Blue Bell, Inc.

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hicks-Ponder Co., A Division of Blue Bell, Inc. and El Paso District Joint Board , Amalgamated Clothing Workers of America, AFL-CIO. Cases 28-CA-1922, 28-CA-1942, and 28-RC-1901 November 24, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 18, 1970, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. The Trial Examiner also recommended that certain objections to conduct affecting the results of the election held in Case 28-RC-1901 at the Employer's plant on July 11, 1969, be sustained and that the election be set aside and a new election be directed. Respondent filed exceptions to the Trial Examiner's Decision together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegat- ed its powers in connection with this case to a three- member panel. 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 brief, and the entire record in the case,' and hereby adopts the findings,2 conclusions,3 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Hicks-Ponder Co., a division of Blue Bell, Inc., El Paso, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election conducted on July 11, 1969, among employees in the designated unit of Hicks-Ponder Co., a division of Blue Bell, Inc., its El Paso, Texas, plant be, and it hereby is, set aside, and that said case be, and it hereby is, remanded to the Regional Director for Region 28 to conduct a new election when he deems that circumstances permit the free choice of bargaining representative. [Direction of Second Election4 omitted from publication.] i Respondent's motion for oral argument is denied 2 The Respondent excepts to certain of the Trial Examiner's credibility resolutions It is the Board's established policy, however, not to overrule a Trial Examiner's credibility resolutions unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 1 Chairman Miller concurs, but finds that Section 8(a)(1) was violated, and the election interfered with, only by the discharges and by Melendez' statements that strikers would be unable to secure other jobs (which in his view is at least susceptible of an inference that Respondent was threatening to blackball strikers with other employers in the area) and by her implied promise to the employees of a paid holiday in lieu of the Employer's annual picnic + In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236. NLRB v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 28 within 7 days of the date of this Decision. Order, and Direction of Second Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER , Trial Examiner : Upon an original charge in Case 28-CA-1922 filed July 28, 1969 ,1 amended August 28, and an original charge in Case 28-CA-1942 filed September 2, by El Paso District Joint Board, Amalgamated Clothing Workers of America , AFL-CIO (hereinafter called the Union ), against Hicks-Ponder Co., a division of Blue Bell, Inc . (hereinafter called Respondent), a consolidated complaint was issued against Respondent on September 29 alleging violations of Section 8(a)(1) and (3) of the Act. On October 6 in Case 28-RC-1901 the Regional Director for Region 28 directed a hearing before a Trial Examiner on the Union's objections to conduct affecting the results of the election, and directed that such hearing be consolidated with the hearing on the consolidated complaint and that thereafter Case 28-RC-1901 be transferred to and continued before the Board . On November 14 the Regional Director issued an amended order consolidating cases and an amended complaint alleging additional violations of Section 8(a)(1) and (3) of the Act, thereafter again amended at the hearing. The objections consolidated for hearing with the complaint are limited to the period from March 24, the i All dates hereinafter refer to 1969 unless otherwise indicated 186 NLRB No. 92 HICKS-PONDER CO. date of the filing of the petition, to July 11, the date of the election.2 Respondent's answer as amended denied the alleged unfair labor practices. Pursuant to due notice, this consolidated proceeding was heard by me at El Paso, Texas, on various dates from December 2 to 18. The General Counsel and Respondent filed briefs. The General Counsel's unopposed motion to correct the official transcript of proceedings is hereby granted as set forth in attached Appendix A [omitted from publication 1. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a Texas corporation engaged in the manufacture and sale of men's wearing apparel with its principal office and place of business at El Paso, Texas. Although Respondent operates other manufacturing plants, its plant at El Paso is the only plant involved in this proceeding. During the past year Respondent sold merchandise valued in excess of $500,000, and sold and shipped from its El Paso plant more than $50,000 worth of merchandise directly to points outside the State of Texas. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A Introduction and Issues This consolidated proceeding involves 11 allegations of interference, restraint, and coercion, alleged discrimination by the discharge of two employees, the transfer of two employees to less desirable jobs, and the subsequent discharge of one of the transferred employees and the objections to conduct affecting the election, substantially encompassed within the allegations of the complaint except that the objections are limited to the period from March 24 to July 11. The issues as framed by the pleadings and the objections are: (1) discriminatory discharge of an employee on May 22, and of another on May 23; (2) discriminatory transfer of two employees on or about June 5; (3) discriminatory discharge of one of said transferred employees on July 23; (4) interference, restraint, and coercion by (a) giving employees on several occasions the impression that their union activities were being kept under surveillance; (b) actual surveillance on two occasions, of the employees' union activities; (c) distributing literature and making oral statements to employees advising them that election of the Union would result in a strike, that they would be prejudiced or hurt thereby, and that they would be 713 terminated for engaging in a strike; (d) offering, promising, and granting employees increased paid holidays and other benefits to induce them not to support the Union; (e) telling employees that if the Union won the election Respondent would not negotiate, agree to any collective-bargaining agreement, or agree to any of the Union's proposals, that therefore a strike would result, and that they would be prejudiced or hurt thereby, including terminated for engaging in a strike; and (5) informing employees that Respondent knew the names of all employees who had signed for the Union, an objection not encompassed within the allegations of the complaint. B. Chronology of Events The Union has been trying to organize Respondent's employees for approximately 15 years.3 The current organizational campaign commenced about 5 or 6 years ago. At that time the Union sent Respondent a telegram listing more than 50 employees as members of the Union's organizing committee , so that thereafter Respondent knew the identity of most of the employee advocates of the Union. The complaint named some 40 individuals who Respondent admitted were supervisors within the meaning of the Act . In addition it identified two individuals, subsequently corrected on the record , as officials of Blue Bell, Respondent's parent organization . They were E. A. Morris, chairman of the board of directors, and J. L. Williams, personnel director. Respondent's principal officials involved in this proceeding were J. Hart Ponder, president ; Richard Hamilton, plant superintendent; Till- man McQuien , plant manager ; Robert Daniel, plant engineer ; and Mary Melendez, personnel counselor. Most of Respondent's employees spoke Spanish . Melendez spoke Spanish and English fluently. In the spring of 1969 the Union apparently increased the tempo of its long-running organizational campaign. On or about March 7 Carolina Baca, a known union advocate employee, was taken by her foreman to Melendez' office. Melendez informed Baca that it had been reported to Respondent that she had been soliciting for the Union during working hours when she and the employees solicited were supposed to be working. In reply Baca denied that she had been soliciting for the Union during working time, admitting that she knew such was improper and a violation of the rules. Melendez warned her that she could not do so and that if it happened in the future she would be discharged. Respondent gave Baca a written notice to the same effect. Nothing further came of this incident. On March 24 the Union filed a petition for an election with the Board. The Board's representation hearing was held May 9. On May 13 Respondent, in a speech to all of the employees by Ponder, commenced a campaign designed to persuade the employees not to vote for the Union in the forthcoming election . Respondent employed approximately 750 production and maintenance employ- ees, and Ponder addressed them in groups of from 50 to 100 until the speech had been delivered to all. The same procedure was followed in subsequent speeches. After 2 Ideal Electric & Manufacturing Co, 134 NLRB 1275 (1961) 3 Hicks Ponder Company, 168 NLRB No 103 (1967) 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advising the employees that the Board had held a representation hearing the prior week and that an election would be held in a month or so, Ponder told the employees that Respondent did not want the Union in the plant and was going to do everything legally possible to keep it out. He advised the employees that Respondent would continue to provide everything which went to make up a good job so that they would never want or feel it necessary to belong to a union. He stated that Respondent was going to do everything within its power to make improvements, assure the employees of steady work, and do what it could to improve earnings. He told the employees that where there were unions there were often strikes and trouble, and that the Union would work to their harm, not their benefit, characterizing such as "this horror." He accused the Union of making false promises and claims and advised the employees that such benefits would not automatically occur if the Union were elected but would only take place through cooperativeness and teamwork which was better than the fighting and discord brought about by unions. He concluded by advising the employees that Respondent would keep them informed of developments. On May 21 employee Reynalda Castellanos returned to her job from an extended maternity leave which com- menced in January. On or about April 21, Respondent had extended Castellanos' maternity leave an additional 30 days as a result of a certificate signed by her physician, Dr. Palafox, an orthopedic surgeon who had been treating Castellanos for a back injury she sustained in March 1968 while working for Respondent. Castellanos had recovered and returned to work in October 1968 with Dr. Palafox's approval and had continued to work without pain or difficulty until commencing her maternity leave in January. At Respondent's request Castellanos furnished it with a certificate from Dr. Palafox stating that he had examined her and advised her to return to work May 21. Respondent knew that Castellanos was a union advocate, her name having been included in the list of members of the organizing committee the Union sent to Respondent. Respondent assigned Castellanos to the same job in Respondent's training center she had held prior to her maternity leave, operating two tandem sewing machines which made button holes and sewed on buttons, respective- ly. However, she had a different instructor-supervisor, Frances Meza, under whom Castellanos had never previously worked. Upon her return May 21, Castellanos discovered that the sewing machines she operated were too high, having been adjusted for a taller operator. The operator was required to stand and Castellanos was of extremely short stature. That afternoon she advised Meza that the machines were too high and that it was difficult and uncomfortable to reach up to insert and smooth the sewing. Meza informed Don Adelsperger, the head supervisor of the training center, who in turn requested Jack Kostielney, one of Respondent's mechanics, to lower the machines. This was done the following morning. The machines were lowered as much as possible, which also required the adjustment of certain drive belts. Castellanos did not speak English, so her messages were conveyed by Meza to Adelsperger and Kostielney. During the afternoon of May 21 before the machines were adjusted, and during the following day, after they were adjusted, on several occasions Castellanos complained to Meza that the machines were sewing improperly, skipping, making knots, breaking thread, breaking needles, and tearing material. As a result, Meza summoned Kostielney to check the machines about five or six times. He testified that on each occasion he was unable to find anything wrong with the machines although he stood there observing Castellanos operate them. As a result of Castellanos' various complaints about the condition of her machines, Meza complained to Adelsperger about Castellanos' complaining. Meza told Adelsperger that Castellanos' complaints were upsetting Meza so much that she would need tranquilizers for her nerves. Consuelo Tarin was employed by Respondent as a sewing machine operator on a line adjacent to the training center where Castellanos worked. Tarin was a member of the Union's organizing committee, but Respondent did not know that she was a union advocate. She was employed after the Union sent the list of names to Respondent. On May 22 Castellanos and Tarin went to lunch together at 11:15 a.m. They proceeded down the plant stairway to the main entrance on the first floor, because Respondent's cafeteria was across the street in another building. There was a small hall or foyer inside the entrance. Tarin was discussing with Castellanos the desirability of visiting another woman employee at her home that evening to request her to sign a union card. Tarin knew the employee by sight but not name, whereas Castellanos, who had been employed for a number of years, knew the names of many employees. They were standing in the foyer immediately inside the entrance way to the plant or on the sidewalk immediately in front of the plant. Castellanos told Tarin that the girl they were discussing had already signed a union card, but Tarin suggested that they seek her signature on a new form of card the Union had adopted. Castellanos agreed to go to the girl's house that evening with Tarin. The girl whom Tarin was trying to describe to Castellanos passed by and Castellanos pointed at her, asking Tarin if she was the girl. Tarin replied that she was. Castellanos knew the girl's name and told it to Tarin. While Tarin and Castellanos were having this discussion, unknown to them Carmen Molinar, the supervisor of the sewing line in which Tarin worked, was standing from 3 to 5 feet behind them, in a position from which she could readily overhear their conversation and observe their actions. Both Tarin and Castellanos happened to look back and saw Molinar standing there within a few feet staring at them and observing their actions. While a number of other employees were passing by on their way to lunch, there was no one between Molinar and Tarin and Castellanos. Tarin commented to Castellanos that the "jig was up." After Tarin and Castellanos discovered Molinar's presence, she stared at them for a few moments and then proceeded into the plant. Castellanos described this incident as occurring in the foyer inside the plant adjacent to the entrance, whereas Tarin recalled it as happening just outside the entrance of the plant on the sidewalk. In other respects their testimony was substantially the same. Molinar denied having overheard any such conversation, observed such actions, or having ever observed them together. I credit HICKS-PONDER CO. 715 Tarin and Castellanos, and find that under the circum- stances Molinar was able to and did overhear their conversation and observe Castellanos point out and identify the employee to Tarn. Both described Molinar as "glaring" at them, but this, of course, was a subjective conclusion which I do not find. Molinar knew that Castellanos was active in the Union, but was previously unaware of Tann's union activities. After lunch Tann and Castellanos returned to their jobs. This was the same day that Castellanos complained about the troubles with her sewing machines to Meza on several occasions. When the sewing machine operators sewed garments improperly, such mistakes were ascertained by inspectors. Respondent employed both line inspectors and quality control inspectors for this purpose. The inspectors were employees, not supervisors. Respondent called these mistakes "repairs" because they were returned to the operator to be corrected or repaired. Tann's forelady had been Jessie Herrera, but the preceding day Molinar, the supervisor, had switched foreladies so that Lily Martinez had become Tarin's forelady. Respondent employed supervisors who were above the foreladies. Martinez had brought Tarin approximately 18 pairs of slacks for repairs approximately 45 minutes before the lunchbreak. Tarin had completed approximately 12 of the repairs before going to lunch. The slacks were dark green and she used a light blue thread, the wrong color. Although the repairs were on the inside of the slacks and would not be visible when worn, this admittedly was improper procedure by Tarin. Shortly after lunch, Martinez discovered Tarin's mistake and called it to Molinar's attention. Molinar and Martinez took the repaired slacks to Tarin and pointed out what she had done. Tarin admitted her mistake but said that she thought that it did not make much difference inasmuch as the repairs would not be visible when the slacks were worn. Tarin immediately redid the repairs with the correct color thread. Nevertheless Molinar informed Hamilton and Melendez that she was going to fire Tarin because of her mistake and her prior poor quality production, i.e., excessive repairs, concerning which she had been warned twice. Later that afternoon Molinar and Martinez took Tann to the personnel office, where Melendez informed Tarn that she was being discharged for her improper repair of the slacks and her poor quality production. According to the testimony of Molnar and Martinez, neither informed Melendez or Hamilton that Tarin had promptly corrected the repairs after her use of the wrong color thread had been called to her attention. In addition to the improper repairs, Molinar and Martinez claimed that they had subsequently found Tarin's other undone repairs in the wrong place, i.e., where completed repairs were placed, and two bundle tickets improperly attached to Tarin's production sheet, indicating completed production which she had not commenced. Neither of these alleged improprieties were discussed during Tarin's discharge interview. Molinar and Martinez admitted that they did not know if Tarin had placed the undone repairs in the wrong place or had attached the bundle tickets to her production sheet. Neither of them asked Tarin for an explanation of these alleged facts. Although Molinar claimed that both matters were serious, she did not explain why she did not call them to Tarin's attention or bring them up during her discharge interview. Molinar had warned Tarin on April 9 and May 20 that her repairs were excessive. Tarin had started her employ- ment in the training center , had been transferred to the production line January 22, and had not reached Respon- dent's production quota. During the interview Tarin admitted the use of the wrong color thread and her two prior warnings from Molinar concerning her excessive amount of repairs . Molinar discussed Tarin's improper repair with Hamilton , but he was not present when Tarin was discharged . Hamilton claimed that he made the decision to discharge Tarin . Molinar claimed that she discharged Tarn. The record reveals that the decision was made before hearing from Tarin at the discharge interview. Melendez had prepared Tarin's discharge notice and two checks before she arrived in the office . Tarin refused to sign the termination notice. The following day at lunchtime Respondent summoned Castellanos to the personnel office , where Meza , Adelsper- ger, Hamilton, and Melendez, among others, were present, and discharged her for the reason stated on her termination notice : physically unable to perform work . During the interview Melendez informed Castellanos that Respondent had reached the conclusion that she was physically unable to perform her work because she had been "constantly" complaining for the past 2 days about the condition of her tandem sewing machines and about her back hurting. Castellanos denied that her back hurt or that she had complained about her back hurting at any time. She conceded complaining to Meza about the various deficien- cies in her sewing machines, as a result of which the mechanic had been called to check the machines five or six times. During the interview Meza stated she had com- plained to Adelsperger several times about being so upset and nervous that she would need tranquilizers because of Castellanos' complaints. Meza had not previously con- veyed this complaint to Melendez or Hamilton. In his deposition and affidavit , Adelsperger made no statement that he had conveyed Meza's or Castellanos' complaints to Melendez. Melendez testified that Hamilton and Adelsper- ger had conveyed Meza's complaints to Melendez, but neither of them corroborated her testimony in that respect. Admittedly Castellanos, after her return to work in October 1968 from her back injury, had worked from then until her maternity leave in January without any com- plaints about her back and without physical difficulty. Melendez admitted that on May 21 Castellanos had informed her that she was well and had no trouble with her back, and that she had returned with a doctor's certificate stating that she was physically able to work . Admittedly the first day that Castellanos worked her machines were too high. They were lowered the following day so that she could perform the work . Respondent's witnesses admitted that the operator had to sew standing up, and if the machines were too high, as they were for Castellanos upon her return, they would cause discomfort and make the task difficult to perform because the operators arms had to be above the level of the machine to insert and smooth the garments as they were sewn. Castellanos told Melendez that Castellanos had complained about the deficiencies in her sewing 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machines because she had been instructed to do so by her former supervisor on the same job prior to her maternity leave, in order not to be charged with repairs caused by defects in the machines. Meza thereupon stated that Castellanos had more repairs than the other two operators, who were new trainees, combined. As a result of those prior instructions Castellanos kept notes during the 2-day period of the various troubles she encountered in the operation of the sewing machines, which activity was one of Meza's complaints about Castellanos. Castellanos knew that her friend Tarin had been discharged the previous day allegedly for excessive repairs. Meza, as instructor supervi- sor, decided whether repairs were the fault of the operator or the equipment. Melendez informed Castellanos that Respondent had decided that she was physically unable to perform the work and accordingly was discharging her. Castellanos asked Melendez how she could conclude in 2 days that Castellanos was physically unable to perform her work, in the face of a doctor's certificate she had brought in two days before stating that she was physically able to return to work. Melendez replied that because of her constant complaining about her working conditions, which a normal operator would not do, Respondent had concluded that she was physically unable to perform the work. Respondent did not contact Dr. Palafox. Castellanos then pointed out that it was Meza who was upset, nervous, and complaining about her physical condition, not Castellanos, and that she had not complained about her physical condition. Because of Melendez' repeated references to Castellanos' physical condition, Castellanos pointed out that her back injury had originally occurred while working for Respondent. Melen- dez replied that she should take this up with Respondent's insurance company carrier, against whom Castellanos had already filed a claim with respect to her back injury in 1968. In spite of Castellanos' repeated protests that she was physically able to do the work, Respondent discharged her that day. As in the case of Tarin, Melendez already had Castellanos' termination notice and checks prepared when she arrived in the personnel office. Castellanos refused to sign the termination notice. Castellanos took her termina- tion notice to her attorney, also counsel for the Union, who sent her to Dr. Palafox. Castellanos showed Dr. Palafox her termination notice, which stated that she was physically unable to perform work. The record contains considerable evidence with respect to Castellanos' physical condition and back injury, including the testimony and reports of Dr. Palafox, which will be considered hereinafter in connection with her discharge. Juanita Ortiz, employed as a pickup girl, was the president of the Union's organizing committee. Respondent knew that Ortiz was a member of the Union's organizing committee. The job of the pickup girls was to pick up from a repair bench the operator repairs which the various inspectors had found and placed there, enter them on records, separate them according to the forelady in charge of the operator who had made the mistake necessitating repairs, deliver them to the forelady's bench for repair by the operator, and after they were repaired, pick them up again, sort them and send them to the pressing department. In the performance of this job the pickup girls were not required to communicate with the operators and inspectors, but only with their supervisor and the foreladies upon occasion . Carmen Ybarra, who was supervisor of the pickup girls, left Respondent in March . After her departure she was not replaced and her function was assigned to Consuelo Gallardo, who thereupon became Ortiz' supervi- sor. After Ybarra's departure Ortiz was subject to less immediate supervision because of Gallardo's additional duties as line supervisor. As a result Ortiz engaged in more talking during working hours with fellow employees. On two occasions after Ybarra's departure, the last being May 30, Gallardo warned Ortiz not to engage in excessive talking during working time . Respondent permitted occasional talking and brief conversations between employ- ees while working, but of course prohibited excessive talking which interfered with the work of either participant. Some 5 years earlier Respondent had changed its pickup procedure because of excessive talking between the pickup girls and the operators. Under the prior procedure the pickup girls delivered the repairs directly to the operator concerned, which led to discussions and excessive talking between them . Respondent changed the procedure so that the pickup girls delivered the garments to be repaired to the bench of the forelady, who in turn delivered the repairs to the operators underneath her. This eliminated the prior contact between the pickup girls and the operators and the resultant excessive talking. On June 3, 4 days after her last warning to Ortiz about excessive talking, Gallardo observed Ortiz in a conversation with Lily Vargas, a line inspector, and Rey Hernandez, a foreman in the cutting department. Ortiz' work did not require her to have contact with either of these employees. After observing the three for several minutes Gallardo approached, told Ortiz if she had any problem to let Gallardo know, and if not to return to her work station. Ortiz in reply yelled that she was not talking but was waiting for the other two to finish talking so that she could discuss some work matter with Vargas. Gallardo replied that Ortiz had no business talking to inspectors since her job was pickup and again told her to return to her work station . Ortiz in reply said that she was going to the office to complain about Gallardo. This and the yelling angered Gallardo, who thereupon told Ortiz that she was going to take her to the office, which Gallardo proceded to do. Hamilton and Melendez were also present at this meeting, and after hearing Gallardo's and Ortiz' versions of the incident, Melendez warned Ortiz that she was not to engage in excessive talking and reminded her that she had previously been warned. During the interview Ortiz conceded that she had engaged in talking in the past, but contended that it was related to her work, that Gallardo was picking on her , and, moreover, that Ortiz, in talking to the inspectors, was performing part of Gallardo's duties at her instruction. Gallardo vehemently denied this and informed Ortiz that she should not do Gallardo's work and that she was fully able to do her own work. Gallardo also complained about the manner in which Ortiz had yelled at her. Hamilton also informed Ortiz that it was not her function to perform Gallardo's work or to engage in conversations with the inspectors, and that if she had any work problems she should take them up with her supervisor HICKS-PONDER CO. 717 and not engage in excessive talking with other employees. Ortiz again insisted that she talked only about work matters. She was instructed to return to her work station. During the interview Ortiz insisted that she had not been talking but was waiting for Vargas and Hernandez to finish their conversation so that she could talk to Vargas, and requested Melendez to verify this with Vargas and Hernandez. Be that as it may, the record establishes that it was not part of Ortiz' duties to talk with Vargas or Hernandez. Ortiz admitted frequently talking to inspectors about work matters, such as identifying the operators' numbers on tapes attached to the garment bundles, which was not part of her duties and which she had been instructed not to do. Later that afternoon Daniel, the plant engineer, informed Hamilton and Melendez that at 8 o'clock that morning while making a time study, he had observed Ortiz talking to Herminia Hurtado, a quality control inspector, for 10 consecutive minutes. Ortiz had pushed aside her work cart and stood at Hurtado's work station talking with her for 10 minutes. At approximately 9 and I I a.m. Daniel returned to the area and each time again saw Ortiz and Hurtado talking in the same position, but he did not time the duration. Because Melendez was otherwise engaged in making speeches to the employees that day, she did not take action until the following morning, at which time she received a full report of the incident from Daniel. Shortly thereafter she received a report from an employee who stated that she had observed Ortiz in the ladies' restroom discussing the Union with a group of employees at a time when she and they were supposed to be working. As a result of these two reports, Melendez had Gallardo bring Ortiz to the personnel office again. Hamilton and Daniel were also present. Melendez told Ortiz that the previous day she had claimed that Gallardo was merely picking on her and that she only talked about work matters, but that since then Melendez had received the above reports from Daniel and the employee who had observed Ortiz in the restroom. Ortiz denied having discussed the Union with any employees in the restroom, pointing out that she knew better than that and knew that she was not permitted to discuss the Union during worktime. Ortiz admitted that she had been talking to 1-lurtado the previous morning, first stating that it was during a break period. When Daniel pointed out that it was 8 a.in., long before the break period, Ortiz replied that she and Hurtado had been discussing business; i.e., certain operators' numbers which Hurtado allegedly did not understand. Ortiz did not deny Daniel's statement that the conversation had gone on for 10 minutes during which time neither of them had been working. Melendez again instructed Ortiz to return to her work station. Melendez then had Hurtado brought to the personnel office. Respondent was not aware of any union activity by Hurtado. Jesus Sosa, supervisor of the quality control inspectors, was also present. Melendez told Sosa what Daniel had observed. Sosa said that he had warned Hurtado on two previous occasions, the last being March 14, about excessive talking to other employees, particularly the pickup girls, and that she had admitted that she had been talking to other employees and had said that she would cease doing so. Sosa's primary duties were on the first floor and as a result he was unable to keep an eye on Hurtado, who worked on the second floor as did Ortiz. The quality control inspectors made random spot checks of the garments for defects and repairs and unlike the line inspectors were expected to perform their work with little actual supervision . Their duties did not necessitate conversations with the pickup girls. Hurtado had been employed by Respondent for approximately 17 years . Hurtado's testimony was a maze of contradictions and self-impeachment . After first testifying that during her conference with Melendez she had denied any talking with other employees , when confronted with her affidavit Hurtado admitted the contrary. When confronted with Daniel's statement during the conference Hurtado admitted that she had been talking to Ortiz at 8 a.m. the preceding morning for 10 minutes when both were supposed to be working, and had also been talking with her at 9 and I I a .m. After first testifying that they had been discussing work matters, Hurtado on cross-examination admitted that they had been discussing many subjects unrelated to work and that they frequently had engaged in such conversations after Ybarra left Respondent's employ because there was no supervisor constantly present to prevent them from doing so. Hurtado pointed out that Sosa normally worked on the first floor and hence was not present on the second floor. She admitted having been warned previously by Sosa about engaging in such excessive conversations . Melendez also told Hurtado that Daniel had observed her talking to another employee on the third floor after the work bell had rung. Hurtado admitted this but stated that the bell on the second floor where she worked did not ring until 2 minutes later. Melendez pointed out that nevertheless she was interfering with the work of the other girl. After Hurtado admitted at the conference that she and Ortiz had frequently engaged in such conversations because of lack of supervision and that, contrary to Ortiz, they had been talking for 10 minutes the preceding day on matters unrelated to work , Melendez informed Hurtado that because of her long years of service with Respondent they were not going to terminate her but instead transfer her to another job in the training center where she would be under direct supervision and learn to operate a sewing machine. Hurtado protested the transfer , claiming that she probably would be unable to learn to sew and hold down such a job, and asked for another chance as inspector, which Melendez and Hamilton refused . Before leaving, Hurtado stopped to see Ponder to ask him to rescind her transfer. Ponder told her that he would have to check with Melendez and Hamilton, and the following day informed Hurtado that he could not reverse their decision. However , Ponder instruct- ed Hamilton and Melendez to give Hurtado every opportunity to make it in the training center because of her long employment by Respondent . Melendez and Hamilton then informed Ortiz what they had ascertained from Hurtado, contrary to Ortiz, and that they were transferring Ortiz to the training center so that she could be kept under adequate supervision. On June 6 both Hurtado and Ortiz were transferred to the training center to learn to operate a sewing machine, which the record establishes was a less desirable job than either 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quality control inspector or pickup girl. Ortiz testified that during her first day in the training center her supervisor, Ester Juarez, instructed her not to go to the bathroom except in cases of absolute emergency. Juarez testified that she had never instructed Ortiz not to go to the bathroom. I credit Juraez. The record establishes that Ortiz was inclined to downplay her deficiencies and exaggerate those of Respondent. On or about June 4 and 5, Melendez gave a series of identical speeches concerning the Union and the forthcom- ing election to all of the employees. She characterized this speech as her "economic" speech, in which she presented economic arguments why the employees should vote against the Union. She presented arguments that Respon- dent's employees were as well off with respect to pay and benefits as the employees of the unionized plants in El Paso. Apparently it was brought to her attention that the union plants in El Paso had one more paid holiday annually than Respondent granted its employees. Melendez then asked the employees present to vote by a show of hands whether they wanted an additional paid holiday annually in lieu of Respondent's annual picnic, held on a Saturday, a nonwork day. Melendez, whom I do not credit in that respect, testified that, in spite of calling for a vote on the matter, she told the employees that she could not promise them anything and that Respondent would let them know how it came out. Several employees testified that at the meetings which they attended a substantial majority voted in favor of the additional paid holiday. All of the employees who testified with respect to these meetings said that they were never informed as to the outcome of the vote. Melendez testified that Respondent tabulated the results of all the meetings and that the majority voted in favor of the picnic. She also testified that this information was available to any employee who asked for it. No employee testified concerning receipt of such information. In this respect I do not credit Melendez. Respondent offered no proof concerning the tabulation itself and failed to produce any employee who had been informed concerning the results, whereas to the contrary all of the employees who testified about the meetings said that a substantial majority voted in favor of the paid holiday and that they never learned the overall outcome. It seems self-evident that monetarily a day's pay would be substantially greater than whatever one might consume at a picnic, and that therefore a majority would prefer an additional paid holiday to a picnic on their own time. The record testimony of employees present at the speeches establishes that they were given to understand that Respondent was offering them an additional paid holiday, not subject to any reservation except their choice, in an attempt to equal the benefits granted by union plants in El Paso, voted in favor of the holiday, and were not thereafter informed with respect to the overall outcome. On June 18 Respondent warned Ortiz with respect to her low production and Hurtado with respect to her low production and poor quality in the training center, and advised both that they must make a marked improvement. Hurtado's production was particularly poor, being substan- tially below standard, and Adelsperger wanted to terminate her. However, at Ponder's request, Melendez and Adelsper- ger agreed to continue working with her in an attempt to improve her performance. The same day the Regional Director issued his decision directing an election July 11. On June 24 Respondent, in a continuation of its campaign against the Union, delivered a letter in both Spanish and English signed by Ponder to all of its employees. It advised the employees that the election would be held July 11 and urged them to vote against the Union. It urged the employees to consider carefully the cost of unionism, warning that they and their families would be hurt rather than helped by the Union. It stated that Respondent had shown them how it had better wages and benefits than the union factories in El Paso. It warned them that the possible costs of strikes were lost wages, loss of property when there was no money to pay bills, and very real possibility of losing their jobs. On July 9 Respondent distributed a six-page letter signed by Ponder and Morris and a six-page pamphlet in question and answer form, both in Spanish and English, to all of the employees. The letter, after referring to the election to occur in 2 days, on the one hand stressed the futility of selecting the Union and on the other the serious harm that would in all probability result to the employees and their families if they did so. Among other things, it stated that selecting the Union absolutely would not automatically bring any wage raises or other benefits, that Respondent could not be forced to do anything which it did not want to do, and that as a result the Union would call a strike, to which Respondent would not yield, and that a strike would cause trouble and discord, including violence, fights and misery, loss of wages, unpaid debts on homes and automobiles, and loss of jobs. It stressed as a dangerous consequence of such striking that the strikers would lose everything, including their jobs. It pointed out that Respondent definitely had the right to fill the jobs of the strikers and when the strike was over those whose jobs were filled while they were striking automatically lost their right to return to work or get their jobs back. With respect to this last statement, Irene Valle, Melendez' secretary, testified that she translated the English version of the letter into Spanish and mistakenly included the above statement instead of that in the English version, which read: "Those whose jobs are filled while they are out on such a strike will have no right automatically to return to their jobs, or get their jobs back-even when the strike has ended." Mistake or not, admittedly the Spanish version found above was distributed to all of the employees, the substantial majority of whom read only Spanish. The letter then cautioned the employees not to overlook any of the foregoing before deciding how to vote. It pointed out that their jobs and security for them and their families could only be accomplished by working together, not by pulling apart. It asked the employees to wait in order to give Blue Bell, the new owner, an opportunity to make improve- ments, including keeping their earnings steadily moving upward, which they could count on without having to pay any union dues. Returning from benefits to detriments, it pointed out that instead of the job security promised by the Union many union employees wound up without any jobs, because the plant closed and went out of business. After numerous other statements, it concluded with a final HICKS-PONDER CO. 719 admonition that the employees stood to lose if the Union wei e to get in and stood to gain by keeping it out. The six-page pamphlet in question and answer form, also in Spanish and English, was distributed to all of the employees on July 9 with the aforesaid letter. This question and answer pamphlet was entitled "Unions-Can They Do What They Say?" It pointed out the futility of selecting the Union because that would not result in wage raises, only Respondent decided what the wages would be, and the Union could not make Respondent do anything it did not want to do voluntarily. It added that the Union would probably have to call an economic strike because Respondent would not give in to any of its unreasonable demands, which in turn would result in lost wages and the possible loss of homes, cars, and furniture. It then pointed out that in such event Respondent would replace the strikers and they would have lost their jobs. It stated that there would be a contract only if Respondent and the Union reached agreement and that in many cases no such agreement was ever reached. It noted that the employees would not have more Job security if the Union were elected and in fact would have less job security under a union contract. On the same day, Melendez delivered a series of identical speeches to all of the employees in groups of some 50 to 100. Melendez' speech hammered away on the same themes: the futility of selecting the Union; the fact none of its demands would be granted; the inevitability of a strike; the serious harm resulting to employees, including assaults and violence; the loss of wages; the ensuing loss of homes, automobiles, and other possessions; a warning that they would be unable to obtain Jobs elsewhere; and the ultimate loss of their jobs by permanent replacement of the strikers. Melendez stressed the serious harm and dire consequences that would befall the employees if they selected the Union, without coupling the promises of benefit if they did not as in the letter and pamphlet on the same date. Respondent produced copies of all of its letters and pamphlets to the employees and all of the speeches of Ponder, Morris, and J. L. Williams, Blue Bell's personnel director, but did not do so with respect to Melendez' speeches of June 4 and July 9. The findings herein concerning her July 9 speech are based on her recollection and those of the employees who testified concerning it. It was a long speech, consisting primarily of dire predictions, and included at least two misrepresenta- tions. Melendez used a number of props, including a velvet board on which she mounted cards, a pointer, a viewgraph, a newspaper clipping, maps of Texas and Louisiana, and a copy of the Board's Rules and Regulations and the Act. Respondent's counsel and either the plant manager or superintendent were present during each speech. In addition to her own speeches, Melendez interpreted into Spanish all of the speeches made by Respondent's other officials, and the record makes clear that the employees considered Melendez one of Respondent's principal spokesmen. She commenced by referring to her economic speech of June 4 and advising the employees the great expense the Union would be for them. She told the employees that the Union was like a business, its organizers were its salesmen, and they were trying to sell the employees a product, which would cost the employees $28,800 a year, with which Anthony Pena, the Union's International representative, could buy a new automobile. She said the employees should check the law and past experiences to see what the Union really could do for them. She told them, with reference to the Act, which she displayed and invited them to check, the purported legal rights of the Union, Respondent, and the employees. She said that the Union had the right to meet and negotiate with Respondent, that "negotiate" meant that the Union could ask, argue, and strive to persuade Respondent to grant benefits, but that Respondent had the right to and could say no and was not required to make any concessions or agree to any benefits. She stated that the employees had the right to strike or not to strike, and that in the event of an economic strike Respondent had another right under the law: to continue to operate its plant and replace the strikers with other employees, in which event the strikers would lose their jobs and have no right to return to work after the strike was over as long as the replacements remained employed. (Some of Respondent's statements concerning permanently replacing strikers specifically referred to economic strikes, some did not.) With respect to prior experience, she told the employees about many strikes the Union had caused in other plants and the extreme hardships to employees brought about thereby. She detailed the number of plants in Texas and Louisiana where the Union had engaged in strikes. She stated that such strikes resulted in the loss of wages and the resultant loss of homes, cars, and other possessions. She referred to the fact that many years before when Respondent was located in a different plant, a bomb had been thrown at the plant during a strike involving the Union, there had been much violence, women had been beaten, stripped, and assaulted, automobiles had been smashed, and the employees had suffered great wage losses. She told them that strikers would not receive unemploy- ment compensation and that the Union would grant strike benefits only to its favorites, not all of the strikers. (The record established that the Union's policy in fact was to grant strike benefits to all striking members.) She stated that the Union's parent organization was urging the U.S. Government to close the border to all "green-card" holders, Mexican residents who crossed the border daily to their jobs. Although she later so testified, she did not inform the employees that she was referring to the AFL-CIO. (The record establishes that the Union was not in favor of closing the U.S. border to green card holders from Mexico.) Respondent employed a substantial number of green card holders living in Juarez. Melendez stated that she believed that the strikers would not be hired by other employers in El Paso because they would be unwilling to hire persons who engaged in strikes or who might return to their former jobs when the strike was over. On July 10, the day before the election, Williams, Ponder, and Morris delivered a series of speeches to all of the employees. Williams read his speech in Spanish. He stressed the importance of the decision on the following day to the employees and their families with respect to their Jobs and future at the plant. He stated that no union could make Blue Bell do more than it had, and that it led the industry in wages and benefits. He asked the employees to give Blue 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bell a fair chance to achieve its objectives and all of the improvements which it planned, without union interference and the high cost the Union would mean to them. He concluded by stating that a vote for no union was a vote for Blue Bell. Ponder addressed the employees next and his speech was translated into Spanish by Melendez. He told the employees that this same Union had been trying to get in to Respondent's plant for 25 years and had made the same false promises through the years. He pointed out that they had better jobs than any union factory in El Paso without the fear of strikes hanging over them . He stated that selecting the Union would not bring about higher wages and benefits but on the contrary would result in their being seriously hurt, as it had in the past when the employees once selected this Union . He said that he wondered why the 50 or 60 employees who favored the Union did not leave and go to work in union plants. This statement resulted in considerable applause, .whereupon he added that he was tired of the Union depicting him in a black suit cracking a whip over the employees . (A circular of the Union received in evidence had so caricatured Ponder.) He then stated that the reason Respondent was so opposed to unionism was because of the great potential losses that it could bring to the employees and Respondent which they could never recover, and that the sum and substance of all that Respondent had tried to point out to the employees should answer that question. He told the employees that they should not be brainwashed by all of the Union's lies and promises, which it could never fulfill . He concluded by asking them to vote no for the good of themselves and their families. Morris in a brief statement advised the employees that as Blue Bell's chief executive he was in total agreement with everything that Ponder and Williams had said. On the morning of July 11 , Melendez called Pilar Gomez to the office. Gomez was an employee for approximately 4 years and a member of the Union 's organizing committee, known by Respondent to be a union advocate. Two employees had reported to Melendez that Gomez had said to them in the plant that Williams was calling Mexicans "S.O.B.'s." Many of the employees were of Mexican origin. Gomez denied that she had made any such statement or that she had heard Williams make any such statement about Mexicans . Melendez replied that she did not know whether Gomez had made such a statement , but that to do so was a violation of company rules and if she did so she would be terminated. Gomez, whom I do not credit in this respect, testified that Melendez told her that she was not to talk to anyone during the afternoon . Melendez whom I credit in this respect denied any such statement. Gomez returned to work and that was the end of the incident. At I p.m. Gomez was selected by the Union to be an observer at the election that afternoon . She had been on a list of possible observers for the Union but was not selected or informed that she would be such an observer until 1 p.m. There is no evidence in the record that Respondent was aware that Gomez was to be such an observer. The election commenced at 2 p .m. and the vote was 575 against and 118 for the Union. On July 14 Ponder issued a bulletin to all the employees thanking them for voting for Respondent . On either July 14 or 17, Respondent began stationing from 6 to 12 of its guards, supervisors, and officials, including its plant manager, superintendent, and engineer, on the sidewalk outside the plant, at or near the main entrance used by the employees, for approximately one-half hour at starting time, lunchtime, and quitting time every working day. Respondent employed three uniformed and armed guards for plant protection purposes . They were not supervisors and had no authority to direct the employees . The General Counsel contends that Respondent commenced this activity on July 14, the first working day after the election, while Respondent contends it did not commence until on or about July 17. In view of the findings hereinafter made, it is unimportant whether the activity commenced on July 14 or July 17. It is undisputed that it continued thereafter without cessation every morning, noon, and evening on workdays up to and including the commencement of the hearings in this proceeding. According to Respondent, on the morning of July 14, the first workday after the election, some of the Union's organizers and its employee supporters engaged in name calling, hurling insults and threatening with bodily harm employees coming to work because the Union lost the election . There is no reliable evidence in the record that this in fact occurred . The only evidence with respect thereto constituted multiple hearsay. It consisted of certain supervisors and officials testifying that Ponder had told them that certain unidentified employees had complained to him that this had occurred , plus a written notice with respect thereto signed by Ponder July 16. Ponder was not called as a witness, and the alleged complainants were never identified. For several years prior to the election every working day the Union's organizers were outside the plant on the sidewalk at or near the entrance soliciting the employees to join or support the Union. After the election, they continued to do this, but on every occasion six or more supervisors and guards were present at the entrance morning, noon, and evening. Immediately after the election the Union wished to advise the employees what steps it planned to take with respect to the outcome of the election, including the filing of objections and unfair labor practice charges, and wished to seek the support of the employees in the event that a second election should be directed. The record establishes that as a result of this constant presence of Respondent's officials and supervisors, the Union's organizers were unable to communicate with the employees at the plant entrance , because the presence of the officials, supervisors, and guards caused the great majority of the employees to refuse to stop , talk, or otherwise communicate with the Union's organizers. From the outset many of them indicated such refusal by pointing at the supervisors, shaking their heads negatively, and thereupon entering the plant or leaving the vicinity without engaging in any conversation. A few of the employees actually told the Union's organizers that they would not talk to them in the presence of the supervisors , whereas the majority refused to communicate in any manner because of the presence of the supervisors. During the first several days or weeks after the election, Respondent's supervisors and officials stationed themselves HICKS-PONDER CO. outside the plant at the entrance on a voluntary basis, as a result of a request by Ponder at a supervisors' meeting for volunteers to prevent a "recurrence" of the alleged incidents. Thereafter, apparently as a result of inadequate volunteers, Respondent established a schedule which required some of its supervisors , officials, and guards to stand at the entrance to the plant every day. Such schedule was continuing at the time of the hearings herein. Apparently each supervisor was scheduled to stand outside the entrance approximately 1 working day each week. Most of the supervisors greeted the employees with "hello" or "how are you" as they approached, but otherwise did not engage in extended conversations. Contrary to the testimony of the Union's officials and some of the employees called by the General Counsel, I find that Respondent's supervisors, officials, and guards did not physically block the Union's organizers and by that means prevent them from contacting the employees. All of Respondent's officials and supervisors and a number of witnesses called by the General Counsel, whom I credit, testified that there was no physical blocking of the Union's organizers or attempt physically to prevent contact between the organizers and the employees. As several witnesses, whom I credit, testified, the scene was uniformly peaceful. On the other hand, it was substantially undisputed that as a result of the constant presence of the supervisors whenever the employees were entering or leaving the plant, nearly all of the employees refused to talk or otherwise communicate with the Union's organizers. The record establishes that the name calling, insults, and threats alleged to have occurred on the first day or two of work after the election never occurred again. On July 23, Respondent terminated Hurtado. From the outset of her transfer on June 6 to the training center, her rate of progress in production was substantially below standard. Respondent conducted a 14 weeks' training program in its training center, during which the employee- trainees were expected to progress in sewing production from zero to approximately quota, in general according to a percentage curve which Respondent had established from experience. After satisfactory completion of the training program, employees were transferred to the production lines. Apparently Hurtado was unable to learn to operate a sewing machine efficiently. On many days she produced nothing. Juarez was Hurtado's instructor-supervisor. On June 18 Respondent warned Hurtado that she would have to improve. Adelsperger wanted to discharge her then but at Ponder's request he and Melendez agreed to continue working with Hurtado in an attempt to improve her performance. In spite of this warning, Hurtado's progress and production in the training center remained very substantially below standard. By mid-July, when her normal progress should have been in excess of 50 percent of quota according to Respondent's established training curve, Hurtado's production was still varying from zero to a high of 11 percent daily. Hurtado, whom I do not credit in this respect, testified that Respondent had promised her 3 months in which to learn the operation in the training center. Apparently she had confused such an alleged understanding with the fact that Respondent' s training 721 program lasted 14 weeks, during which trainees could be and in fact were discharged if they did not make adequate progress. Comparatively, or by any other standard, Hurtado's progress was subnormal. Juarez frequently warned Hurtado that her production was subnormal. On or about July 23 Juarez repeated this warning to Hurtado, who admitted that she could not do any better and told Juarez to do whatever she wanted with Hurtado. Juarez took Hurtado to the personnel office. After Juarez informed Melendez of the facts and Hurtado's admission, Melendez discharged her for substandard production. Melendez informed Hurtado in reply to her request that she could not be transferred back to her former job. The record establishes that Respondent then and thereafter had no jobs available other than sewing machine operators and office personnel, and moreover had an established policy of not transferring employees who failed to make the grade on one operation to another. C. Interference, Restraint, and Coercion The allegations of interference, restraint, and coercion in the complaint, as amended and as modified by the bill of particulars, do not appear chronologically, but in the interest of clarity will be so considered herein. The complaint as amended alleged that a month or two before July I I Respondent by Melendez made statements to employee Baca designed to and which did give the impression of surveillance of her union activities. As hereinabove found, on or about March 7 Melendez informed Baca that Respondent had received reports that she had been bothering employees by soliciting them for the Union when she and the employees were supposed to be working. Baca denied that she had done so, admitting that she knew that such was improper and against the rules. Melendez warned Baca that if she did so in the future she would be discharged. Respondent issued a written notice to Baca to the same effect. Respondent did not advise Baca who its complainants were, which is understandable. The General Counsel contends that the foregoing conduct constitutes giving the impression of surveillance of union activities. Baca was a leading advocate of the Union and knew that Respondent knew this. It is well settled that working time is for work and therefore rules prohibiting union solicitation during working time are valid and violation justifies discipline, including discharge. Obviously warning Baca was less severe, or more lenient, than other disciplinary action, including discharge, which Respondent could have taken. No further incidents occurred nor was Baca given any further warnings. Patently warning an employee for allegedly engaging in such conduct based on legitimate complaints does not constitute surveillance in violation of the Act. The Board has held, in a case involving this same Respondent, that warning employees for engaging in alleged similar misconduct, based on com- plaints of other employees, is not a violation of the Act, but can only be viewed as an attempt to preserve plant discipline.4 I conclude and find that by the above actions Respondent did not give the impression of surveillance, or violate the Act, as alleged in the complaint. 4 Hicks Ponder Company, 168 NLRB No. 103 (1967). 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 13 Respondent gave its first speech to the employees as part of its campaign to persuade them to vote against the Union in the forthcoming election. The complaint as amended contains three allegations of interference, restraint, and coercion concerning Respon- dent's various speeches and published literature. Inasmuch as such speeches and publications constituted integral parts of Respondent's overall campaign against the Union, they will be considered jointly hereinafter with respect to their overall effect rather than as separate and unrelated incidents, with the exception of the speech by Melendez separately alleged as promising and granting increased paid holidays and other benefits. The complaint alleged that on or about May 22 Respondent, by Molinar, both engaged in conduct which gave employees the impression that their union activities were being kept under surveillance and kept such activities under surveillance. On May 21 Castellanos , a known union advocate, returned to work after approximately 4 months' maternity leave. On May 22 when she and Tarin, whose union adherence was not known by Respondent, were going to lunch, Molinar, Tarin's supervisor, observed their actions and overheard their conversation concerning visiting the home of another employee that evening to secure her signature on a union card . Castellanos physically pointed out the employee to Tarin. As found hereinabove, Molinar was able to and did overhear their conversation and observe their actions, including the identification by Castellanos of the employee described by Tarin. The General Counsel contends that the foregoing constituted both keeping the employees' union activities under surveillance and giving them the impression that such activities were being kept under surveillance . This conver- sation and activity occurred either inside the plant in the hallway at the entrance or immediately outside the entrance, at a time when substantially all of the employees and supervisors were going to lunch . Obviously Molinar had a right to be where she was and under the circumstances her presence or that of any supervisor was probable, and her overhearing and observing the employees was both inadvertent and coincidental . There is no contention or proof that Molinar's presence was deliberate. Under the circumstances, it can hardly be characterized as surveillance or giving the impression of surveillance. If employees elect to engage in overt union activities in places where they know, or should know, that supervisors are apt to be and have a right to be present, they run the risk and can hardly be restrained or coerced by the to-be-expected presence of a supervisor, nor can such be considered as giving the impression of surveillance. I conclude and find that, although Molinar did overhear the conversation and subsequently took action with respect thereto as discussed hereinafter in connection with the discharges of Castellanos and Tarin, the General Counsel has failed to sustain his burden of proving that Respondent, by Molinar, kept the union activities of employees under surveillance or gave employees the impression thereof, as alleged in the complaint. The complaint alleged that on or about June 4 Melendez made statements to an employee which gave the impression that her union activity was being kept under surveillance. This concerned the incident on June 4 when for the second day in succession Ortiz was called to the personnel office and chastized for excessive talking , during which interview Melendez also advised her that Respondent had been informed by an employee that Ortiz had been soliciting a group of employees for the Union in the ladies' restroom at a time when both she and other employees should have been working. Although Ortiz denied having discussed the Union in the ladies' restroom with other employees during working hours, she admitted that she knew that such conduct was against the rules . Respondent admittedly knew that Ortiz was a member of the Union's organizing committee, and Ortiz was aware of Respondent's knowl- edge. Again, as in the case of Baca , Respondent was merely criticizing and warning an employee for reportedly engaging in union solicitation at a time when she and the employees were supposed to be working, which can only be viewed as an attempt to maintain plant discipline. I conclude and find that by the above acts Respondent did not give the impression of surveillance of union activity, or violate the Act, as alleged in the complaint. The complaint alleged that on or about June 5 Melendez promised and granted to Respondent's employees in- creased paid holidays and other benefits to induce them to refrain from supporting the Union. During June 4 and 5 Melendez gave a series of identical speeches to all of the employees, which she characterized as her economic speech. This was Respondent's second speech in its campaign against the Union, the first having been delivered by Ponder May 13. The general tenor of Melendez' speech to the employees was that they were economically as well or better off without a union than the employees in other plants in El Paso which were unionized . However, the fact that the employees in such union plants received one more paid holiday annually than Respondent's employees was brought up during her speech. As a result Melendez asked the employees to vote by a show of hands whether they preferred an additional paid holiday to the annual picnic which Respondent held on a Saturday, a day when the employees did not work. As found above, a substantial majority of the employees voted in favor of the additional paid holiday at those meetings at which the employees who testified were present, which is readily understandable in view of its substantially greater monetary significance. Contrary to the testimony of Melendez, whom I do not credit in that respect, the employees understood that they were being promised an additional annual paid holiday if they voted for it. It is, of course, well settled that promising employees additional benefits to induce them to refrain from supporting their labor organization is a violation of the Act.5 It will be recalled that in the opening speech of Respondent's campaign, Ponder told the employees that Respondent would continue to provide everything which went to make up a good job so that they would never want a union, and was going to do everything within its power to make improvements , including improved earnings. I conclude and find that Respondent, by promising its employees an additional paid holiday to induce them to refrain from supporting the Union, interfered with, 5 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 ( 1964). HICKS-PONDER CO. 723 restrained, and coerced them in violation of Section 8(axl) of the Act. On June 24 Respondent distributed a letter by Ponder to all of the employees. As noted above with respect to Respondent's various speeches and publications, the complaint contains three separate allegations that such communications interfered with , restrained, and coerced its employees by advising them that Respondent would not negotiate with the Union, agree to any of its proposals, or agree to any contract if it were elected, that as a result a strike would ensue, that the employees would be prejudiced and hurt thereby, and that they would be terminated for engaging in such strike. Said allegations and Respondent's various speeches and publications are here considered jointly inasmuch as the latter constituted integral parts of Respondent's overall campaign against the Union, patently had a cumulative affect on the employees, and thus, as also urged by counsel for Respondent, should be viewed overall rather than as separate and unrelated incidents. With the exception of Melendez' "economic" speech of June 4, considered above, they consisted of Ponder's speech of May 13, Ponder's letter to all employees June 24, speeches by Melendez to all of the employees on July 9, a six-page letter signed by Ponder and Morris, chairman of the board of Blue Bell, and a six-page pamphlet in question and answer form distributed to all employees on July 9, 2 days before the election, and speeches by Ponder, Morris, and Williams to all of the employees on July 10, the day before the election. Viewed overall, Respondent's speeches and publications stressed the futility of selecting the Union as a bargaining agent, stated that Respondent was not required to and would not agree to any of the Union's proposals during negotiations and hence no benefits would derive from electing the Union, that as a result the Union and the employees would have no alternative but a strike, that as a result of such strike the employees would be seriously harmed by violence, assaults, loss of wages, loss of homes, automobiles and other possessions bought on credit, and inability to secure employment elsewhere, that Respondent would not yield to the demands of such a strike but would continue to operate by hiring permanent replacements, and that as a result when the strike was over the employees could not return and would have lost their jobs. Respondent's position in essence is that its speeches and publications constituted an overall educational program, consisting primarily of accurate predictions of the probable consequences of unionization, protected by the free speech guarantee of the First Amendment of the Constitution and by Section 8(c) of the Act; i.e., views, argument, or opinion sans threats or promises of benefit. The Supreme Court has recently delineated the criteria applicable to distinguishing permitted employer predictions from proscribed threats, pointing out, inter alia, that an employer "may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at ..." Among other things, the Court pointed out that the employer therein "had no support for his basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard ... " The Court stated that the Board has the "duty to focus on the question `what did the speaker intend and the listener understand,' ..." and the Court further observed that an employer "can easily make his views known without engaging in `brinkmanship' when it becomes all too easy to `overstep and tumble into the brink.' . . . At the least he can avoid coercive speech simply by avoiding conscious overstate- ments he has reason to believe will mislead his employees." 6 The findings hereinabove set forth the portions of Respondent's various speeches and publications pertinent to the allegations of the complaint . Thus in the first speech on May 13, Ponder advised the employees that Respondent was going to do everything legally possible to keep the Union out and would continue to provide every improve- ment which went to make up a good job, including improved earnings , so that they would not need or want the Union. He then warned the employees that unions led to strikes, the Union would cause them serious harm, and characterized such results as "this horror." He told the employees that the Union's promises were false and that such benefits would not automatically occur if the Union were elected, thus laying the groundwork for later statements that Respondent would not agree to any of the Union's demands. On June 4 Melendez tried to demon- strate to the employees why they were better off economically than the employees working in El Paso union plants, and when the fact that such plants had an additional annual paid holiday was brought up, promised the employees an additional paid holiday. Respondent's letter of June 24, after urging the employees to vote against the Union, warned that they and their families would be hurt by electing the Union. It stated that Respondent had shown them how it had better wages and benefits than the union factories in El Paso, an obvious reference to the promise of benefits on June 4. It warned them that the possible cost of strikes was lost wages, loss of property because of no money to pay the bills, and the very real possibility of losing their jobs. On July 9, 2 days before the election, in the six-page letter, the six-page question and answer pamphlet, and Melendez' speech to all of the employees, Respondent substantially accelerated the crescendo of its warnings and ominous predictions . The letter stressed the futility of selecting the Union and the serious harm that would probably result to the employees and their families if they did so . It underscored that electing the Union absolutely would not automatically bring about any wage raises or other benefits, that Respondent could not be forced to do anything which it did not choose to do, that the result would be a strike , which would cause the employees trouble, discord, violence and misery , loss of wages, unpaid debts on homes and automobiles , and the ultimate loss of their jobs. It advised the employees that if such strike occurred, Respondent would fill their jobs and when it ended those whose jobs were filled while they were striking 6 N.L.R. B. v. Gissel Packing Co., 395 U.S. 375 (1969). 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would automatically lose their right to get their jobs back. It asked the employees to wait for the new owners to make improvements, including increased wages, which they could count on without having to pay union dues . It pointed out that instead of the job security promised by the Union, many union employees wound up without any jobs. It finally underscored that the employees stood to lose if the Union got in and stood to gain by keeping it out. The six-page question and answer pamphlet developed the same theme, pointing out the futility of electing the Union because that would not result in any wage raises because only Respondent decided what the wages would be, and the Union could not make it do anything it did not want to do. It noted that as a result the Union would probably have to call a strike, which in turn would result in lost wages, the possible loss of homes, cars, and furniture, and the ultimate loss of their jobs because Respondent had the right to and would replace the strikers by hiring other employees . It pointed, out that there would not be a contract unless Respondent and the Union reached agreement and in many cases no such agreement was ever reached, It stated that with a union contract the employees would have less job security rather than more. On the same day Melendez delivered a series of identical speeches to all of the employees . Unlike Respondent's other speeches and publications, Respondent had no written record of Melendez' speech. Perhaps coincidentally, it contained more serious and ominous predictions than any of the other speeches and publications , and included several misrepresentations. The employees viewed her as one of Respondent's principal spokesmen , because in addition to her own speeches shelinterpre 'ted into Spanish substantially all of the speeches delivered by Respondent's other officials . In general she stressed the same theme: the futility of, and serious harm that would result from , electing the Union . After reminding the employees of her economic speech on June 4, she again pointed out the great cost that the Union would represent to the employees, amounting to more than $28,000 a year, with which the Union's International representative could buy himself a new car. She attempted to explain the legal rights of the Union, Respondent, and the employees under the Act, stating that the Union had the right to meet and negotiate with Respondent, which meant that it could ask, argue, and strive to persuade Respondent to grant benefits, that Respondent had the right to and could say no to all such requests and was not required to make any concessions, and that the employees had the right to strike or not strike. She pointed out that in the event of such an economic strike, Respondent had the right to continue to operate its plant and replace all of the strikers with other employees, in which event they would lose their jobs and have no right to return to work after the strike was over as long as the replacements remained employed . She described the number of strikes which the Union had called in other plants in Texas and Louisiana, and stressed the extreme hardships resulting to the employees as a result thereof, including violence , beatings, stripping of women, bombings and great financial losses, including wages, homes, automobiles and other possessions . She pointed out that strikers would not receive unemployment compensation. She misrepresented that the Union would not grant strike benefits to all of its striking members but only to some of its favorites . She told the employees that the Union 's parent organization, whom she did not identify , was urging the U.S. Government to close the Mexican border to all green card holders, Mexican residents who worked in the United States. Many of Respondent's employees were green card holders. In fact the Union was not opposed to such green card holders. Unlike the other speeches and publications, Melendez warned the employees that she believed that as strikers they would be unable to secure employment with other employers in El Paso. On July 10, the day before the election, Williams, Ponder, and Morris made speeches to all of the employees. Williams' short speech stressed the importance of the employees' decision in the election to them and their families with respect to their jobs and future . He stated that no union could make Respondent do more than it had, and asked them to give Blue Bell a chance to bring about the many improvements which it planned for them without union interference . Ponder told the employees that the Union had been trying to get into the plant for 25 years and had made many false promises to them. He pointed out that electing a union would not bring about higher wages and benefits but on the contrary would result in their being harmed . He suggested that the 50 or 60 employees who favored the Union resign and go to work in a union plant. (The General Counsel 's suggestion that this constituted an admission of surveillance is without merit, inasmuch as the Union had furnished Respondent a list of more than 50 employees designated as members of the Union 's organiz- ing committee). He again advised the employees that they should not believe all of the Union 's lies and promises which it could not fulfill . Morris briefly advised the employees that as Blue Bell's chief executive he was in total agreement with everything that Williams and Ponder had said. Viewed in an overall context, it seems clear and I find that Respondent's speeches and publications exceeded permissible predictions and including warnings and threats in violation of the Act, as well as promises of benefit. (Although not alleged in the complaint , with the exception of Melendez' speech of June 5, Respondent's speeches and publications included promises of benefit , which are undisputed inasmuch as they appear in the written copies of the speeches and publications produced and offered in evidence by Respondent). Respondent 's speeches and publications stressed the futility of electing the Union because Respondent intended to refuse any and all of its demands or requests and as a result a strike was almost inevitable, and threatened the employees and their families with serious harm therefrom , including violence, injury, and assault, loss of wages, the loss of homes, automobiles, and other possessions, that the Union would not pay strike benefits to many of the strikers, that the strikers would be unable to secure employment elsewhere in El Paso, and that the strikers would ultimately lose their jobs permanently because Respondent would employ replacements and the strikers would be unable to return to their jobs after the strike was over. Such warnings and threats clearly exceed the bounds of permissible predictions delineated by the HICKS-PONDER CO. 725 Supreme Court in Gissel, supra. Moreover, the Board and the courts of appeals have frequently held similar speeches and publications, predicting the futility of electing a union because the employer would not agree to any of its demands, the inevitability of strikes, that employees would be seriously harmed thereby, and that they would lose their jobs as a result, in violation of the Act.7 In Ideal Baking Company and Kellwood 8 the Board found substantially similar speeches to constitute threats in violation of the Act. In a recent decision, the Court of Appeals for the Fifth Circuit affirmed in full the Board's finding in a proceeding involving this same Respondent at another plant that a similar speech, but containing fewer and less drastic threats than found herein, violated Section 8(a)(1) of the Act.9 Although Respondent's letter of July 9 to the employees advised them that if they struck Respondent had a right to fill their jobs and when the strike was over those whose jobs were filled while striking automatically lost their right to return to work or get their jobs back, Respondent's other statements, including the English version of that letter, were to the effect that economic strikers who were "permanently" replaced lost their jobs and could not return to work when the strike ended, apparently in the belief that this represented a correct statement of the law. While this may have at one time been legally correct, it was not at the time of such statements, which were made after the decisions of the Supreme Court in Fleetwood Trailer and Great Dane Trailers and their must now be considered well settled that employees engaging in an elucidation by the Board in Laidlaw.10 Since those decisions it economic strike, upon their unconditional and continuing application for reinstatement, retain the status of employees and are entitled to reinstatement as vacancies occur, absent substantial economic or business justification for refusal to reinstate them with respect to which the burden of proof is upon the employer, and refusal to reinstate them without such justification constitutes an act so inherently destruc- tive of employee rights as to be an unfair labor practice without reference to intent or improper motivation. Since those decisions it is evident that economic strikers who have been replaced do not lose their right to reinstatement or reemployment when the strike had ended, but instead must be recalled as vacancies occur absent substantial business justifications, which right Respondent not only failed to explain but misstated. Respondent's proof established that it has a constant and substantial employee turnover as the result of resignations and discharges for cause. As the Board pointed out in Laidlaw: "As economic strikers . . . they remained employees who had offered to abandon the strike and who were available to fill openings as such arose . . . . This right of reinstatement continued to exist so long as the strikers had not abandoned the employ of Respondent for other substantial and equivalent employment . Moreover, having signified their intent to return by their unconditional application for reinstatement and by their continuing presence, it was incumbent on Respondent to seek them out as positions, were vacated." Since the decision of the. Supreme Court in Fleetwood, supra, the Court of Appeals for the Sixth Circuit has pointed out that telling employees that if they engage in an economic strike they can be permanently replaced is legally incorrect and a violation of Section 8(a)(1) of the Act. 11 The complaint alleged that by its publications and speeches, Respondent told its employees that it would not negotiate, agree to any of the proposals of the Union, or agree to any collective-bargaining contract with the Union if it were elected, that as a result a strike would ensue, that the employees would be prejudiced or hurt thereby, and that they would be terminated for engaging in such strike. I am satisfied and find that Respondent, by its entire program of speeches and publications viewed collectively, warned and threatened its employees that the election of the Union would be futile ; that Respondent would not agree to any of the Union's demands or proposals ; that as a result a strike would ensue which would seriously harm the employees by resulting in violence , assaults, and fights, the loss of wages, and the concomitant loss of homes, automobiles, and other possessions; that they would be unable to secure employment elsewhere in El Paso; and that Respondent would employ permanent replacements as a result of which they would lose their right to return to work or get their jobs back when the strike was over, and promised its employees additional benefits if they voted against the Union, thereby interfering with , restraining, and coercing its employees in violation of Section 8(a)(1) of the Act. The complaint as amended alleged that Respondent by Melendez on or about July 11 made statements to an employee designed to give and which gave the impression that her union activities were being kept under surveillance. This allegation concerned the incident when Melendez informed Gomez, a known union advocate, that two employees had reported that she had made statements in the plant that Williams was calling Mexicans "S.O.B.'s." After Gomez denied having made any such statement or having heard Williams make any such statement in the plant, Melendez warned her that if she did so in the future it was a violation of the rules and she would be discharged. For the same reasons as heretofore discussed in connection with the Baca and Ortiz incidents, I conclude and find that Respondent was properly attempting to maintain plant discipline, and that by such actions it did not give the impression of engaging in surveillance of its employees' union activities, or violate the Act. The complaint as amended and modified by the bill of particulars alleged that Respondent from on or about July 7 J. P. Stevens & Co. v. N.L. R.B.,: 3801 F.2di 292 (C.A.2, 1967),,cert. denied 389 U.S. 1005; Serv-Air Inc. v. N.L.R.B. 395 F.2d 557 (C.A. 10. 1968); Ideal Baking Company of Tennessee, Inc., 143 NLRB 546 (1963); Hortex Manufacturing Company, Inc., 147 NLRB 1151 (1964); Kawneer Company, 164 NLRB 983 (1967); Block-Southland Sportswear, Inc., 170 NLRB No. 101 (1968); Winfield Mfg. Co., Inc., 173 NLRB No. 103 (1968): F. W. Woolworth Company, 173 NLRB No. 173 (1968): and Kellwood Co., 175 NLRB No. 79 (1969). A Fn. 7, supra. 9 Hicks-Ponder Company v. N.L.R.B., 424 F.2d,538 (C.A. 5, 1970), affg. 174 NLRB No. 12 (1969). 1° N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375 (1967)j.;N.L.R.B. V. Great Dane Trailers, 388 U.S. 26 (1967); and Laidlaw Corp., 171 NLRB No. 175 (1968). 11 Dayton Food Fair Stores, Inc. v. N. L. R. B., 399' F.2d153 (C.A. 6, 1968). 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14 to 29 in and about the plant and its entrance engaged in surveillance of the employees' union activities and conduct which gave the employees the impression that their union activities were being kept under surveillance. These allegations referred to the continued presence of Respon- dent's supervisors, officials, and guards at the entrance to the plant every morning, noon, and evening when the employees were entering or leaving the plant continuously from on or about July 14 or 17 to and including the date of the hearing. As hereinabove found, Respondent, allegedly because it had received reports that the Union' s organizers and employee sympathizers had hurled insults at and threatened with harm employees coming to work the first morning or two after the election because they had voted against the Union, ordered from 6 to 12 of its supervisors, officials, and guards to stand at the plant entrance for one- half hour every morning, noon, and evening according to a fixed schedule, which continued to and including the date of the hearings. The, record contains no reliable or substantial proof that such misconduct by the Union's organizers or employees ever occurred, or that if it did it was ever reported to Respondent, Respondent's proof consisting of nothing but multiple hearsay. The record establishes that by the presence of from 6 to 12 supervisors, officials, and guards every working day, Respondent effectively prevented the employees from contacting the Union's representatives, who appeared at the entrance daily, and them from contacting the employees. For obvious reasons, many of the employees were afraid or unwilling to contact the Union's organizers in the presence of their supervisors and officials, and thus Respondent prevented its employees from engaging in rights and activities guaranteed by the Act. Assuming arguendo that the alleged misconduct by the Union's organizers and employee sympathizers did occur on the first day or so after the election, and that Respondent's activity in reaction thereto might have had some color of right at its inception, indefinite continuance for a period of more than 4 months every morning, noon, and evening, without any repetition of such misconduct, thereby effectively preventing the employees from contacting the Union, can hardly be justified. Respondent is not entitled to take upon itself enforcement of the law. If such misconduct occurred or was repeated, Respondent should have reported it to the proper authorities, including the police department, who are empowered to take the appropriate steps to prevent its repetition and arrest and punish any such offenders. Respondent could have effectively prevented any recurrence by stationing one of its guards at the entrance to report any such incidents to Respondent and/or the proper authorities. The Board and the courts, in the development of the legal concepts which permit an employer to assemble and address his employees in "captive audiences" and prohibit unions from engaging in organizational activities in and upon an employer's premises, have frequently emphasized the concomitant right of unions to solicit employees at plant entrances on public property. Frequently this is the only place where a union can effectively solicit support from a large number of employees, many of whom at least initially may be disinclined to attend union-sponsored meetings. I conclude and find that Respondent by such conduct kept the union activities of its employees under surveillance, gave its employees the impression that their union activities were being kept under surveillance, and effectively prevented such activities, thereby interfering with, restraining, and coercing its employees in violation of Section 8(a)(1) of the Act.12 D. Discrimination in Hire, Tenure, Terms, or Conditions of Employment 1. Tarin and Castellanos The complaint alleged that on or about May 22 Respondent discharged Tarin, and on or about May 23 discharged Castellanos, because of their union activities. Their discharges are considered together because, as herein found, they arose out of the same incident. As hereinabove found, Castellanos returned to her job on May 21 after approximately 4 months' maternity leave. She had worked for Respondent approximately 6 years. Respondent knew that she was an advocate of the Union and a member of its organizing committee, her name having been included in the list furnished to Respondent. On the other hand, before May 22 Respondent did not know that Tarin was a union advocate. She had been employed for about 15 months. On May 22 when Tarin and Castellanos were going to lunch together, Molinar, Tarin's supervisor, who knew that Castellanos was an active member of the Union, overheard their conversation and observed their activities at or near the plant entrance concerning visiting another employee that evening for the purpose of securing her signature to a union card. Although I have found that this occurred inadvertently, Respondent for the first time learned of Tarin's union activities. That same afternoon Molinar had Tarin discharged and the following day Respondent discharged Castellanos. The timing is, of course, significant, although conceivably their discharges could have been coincidental. Respondent knew of the pendency of the election and on May 13 had advised its employees in Ponder's speech that it was going to do everything legally possible to keep the Union out. Before going to lunch Tarin had been assigned some repairs by Martinez, her new forelady. Tarin repaired approximately 1 dozen of the 18 dark green slacks with the wrong color thread, a light blue. Immediately after lunch and hearing and observing the above conversation and activities between Tarin and Castellanos, Molinar called Tarin's attention to her mistake. Tarin admitted her mistake, but said she thought it was not significant because it would not show when the slacks were worn. Although Tarin immediately corrected her error by redoing the repairs, Molinar reported the matter to Hamilton and Melendez and had Tarin discharged. During the discharge interview, Molinar and Martinez never informed Melendez that Tarin had corrected her mistake by redoing the repairs. Hamilton was not present. Admittedly Tarin had been previously warned twice about her poor quality; i.e., 12 N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d 614 (C.A. 6, 1963); and Bauer Welding, Inc., 154 NLRB 954 (1965). HICKS-PONDER CO. 727 excessive repairs. Although Molinar and Martinez testified that Tarin had been guilty of other misconduct the same day, allegedly consisting of placing some unrepaired slacks on a work bench where only repaired slacks were to be placed, and attaching bundle tickets to her production sheet indicating completed work which she had not completed, neither of these allegations were called to Tarm's attention or discussed with Melendez during the discharge interview. Respondent had prepared Tarm's two checks and termination notice, which she refused to sign, before her discharge interview. That same day Respondent lowered Castellanos ' tandem sewing machines as a result of her complaint the prior day that they were too high for her to operate , which admittedly was the case . That afternoon Castellanos made five or six complaints to Meza that her sewing machines were operating improperly, resulting in five or six calls to the mechanic and Meza complaining to Adelsperger about Castellanos' constant complaining . The following noon, May 23, Melendez called Castellanos to the office and discharged her, allegedly because she was physically unable to perform her work, as stated in her termination notice. Meza, Adelsperger, and Hamilton also were present at this discharge interview. As in Tarin's case, Castellanos' check and termination notice had been prepared before the interview. Respondent's witnesses , whom I do not credit in that respect, testified that during the 2 days before Castellanos' discharge, she complained about her back hurling. Castellanos , whom I credit, testified that her back did not hurt and that she had not complained about it hurling during that time . In her pretrial affidavit and testimony before the Texas Employment Commission, as well as her testimony in this proceeding, Castellanos uniformly denied that her back hurt or that she complained about it after she returned to work May 21. It seems clear from the record and I find that Meza's complaints to Adelsperger about Castellanos concerned her complaining about the condition of her sewing machines and not about her back The parties litigated the issue of whether Castellanos complained about her back hurting at great length , and the record contains numerous exhibits includ- ing many reports and certificates from Dr. Palafox, Castellanos' physician. Respondent contends that because Dr. Palafox found evidence of some slight pain and discomfort in some of his examinations , caused by hyperextension (bending back) during the examination, Castellanos' testimony that her back did not hurt and that she did not complain about it while working the two days cannot be credited. Castellanos injured her back in March 1968 while working for Respondent. The injury was a ruptured vertebrae disc , also called a traumatic lumbar discogenic syndrome, for which she filed a claim and was reimbursed by Respondent's insurance carrier. Upon release by Dr. Palafox, she returned to work in October 1968 and continued to work without difficulty or complaint. On March 28, during maternity leave and after the birth of her child, Dr Palafox stated in a "final report" to the insurance carrier that Castellanos continued to have some pain and discomfort in her lower back, but was advised that she could return to work . Shortly before April 18 Castellanos requested an extension of I month on her maternity leave, and Respondent requested her to secure a doctor's certificate. Castellanos furnished Respondent with such certificate from Dr . Palafox dated April 18 which stated that she had been advised to stay off work until May 18. Dr. Palafox reported that Castellanos continued to have marked weakness in her back , that hyperextension was slightly painful and limited, and that her problem seemed to be mostly weakness of her muscles . On May 16, Dr. Palafox examined Castellanos again , reported that hyperextension was slightly painful and limited, that she continued to have some pain and discomfort in her lower back , and that she had been advised to return to work on May 21 on a trial basis. He signed a certificate which Castellanos delivered to Melendez May 21 stating that Castellanos had been advised to return to work that day and to feel free to call his office if additional information was needed. During the discharge interview , Melendez informed Castellanos that Respondent had decided to discharge her because she was physically unable to perform her work. Although Respondent hadjust received the certificate from Dr. Palafox that Castellanos was physically able to return to work, it made no attempt to contact him with respect to its contrary medical conclusion , although he had suggested Respondent do so if it had any questions . Castellanos, after denying that her back hurt or that she had complained about it, asked Melendez how Respondent could conclude in 2 days that Castellanos was physically unable to perform her work after she had returned with a certificate from her doctor stating that she was able to do work . Melendez' answer was because Castellanos was constantly complain- ing to her supervisor about things a normal operator would not complain about. Castellanos then informed Melendez that she had been instructed by her previous supervisor to call deficiencies in the sewing machines to her attention so that Castellanos would not be charged for repairs caused by such defects. Meza then said that Castellanos had more repairs than the other two operators, who were new trainees, combined . Inasmuch as Castellanos had been back at work under Meza's supervision only 2 days, during which time her sewing machines were not operating properly and according to Respondent 's other witnesses Castellanos produced little or nothing , it is apparent that she could not have had many if any repairs. After her discharge, Castellanos visited Dr . Palafox on May 30 at her attorney's request and gave him Respon- dent's termination notice, which stated that she had been discharged because she was physically unable to work. Dr. Palafox' report on June 3 stated that Castellanos had some slight tenderness and pain in her back upon hyperextension and lateral flexion. It further stated that his tests revealed that she had improved since her examination May 16 when he had cleared her to return to work , disclosing substantial- ly greater quadriceps strength and that her neurologic condition was normal . Dr. Palafox concluded that Castella- nos was "probably unable to do heavy physical work , if that is what is required of her." Patently this was based on the termination notice, which stated that she was physically unable to perform the work . It is quite clear from the doctor's objective examinations and report that on May 30 Castellanos was better than when he had authorized her 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to work on May 21.On June 18 Dr. Palafox reported substantially the same results from another examination, stating that hyperextension and right and left lateral flexion were slightly painful and limited. Dr. Palafox, clearly qualified as an expert , testified that in his opinion Castellanos was physically able to return to work May 21 and thereafter. He testified that he had treated hundreds of similar cases and had returned to work persons with similar injuries in nearly every case. He pointed out that such back conditions were hereditary, some persons continued to experience some pain but learned to live with it , and substantially all of them were able to return to their normal work , provided it did not involve heavy physical work . Admittedly Castellanos' work did not. Respondent's contention that Castellanos' testimo- ny, that she did not complain about her back hurting while working, cannot be credited, because Dr. Palafox found slight pain as a result of hyperextension during examina- tion, is without merit . The fact that she experienced slight pain during hyperextension does not refute her testimony that she did not experience pain while working or complain about it . Even if Castellanos had complained about her back hurting, this would not establish or warrant Respon- dent's conclusion that she was physically unable to perform her work contrary to her doctor's certificate . The record establishes and I find that on May 21 and thereafter Castellanos was physically able to perform her work, and that Respondent's stated reason for her discharge was unfounded. Respondent could readily have ascertained whether Castellanos was physically able to work by contacting her physician, which he had in fact suggested. Under all of the circumstances , I am satisfied and find that Respondent's reasons for discharging Tarin and Castellanos were pretexts , that the real reason was their union activities, ascertained with respect to Tarin the same day, and that Respondent seized upon Tarin's mistake and Castellanos' complaints about her equipment as an opportunity to rid itself of two known union adherents shortly before the election. In both discharges Respondent had prepared the checks and termination slips before hearing from the employees . Although Tarin's case is not as clear cut, because admittedly she had been twice warned about poor quality and had used the wrong color thread in making the repairs, the fact that her immediate correction of her mistake was not called to Melendez' attention during the discharge interview, the juxtaposition of the two discharges promptly after Respondent had learned of the dischargees' union activities, and the fact that Respondent's stated reason for discharging Castellanos was without merit and contrary to the facts, convince me that the same reason, namely, their union activities, motivated Respon- dent in discharging both. I conclude and find that Respondent discharged Tarin and Castellanos on May 22 and 23, respectively, because of their union activities, thereby discriminating against them in violation of Section 8(a)(3) and (1) of the Act. 2. Ortiz and Hurtado The complaint alleged that on or about June 5 Respondent transferred Ortiz and Hurtado from their then jobs to less desirable jobs because of their union activities. Respondent was fully aware of Ortiz' union activities, but was unaware of Hurtado's union activities. Ortiz was employed as a pickup girl and Hurtado as a quality control inspector. On June 3 Gallardo, Ortiz' supervisor, brought her to the office because she had engaged in unnecessary excessive talking and had yelled at Gallardo after she had ordered Ortiz to return to her work station . Gallardo had previously warned Ortiz against excessive talking, the last time only 4 days before. During the office interview Ortiz insisted that she had not been talking, but had been waiting for two other employees to finish talking so that she could talk business with one of them, an inspector . The record establishes that Ortiz' duties did not require her to talk with inspectors, and she had previously been warned not to do so. Ortiz also claimed that she had been talking to inspectors because she was performing part of Gallardo's duties, which the latter, whom I credit, vigorously denied. The morning of the same day, unknown to Melendez at the time of this interview , Daniel had observed Ortiz talking with Hurtado for 10 consecutive minutes during which neither was working, and when he returned twice later the same morning again observed them talking and not working. Daniel reported these facts to Hamilton and Melendez later. As a result Ortiz was again summoned to the office the following morning, particularly since she had insisted at the first interview that her talking was entirely business, not excessive, and Gallardo had been picking on her. After Daniel confronted Ortiz with those facts, she admitted talking with Hurtado for 10 minutes and twice later the same morning, but insisted that they were talking business. Respondent reminded her that her duties did not require any conversations with inspectors . Melendez also warned Ortiz about spending time soliciting employees for the Union in the ladies' restroom when she and they should be working, as had been reported to Melendez. Melendez reminded Ortiz that the previous day she had insisted that her talking was always about business and that Gallardo was only picking on her. Respondent then had Hurtado brought to the office. When confronted by Daniel's statement, she admitted that she and Ortiz had not been discussing business and frequently engaged in excessive talking because of lack of supervision. The record establishes that at the time Ortiz and Hurtado were not subject to much supervision because Hurtado's supervisor worked on the first floor and Gallardo was busy supervising the line . Daniel also told Hurtado that he had observed her talking to another employee on the third floor when the latter should have been working, which Hurtado admitted. Having ascer- tained the facts from Hurtado, Melendez informed her that Respondent was going to transfer her and Ortiz to jobs in its training center where they would have more supervision in order to prevent their excessive talking . These jobs were training or learning to be sewing machine operators, which the record establishes were less desirable jobs than those then held by Hurtado and Ortiz . Hurtado protested , stating that she thought that she would be unable to learn to sew, and asked for another chance , which Melendez and Hamilton refused. As a result, Hurtado complained to Ponder, who refused to reverse Hamilton and Melendez' HICKS-PONDER CO. decision after ascertaining the facts. However, because Hurtado had been employed by Respondent for approxi- mately 17 years, Ponder instructed Hamilton and Melendez to give her every opportunity to make the grade in the training center. Melendez then informed Ortiz that because of her excessive talking she was being transferred to the training center in order to have adequate supervision. On June 6 Respondent transferred both Ortiz and Hurtado to the training center The record establishes that Ortiz and Hurtado had both engaged in excessive talking, concerning which they had previously been warned by their respective supervisors, and that such talking was unrelated to and not required by their work duties. While Respondent permitted casual brief conversations, it prohibited excessive talking which interfered with an employee's work. Respon- dent was unaware of any union activities by Hurtado, and had known for years that Ortiz was active in the Union A preponderance of the reliable, probative, and substantial evidence in the entire record convinces me, and I find, that the General Counsel has failed to sustain his burden of proving that Respondent discriminatorily transferred Ortiz and Hurtado to less desirable positions because of their union activities, as alleged in the complaint. The complaint alleged that on or about July 23 Respondent discharged Hurtado because of her union activities. As found above, after Hurtado's transfer June 6 to the training center, her rate of progress in production was substantially below standard, so much so that on many days she produced nothing. Juarez warned her of this several times. On June 18 Melendez and Adelsperger warned Hurtado that she would have to improve She was kept on at Ponder's request. Nevertheless her production did not improve, remaining substantially below standard. In mid-July her production varied from zero to 11 percent when normal progress would exceed 50 percent. She finally conceded to Juarez that she could do no better. Upon receiving this information, Melendez terminated Hurtado July 23. It is quite clear and I find that Respondent had good cause for discharging Hurtado. A preponderance of the reliable, probative, and substantial evidence in the entire record convinces me, and I find, that the General Counsel has failed to sustain his burden of proving that Hurtado was discriminatorily discharged because of her union activities, as alleged in the complaint. IV. REPORT ON OBJECTIONS As noted above, the Regional Director consolidated for hearing with the complaint herein the Union's objections to conduct affecting the results of the election, limited to the period between March 24 and July 11, which are substantially encompassed within the allegations of the complaint except one; namely, that Respondent had informed the employees that it knew the names of all employees who had signed for the Union. The record contains no evidence that Respondent informed its employees that it knew the names of all employees who had signed for the Union. The objections included an alleged 729 discriminatory discharge of a union member before the election. Based on the above findings of fact and the entire record herein, I conclude and find that the objections consisting of the allegations of interference, restraint, and coercion in the complaint, as amended, dealing respectively with distribut- ing publications and making oral statements advising employees that if the Union won the election Respondent would not negotiate, agree to any collective-bargaining agreement or agree to any of the Union's proposals, that a strike would result, that they would be prejudiced and hurt thereby, and that they would be terminated for engaging in a strike, and the allegation of discriminatory discharge of a union member have been established , and that Respondent thereby engaged in conduct affecting the results of the election . The Regional Director's order directing the consolidation of the hearings on the objections and the complaint further directed that thereafter Case 28-RC-1901 be transferred to and continued before the Board . Having sustained the aforesaid objections, I recommend that the Board set aside the election and remand the representation proceedings to the Regional Director for the purpose of conducting a new election at such time as he deems the circumstances will permit the free choice of a bargaining representative. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization , within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. By discharging Tarin and Castellanos because of their union activities , Respondent engaged in discrinuna- tion to discourage membership in the Union, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not, as alleged in the complaint, discriminated against its employees, Ortiz and Hurtado, within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices found, I shall recommend a broad cease-and- desist order.13 I shall also recommend that the election in Case 28-RC-1901 be set aside and a new election directed. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Hicks-Ponder Co., a division of Blue Bell, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in El Paso District Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of its employ- ees, by discharging or in any other manner discriminating against employees in regard to hire or tenure of employ- ment or any term or condition of employment. (b) Promising its employees additional paid holidays or other benefits to induce them to refrain from supporting the aforesaid or any other labor organization. (c) Threatening or warning its employees that election of their labor organization would be futile, that Hicks-Ponder would not agree to any of its demands or proposals, that as a result a strike would occur which would seriously harm them or would result in assaults, fights, or violence; loss of wages; loss of homes, automobiles, and other possessions purchased on credit; inability to secure employment elsewhere in El Paso; or permanent loss of their jobs or their right to return to work after termination of the strike because of the employment of replacements. (d) Keeping the union activities of its employees under surveillance, giving its employees the impression that their union activities are being kept under surveillance, or preventing its employees from engaging in union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Consuelo Tarin and Reynalda Castellanos immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of pay she may have suffered by payment to her of a sum of money equal to that which she would normally have earned from the date of her discharge to the date of such offer of reinstatement, less her net earnings during said period (Crossett Lumber Co., 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). (b) Notify Consuelo Tarin and Reynalda Castellanos 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under this Recommended Order. (d) Post at its plant in El Paso, Texas, copies of the attached notice marked "Appendix B."14 Copies of said notice, on forms provided by the Regional Director for Region 28,15 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.16 13 N.L.R.B. v. Express Publishing Company, 312 U.S. 426 (1941); N. L. R. B. V. Entwhistle Mfg. Co., 120 F.2d 532 (C.A.4, 1941); Consolidated Industries, Inc., 108 NLRB 60 (1954). and cases cited therein. 14 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." is Said notice to be furnished and posted in English and Spanish. 16 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 28, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in El Paso District Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of our employees, by discharging or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT promise our employees additional paid holidays or other benefits to induce them to refrain from supporting the aforesaid or any other labor organization. WE WILL NOT threaten or warn our employees that election of their labor organization would be futile, that we will not agree to any of its demands or proposals, that as a result a strike will occur which will seriously harm them or will result in assaults , fights, or violence; loss of wages; loss of homes, automobiles, and other possessions purchased on credit ; inability to secure employment elsewhere in El Paso ; or permanent loss of HICKS-PONDER CO. their jobs or their right to return to work after termination of the strike because of our employment of replacements. WE WILL NOT keep the union activities of our employees under surveillance, give our employees the Impression that their union activities are being kept under surveillance, or prevent our employees from engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE WILL offer Consuelo Tarin and Reynalda Castellanos immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of pay which she may have suffered as a result of our discrimination against her. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the above named or any other labor organization. HICKS-PONDER CO., A DIVISION OF BLUE BELL, INC. (Employer) Dated By 731 (Representative) (Title) Note- We will notify Consuelo Tarin and Reynalda Castellanos 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. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 7011 Federal Building & U.S. Courthouse, 500 Gold Avenue, S.W., P.O. Box 2146, Albuquerque, New Mexico 87101, Telephone 843-2555.