed, and that the discharge was in violation of Section 8(a)(1) and (3) of the Act. Abelardo Hernandez, the husband of Elena, had been with the Company since 1962. He had joined the Union in February 1965; he attended union meetings; ss This appears to be at least hearsay upon unidentified hearsay. 37 The witness repeated this testimony twice. 38 Elena Hernandez testified that she had never called any employee on the telephone about the Union and that she did not have a telephone in her home. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solicited other employees to join the Union; and had passed out union cards. Like- Gilbert Palacios, Hernandez was a presser and, after the discharge of Palacios, Hernandez assumed the task of informing other employees of the times and places of union meetings. As I have seen upon uncontroverted testimony, in the period after Palacios' dis- charge, Mervin Finesilver twice interrogated Hernandez as to whether he was asso- ciated with Palacios in union activities. On two occasions Foreman Cardenas had' warned Hernandez of the consequences of union activities and alluded to the fact that Hertzel Finesilver was positive that Hernandez was active in the Union. Superintendent Taylor spoke to Hernandez twice along the same lines. On March 12, when Elena Hernandez had been called to Hertzel Finesilver's office, her husband, who worked on the first floor, near the offices, observed her going into the office. However, he did not see his wife emerge from the office 39 and after waiting about an hour, Hernandez went to the office and inquired as to the whereabouts of his wife. Informed that his wife had left the plant, Hernandez asked and was allowed to speak to Hertzel Finesilver. Hernandez asked Finesilver about his wife. According to Hernandez, Finesilver told him that he had discharged Elena because she had been threatening four of the girls. Hernandez said, "So that is your reason" and Finesilver said, "Don't you like it?" Hernandez said, "No." Folger, assistant to the Finesilvers, then came in, and Finesilver directed him to^ arrange for Hernandez to be paid his wages, and told Hernandez to get out of the plant. Thereafter, Hernandez was paid and left the plant. According to Hertzel Finesilver and Folger, when Finesilver told Hernandez that his wife had been discharged for threatening other girls after being warned against such tactics, Hernandez said, "Well, it's not true and I am quitting." Finesilver said, "O.k.," and directed Folger to have Hernandez paid and "let him go." In addition to considering the witnesses and their testimony and the other cir- cumstances in the case, it is my opinion that Elena and Abelardo Hernandez were working because they probably needed the money. From what has been discernible in the record of the wage rates, the wage rates do not appear to have been high 40' If the Hernandez' found it necessary for both to work at the plant for a total of approximately 4 years, it appears unlikely that after Elena Hernandez was dis- charged, her husband would have compounded their financial problem by volun- tarily quitting his own job that he had held since 1962. Hernandez seemed to be quite capable of standing up under emotional stress and pressure, having withstood very direct pressure from Mervin Finesilver, Cardenas, and Taylor. He was active in the Union and was carrying on some of Palacios' functions in the union move- ment after the latter's discharge. It appears unlikely that he would have voluntar- ily quit under the particular circumstances described on March 12. I credit Her- nandez that he was discharged as set forth in his testimony. Respondent availed itself of the situation presented in the wake of Elena Hernandez's discharge to rid itself of her husband, whose own active union role was suspected and known by Respondent and who association with his wife in her union activities could readily be assumed 41 I find that Abelardo Hernandez was discharged in violation of Section 8(a)(1) and (3) of the Act. Mary Ramos had worked for the Company, off and on, since 1952. This "off and on" habit of work appears to have been characteristic of many of the employ- ees at Respondent's plant. Its toleration by Respondent was perhaps one of the things that induced employees, especially married women, to work for a time, quit and then return. Ramos testified that she had quit work when she got married; when she was ill; at different times; and whenever she became pregnant (she had three children).42 Respondent customarily had from 12 to 30 employees absent 30 After her discharge, Elena Hernandez had left the plant, without apparently, return- ing to her work station. 40 This is not said critically. Whether the employees deserved higher or lower or any other wage rate is not for me to say and I am in no position to express an opinion thereon. u Hernandez' conduct in inquiring about his wife was not improper, nor was his answer, when asked, as to whether he liked the fact that his wife had been discharged for the reason advanced by the employer. *2 Other employees who testified to their "off and on" periods of work week: Felipa Palacios, off and on for 12 years ; Isabel Valle, off and on since 1952; Mary Kinisky, off and on since 1949. Mary Ramos' record reflects specifically her off and on employment, with the "off" periods being at her own volition and tolerated by Respondent who repeat- edly rehired her. Thus: started in 1954; then worked 3/18/57 to 9/30/57; worked 1/60 ,to 9/2/60; worked-10/13/60 to 12/16/60; worked 6/5/63 to 8/63; worked 10/14/63 to 10/8/64 ; worked 2/8/65 to 3/10/65 and then discharged. FINESILVER MANUFACTURING COMPANY 941 ,on any given day and was accustomed to moving other girls around to fill in for ,those who were absent. Employees, of course, were paid only when they worked. Ramos was a utility girl, i.e. she was an all around performer who could fill in on various operations on either the first or second floor, where she worked for different supervisors as assigned. There were apparently only five or six utility girls such as Ramos. Although she had been absent for 4 months, Superintendent Tay- lor had rehired her in February 1965 when he chanced to see her in the employ- ment office. The personnel manager then had given her her old timecard number. indicating perhaps that the Company had accepted her previous quits as not per- manent separations but as temporary absences in a long history of off-and-on employment. After Ramos had returned to work in February 1965, she had signed a union card; attended union meetings ; and had distributed union cards. As previously described, she was coercively interrogated or threatened by Personnel Manager Kuykendall, Superintendent Taylor, and Vice President Finesilver. One of Respondent's employee witnesses, McBurney, above, admitted that she had reported to the vice president that Ramos had solicited her to sign a union card. Ramos completed her work on March 10 and returned to her home that evening. She found two of her children ill and promptly took them to the doctor. The prognosis was measles and after administering some medication the doctor directed Ramos to return to his office the next morning. The following morning, Thursday, March 11, Ramos telephoned Personnel Manager Clayton about 7:55 a.m.43 and reported the foregoing facts about her children, including the fact that she had an appointment with the doctor that day. Clayton said, all right, and that she would see Ramos on Friday, March 12. On March 12, Ramos came to Clayton's office about 7:40 a.m. to pick up her timecard. Clayton told her that she would have to see Superintendent Taylor 44 After a short wait outside the personnel office, Ramos was approached by Taylor who told her that he had no work for her. She asked if Clayton had not informed him that Ramos had called in the day before. He said yes. Ramos handed him a receipt from the doctor. Taylor looked at it and said that the vice president had been informed that she was pushing union cards and Taylor had to follow orders. Ramos said that if she was discharged she wanted her checks. Taylor told her to return at 4:30 for the checks, which she did45 Clayton testified that Ramos did not call on March 11 but that Kuykendall tele- phoned Ramos on that date to find out why she did not come to work "because she [Ramos] had been working very regular." Kuykendall was told of illness in Ramos' family and Ramos said that she would be in the following morning, March 12. Clayton states that she did not see Ramos at all on March 12. Taylor testified that he had had no idea why Ramos was absent; that he had asked Clayton on March 11 if they had heard from Ramos and Clayton said, no. The witness was asked: Q. Did you also ask Blanche Kuykendall to see if maybe she had heard from Mary [Ramos]? A. No, You know, I had a couple of other things I had to do that day besides trace down Mary Ramos. At another point, however, Taylor testified that he had asked Blanche Kuykendall if Clayton had heard from Ramos and Kuykendall had replied, "Well, I tried to call her [Ramos] and there was no answer at her home." In an affidavit, dated April 22, 1965, Taylor stated that, when he noticed Ramos' name missing on the personnel list on March 11 and 12, he "did not ask either Mrs. Clayton or Mrs. Kuykendall if Mary Ramos had called in." According to Taylor, on March 12, around the middle of the morning, he saw Ramos waiting outside the personnel office. He said to her, "Mary, we can't keep you any more. We can't keep going through this." All Ramos said, according to 43 The hours at the plant were 8 a.m. to 4:30 p in. " Ramos was familiar with the company rules that when an employee was absent her timecard was taken up by the personnel department and could only be secured , upon re- turning, by applying to that department. 45 The doctor 's receipt was not produced at the hearing. Respondent , at the hearing had ascertained from Ramos the name and address of the doctor but neither the General Counsel nor Respondent produced the doctor or any certificate that he had or had not treated Ramos' children on the dates to which she testified. Such evidence would have been helpful in corroborating or discrediting the witness on one aspect of her testimony. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor, was, "O.k.," and that was the end of the conversation. At the hearing, Taylor testified "that he had previously warned Ramos about the necessity for reg- ular attendance.' She denied this Taylor gave her failure to report on March 11' and 12, as well as allegedly poor production, as the reasons for.the discharge. There is no evidence that Taylor or anyone else had warned Ramos about her work output and no records were introduced to show failure to' meet work quotas or other indicia of poor performance. Ramos was evidently a versatile and capable worker., As Clayton admitted, Ramos had been working very regularly since her last rehire on February 8. When Ramos was absent, Taylor had_ simply assigned another girl to her place. If Ramos had, been present, this other girl would have been working but on a different table. This was the nature of the work and the way the employees were utilized. J credit Ramos' testimony regarding the illness of her children, her calling in, and her reporting in before 8 a.ni . on March 12 46 I believe that but for Respond- ent's knowledge of her union activity and Respondent's hostility 'thereto, Ramos, would not have been discharged on March 12 but that Respondent would have, welcomed her back to its employ as it had on numerous other occasions. I find that Mary Ramos was discharged on March 12 in violation of Section 8 (a) (1) and (3),of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discriminating in regard to the hire and tenure of employment of Gilbert Palacios, Vito Fabian, Elena Hernandez, Abelardo Hernandez, and Mary Ramos, by discharging Palacios and Fabian on February 11, 1965, and ,the two Hernan- dez' and Ramos on March 12, 1965, and refusing to reinstate them, Respondent has engaged in, and is engaging in, unfair labor practices within the" meaning of Section 8(a)(1) and (3) of the Act. 4. Respondent did not engage in an unfair labor practice in discharging Felipa Palacios on February 17, 1965. 5. By acts of coercive interrogation and threats Respondent has engaged in and, is engaging in conduct that constitutes interference, 'restraint, and coercion in violation of Section 8 (a) (1) of the Act. THE REMEDY Having found that Respondent has engaged in the foregoing unfair labor prac- tices, 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 mentioned, 'reinstatement to their former or to substantially equivalent positions, and make them whole for loss of earnings in accordance with the remedial policies outlined in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,,138 NLRB 716. 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) Interrograting and threatening employees concerning membership in or activities on behalf of Amalgamated Clothing Workers of America, AFL-CIO. (b) 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. (c) In any other related manner interfering with , restraining, or coercing, employees in,the exercise of the rights guaranteed in Section 7 of the Act. 41 Ramos knew the rules. If she was going to take, the trouble to return to work on March 12, as she admittedly did, there would be no reason not to report, as required, before 8 a.m i FINESILVER MANTJFACTURING COMPANY 943 2. Take the, following affirmative action to effectuate the purposes and policies of the Act: (a) Offer 'to' Gilbert -Palacios, Vito Fabian, Elena Hernandez, Abelardo' Her- nandez, and Mary Ramos, immediate reinstatement to their former,or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and make them whole for any loss of pay suffered by reason of Respond- ent's discrimination against. them, in the manner and to the extent set forth in the section of this Decision entitled, "The Remedy " (b) Notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the provisions of the Selective Service Act and Universal Military Training 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 or useful to deter- mine or compute the amount of backpay due, as provided herein. (d) Post at its plant in San Antonio, Texas, copies of the attached notice, marked "Appendix." 47 Copies of said notice, to be furnished by Region 23, shall, after being duly signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days there- after, on all three floors of its plant where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith 48 41In 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." "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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate or threaten our employees regarding their signing union cards in the Amalgamated Association of Clothing Workers, AFL-CIO or regarding their membership or activities in that or in any other union. WE WILL offer reinstatement to their jobs and backpay to Gilbert Palacios, Vito Fabian, Elena Hernandez, Abelardo Hernandez, and Mary Ramos. 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 Amalgamated Association of Clothing Workers, AFL-CIO, or any other union. FINESILVER MANUFACTURING COMPANY, 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722.