Farah Manufacturing Co.

FARAH MANUFACTURING CO. 601 Farah Manufacturing Company and El Paso District Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. Cases 28-CA-1977 and 28-CA-1886 December 31, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 6, 1970, Trial Examiner Herman Marx issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaged 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. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below. 1. The Trial Examiner found, and we agree, that Respondent unduly restricted the organizational rights of employees to engage in oral union solicita- tion by maintaining rules which prohibited all solicitation in any working area of the plant during nonworking time and which further denied employees access to any work areas other than their own during rest periods. The Trial Examiner's conclusion that Respondent thereby violated Section 8(a)(1) of the Act rests on the well-established principle that, absent special circumstances not here claimed, employers may not lawfully forbid employees from using their own time to solicit for union organizational purposes on plant premises. The Trial Examiner did not, however, pass on whether that principle is also applicable to Respondent's extension of its ban to the signing of union authorization cards in working areas during the employees' free time. Rather, he assumed, "without deciding, that the [union authorization] cards may be classified as union literature.. . ." As the Charging Party's exceptions point out, this casts doubt on whether the presentation to an employee of a union authorization card for signature, in the course of oral solicitation, is an act of "literature distribu- tion," rather than an act of "solicitation" within the meanings of the Board's relevant standards. The distinction is a meaningful one in terms of legal effect. Greater latitude is accorded employees to engage in solicitation activity on plant premises than is accord- ed for the distribution of literature. The latter activity may properly be forbidden in working areas even when engaged in on the employees' free time "because it carries the potential of littering the employer's premises, [and thus] raises a hazard to production whether it occurs on working time or nonworking time." i As above noted, however, solicitation is subject to clearly lawful regulation and restraint by an employer only if the solicitation takes place on the employees' worktime. In this case Farah's testimony plainly reveals that Respondent improperly equates the general "distribution" of authorization cards or organization- al leaflets with the situation where an employee, in the course of oral solicitation, asks another employee to sign an authorization card and submits the card for signature. We note, for example, that Farah explained reprimands administered to employees engaged in organizational efforts in the shipping room as being prompted by the fact that "they [the employees] were actually trying to get people to sign in the working areas where they are not permitted to do any kind of soliciting." (Emphasis supplied.) And, it was admit- tedly in the context of this view of employee rights that Farah told Respondent's vice president to "advise the people they could not distribute cards in working areas at any time." It is true, of course, that as a matter of dictionary definition, a union authorization card, because it is in written form, may be regarded as "literature." But as the Board has had occasion to comment, any analogy which, in terms of legal effect, equates the solicitation of signatures on authorization cards with the distribu- tion of union literature, amounts to an attempt "to exploit a semantic gambit."2 Such an assumption ignores the real distinction between the two types of organization techniques which form the backdrop for the Board's decisional rules in this area. Union literature is aimed at informing employees about union matters and/or propagandizing about the virtues of unionization, and its distribution contem- Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 619 2 See Stoddard-Quirk Manufacturing Co, supra, p 620, fn 6 187 NLRB No. 83 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plates that the material will very probably be discarded by the recipient once the message is read. The purpose of the authorization card, however, is to provide tangible evidence of effective solicitation, and a request that an employee affix his signature to an authorization card really completes the act of solicita- tion. The presentation of an authorization card to an employee for signature in the course of oral solicita- tion is therefore necessarily an integral and important part of the , solicitation process. And the card's delivery to an employee by the solicitor-prompted, as it usually is, by the solicited employee's oral declaration of interest-normally contemplates signa- ture upon receipt and the card's return to the solicitor.3 In light of the foregoing, it follows that Respon- dent's view of its employees' "signing-up" of others as an act of literature distribution has no legal merit and that its maintenance of a rule banning such activity, as well as oral solicitation, in working areas during nonwork time is in violation of Section 8(a)(1) of the Act. We so find, and shall amend the Recommended Order of the Trial Examiner accordingly. 2. We disagree with the Trial Examiner's dismissal of that part of the complaint which alleges Respon- dent maintained an unduly broad no-distribution rule which, as applied to union literature, prohibited employee distribution of such literature on off-duty time during the plant workday in any part of the plant premises. As noted by the Trial Examiner, Farah admitted that Respondent had "always prohibited distribution for any reason, regardless of what the reason is, during working hours.. . ." The Trial Examiner did not, however, find this prohibition to be violative of the Act since, in his view, "there is no evidence that the rule, as expressed by Farah was, either in terms, or substance, ever communicated to any employee." We take a contrary view of the evidentiary facts. As the Trial Examiner's Decision points out, Respondent has never issued any written plant rules. It has, rather, regulated the conduct of its employees through oral rules. As appears from Farah's testimo- ny, information concerning the content and operative scope of its rules is imparted to its supervisors who are charged with the duty of both making the rules' requirements known to employees and enforcing them in the event of breach. Although no employee 9 Wholly distinguishable, of course , is the situation where a union proponent engages in wholesale distribution of union authorization cards 4 Member Fanning would find that such a rule by its mere existence serves as an unlawful restriction on employee rights and consequently, he would find the rule violative of Section 8 (a)(l) of the Act regardless of whether or not it had been actually communicated to employees 5 N L R B v. Harold Miller, et al, 341 F 2d 870, 874 (C A 2), enfg 148 NLRB 1579 fi C.f G C Murphy Company, 171 NLRB No 45 Cf Lexington Metal Products Company, 166 NLRB 878 at 880 was called to testify on this subject, it is reasonable to infer, and we find, that Respondent's rule relating to the distribution of literature was, like its other plant rules, in fact made known to the employees. Such an inference is in our judgment especially valid where, as here, Respondent has chosen to rely upon word of mouth contact between management personnel and employees as the means of communicating its plant rules to employees.4 It cannot be gainsaid that the generalized reference to "working hours" renders the precise scope of the rule ambiguous. But, as has been judicially stated, "the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it."5 Here, the terms of the rule as stated may readily be understood as prohibiting the distribution of union literature by employees on their own time in any part of the plant premises, including nonworking areas, during the course of the working day.6 No justifica- tion for so broad a restriction on the exercise of the employees' organizational rights was claimed or proved. Accordingly, the restriction constitutes an unlawful restraint on employee statutory rights. As the mere maintenance of the rule itself serves to inhibit the employees' engaging in otherwise protect- ed organizational activity,7 the finding of a violation is not precluded by the absence of specific evidence that the rule was invoked as of any particular date against any particular employee.8 For all the foregoing reasons, we conclude that by maintaining an unduly broad no-distribution rule which employees may reasonably construe as prohib- iting the distribution of union literature in nonwork areas during nonwork time, Respondent violated Section 8(a)(1) as alleged.9 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 Respondent, Farah Manufacturing Company, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order, as herein modified: 1. Insert the following in paragraph 1(b) of the " Farah testified that he had advised supervisors to "turn their backs" if they saw employees engaging in union solicitation or distribution activity in nonworking areas He admitted, however , that information about the rules' relaxation for purposes of permitting union activity was never expressly communicated to employees 9 Chairman Miller disagrees with the majority on this issue In his view, the Trial Examiner correctly concluded that the oral no-distribution rule was not communicated to any employees, and finds no basis in the record for any contrary inference Accordingly, he would dismiss this part of the complaint allegation FARAH MANUFACTURING CO. 603 Recommended Order immediately after the words "orally soliciting any other employees": and/or obtaining the signatures of employees on union authorization cards, 2. Substitute the following for paragraph 1(e) of the Recommended Order and reletter paragraph 1(e) accordingly. Maintaining a rule which prohibits employees, when they are on off-duty time, from distributing union literature in nonworking areas. 3. In fn. 57 of the Trial Examiner's Decision substitute "20" for "10" days. 4. Substitute the attached Appendix for the Trial Examiner's Appendix. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in any other manner interfere with any employee's exercise of any such rights. WE WILL NOT maintain a rule which prohibits employees while they are on off-duty time from distributing literature in nonworking areas. The National Labor Relations Board has found that we discriminated against Adan Gonzales by discharging him, in violation of the National Labor Relations Act, because he engaged in union activity, and has ordered us to offer him full reinstatement to his former job, or if that job no longer exists, to a substantially equivalentjob, and to reimburse him for any loss of pay he may have suffered because of such discrimination. WE WILL offer Adan Gonzales such reinstate- ment, and reimburse him for his loss of pay, together with interest thereon, in accordance with the Board's Order. FARAH MANUFACTURING COMPANY (Employer) After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights To engage in self-organization To form, join, or assist any union To bargain collectively through represent- atives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge or otherwise discrimi- nate against any employee because such employee has exercised any of such rights. WE WILL NOT establish, maintain, or apply any rule prohibiting or preventing any employee from orally soliciting any other employee on our premises and/or obtaining the signatures of employees on union authorization cards, during time neither is working nor required to be working, to become or remain a member of, or support, or be active in any union, or from discussing such activity, membership in, or support of any union during such time. WE WILL NOT ask any employee any questions about the exercise of any rights given him by the Act in any manner that might interfere with such exercise. Dated By (Representative) (Title) We will notify immediately the above-named individ- ual if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 and U.S. Courthouse, 500 Gold Avenue, SW., P.O. Box 2146, Albuquerque, New Mexico 87101, Telephone 505 -843-2507. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE HERMAN MARX, Trial Examiner. The issues in this proceeding are whether Farah Manufacturing Company (herein the Respondent or Company) discharged an employee, Adan Gonzales, because of his union activities, thus violating Section 8(a)(1) and (3) of the National Labor Relations Act (herein the Act)'; and whether it violated Section 8(a)(1) of the Act by (1) interrogating employees concerning their union activities, (2) by promulgating, maintaining, and enforcing a rule prohibiting its employees from engaging in "discussion and solicitation for union 1 29 USC 151,etseq 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity," and in "distribution of union literature," at any time on its property, and (3) by promulgating, maintaining, and enforcing a rule prohibiting "nonemployees" (union organizers not in its employ) from engaging in such solicitation and distribution on its property.2 Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (herein the Board) upon all other parties, a hearing on the issues was held before me, as duly designated Trial Examiner, on January 14, 15, and 16, 1970, at El Paso, Texas. All parties appeared through respective counsel, and were afforded a full opportunity to adduce evidence, examine and cross- examine witnesses, submit oral argument, and file briefs.3 Upon the entire record, from my observation of the demeanor of the witnesses, and having read and considered the respective briefs of the General Counsel, the Charging Party, and the Respondent filed with me since the close of the hearing, I make the following findings of fact. FINDINGS OF FACT 1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD The Company is a Texas corporation; maintains its principal office and place of business in El Paso, Texas, where it is engaged in the business of manufacturing and distributing men's trousers and other garments, and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. During "the last calendar year" preceding the issuance of the complaints in this proceeding, the Company, in the course and conduct of its business, sold products valued in excess of $50,000 to customers located outside Texas; shipped the products directly to such customers; purchased products valued in excess of $50,000 from suppliers located outside Texas; and caused such products to be transported and delivered to El Paso, Texas, from locations in other states. By reason of such interstate deliveries, shipments, and purchases, the Company is, and has been at all material times, engaged in interstate commerce, and in operations affecting such commerce, within the meaning of Sections 2(6) and 2(7) of the Act. Accordingly, the Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED The Charging Party in this proceeding, El Paso District Joint Board, Amalgamated Clothing Workers of America, AFL-CIO (herein the Joint Board) is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. As its name indicates, the Joint 2 The allegations of unfair labor practice involved here are contained in two complaints, one issued on November 4, 1969, and based on a charge filed in Case 28-CA-1886 on May 12, 1969, and the other issued on December 18, 1969, and based on a charge filed in Case 28-CA-1977 on October 22, 1969 The two cases were duly consolidated by order of the Regional Director for Region 28 on December 18, 1969 Copies of each charge, each complaint, and the order of consolidation have been duly served upon the Respondent 3 The General Counsel has filed a motion, dated February 25, 1970, to amend the hearing record in specified particulars All other parties have been afforded an opportunity to submit objections or other comment Board is affiliated with Amalgamated Clothing Workers of America, AFL-CIO (herein Amalgamated). III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company operates manufacturing and related facilities at three separate locations in El Paso. One of these, bearing the address 8889 Gateway Boulevard West (and referred to here as the Gateway plant or premises), includes four structures, one of them the plant's communi- cations center, and the others known, respectively, as Building Nos. 1, 2, and 3; and space where employees of the Company park their cars while at work.4 The issues here involve only the Gateway plant and personnel employed there Operations at that plant, as at the Company's other establishments, are subject to overall direction and management by the Company's chief executive, William F. Farah, who is its corporate president. The labor force at the Gateway plant numbers about 3,000 employees (2,999 at the time of the hearing), and has not fluctuated significantly at any time material to the issues. Most of these work in Building No. 1, and are variously engaged there in production or shipping opera- tions. The structure also contains a cafeteria which is used by employees during their lunch periods. Building No. 2 contains repair and maintenance facilities, and Building No. 3 houses a sewing room and another cafeteria. The shipping department, which is located in Building No. 1, has a complement of about 300 employees and nine supervisors. One of the latter, Jose Serna, is the superior of the others, and has overall responsibility for the operation of the department. He has authority to hire and discharge personnel, and is, and has been at all material times, a supervisor within the meaning of Section 2(11) of the Act. Adan Gonzales entered the Company's employ on June 6, 1960, worked in shipping department functions through- out his employment, and was discharged by Serna on October 21, 1969, under circumstances to be described later. During much of his employment, Gonzales worked as one of about 90 shipping department "pullers," that is, employees who "pull" (select) trousers from stock, according to instructions as to size, color, and style, and assemble them for subsequent shipment. For about the last three years of his employment, his "primary job" was to take inventories of stock to be "closed out" (discontinued). In such work, he functioned directly under Serna's supervision. In the customary close-out procedure, Serna would give Gonzales the lot number of the stock in addressed to the motion, but have not done so The motion is granted, and the record is amended in the particulars requested The hearing transcript is garbled in various other respects, but as the record sufficiently reflects the evidence, rulings and issues, I dispense with any correction beyond the particulars set forth in the motion 4 In the course of his testimony. the Company's president, William F Farah, referred to Building Nos I, 2, and 3 as three plants, but the three buildings are integrated facilities related to the production and shipment of the Company's product from the Gateway premises In any event, for convenience of reference, the facilities at the Gateway location are treated here, as at various places in the testimony, as a single plant FARAH MANUFACTURING CO. question, and the latter would then make a count of all the trousers in that number; record the results on "packing slip" forms; and upon completion of the inventory, take the slips to Serna who would make an "assortment" (a determination of the quantities in which the discontinued stock was to be boxed). The inventoried stock would then be pulled from the shelves by various pullers who were detached, as needed, from other pulling chores by their respective supervisors and assigned by them to close-out pulling. The pulled garments would then be packed and shipped by other shipping department personnel. When he was not engaged in taking inventories, Gonzales would join the close-out pullers, sharing their work. One such puller (Guillermo Chavez) testified that Gonzales was a "sort of . .. group leader" in the work, and there are some generalizations in the testimony that he would give the close-out pullers "instructions" as to "what" to pull and "how" to do it, but specifics of these are lacking beyond the fact that he would transmit information as to "what" garments were to be pulled, and instructed a puller, who was newly assigned to close-out pulling, in the work. Gonzales' starting rate in 1960 was $1 an hour, and during the period of some 9 years of employment that followed, he was given 13 wage raises, receiving 2 in some years. His final increase, given about 3 months before his dismissal brought his scale to $2.70 an hour. All of the increases were based solely on merit, and granted upon Serna's recommendation. As Serna conceded in his testimony, Gonzales was "a loyal and good worker over the years." The Company also gave Gonzales eight annual Christ- mas bonuses, starting with one for some $76 in 1961, and increasing in amount each year thereafter, until his final bonus in 1968, amounting to about $329. As Farah testified, Gonzales' work performance was "the most substantial factor" in the management decision to grant these bonuses. B. Gonzales ' Union Activities; the Alleged Interrogation of Employees; and Gonzales' Discharge On August 25, 1969,5 Gonzales telephoned an Amalga- mated (or Joint Board) representative named Antonio Sanchez, and sought his assistance in organizing the Gateway plant employees, telling Sanchez that "a large group of men" wished to organize. Sanchez thereupon invited Gonzales to attend a meeting of the Joint Board at an El Paso hotel on August 28. Gonzales attended, and the upshot was that Sanchez told him, in effect, that if Gateway employees wished to organize, he could arrange a meeting for that purpose at the hotel. Such a meeting was then arranged for September 24, and held on that date, with some 42 employees of the Gateway plant's shipping department, including Gonzales, in attendance. Most of those present came on the initiative of Gonzales, who had visited them at their homes to invite them to the meeting Another meeting was held at the same location on September 30. About 37 Gateway shipping department employees, including Gonzales, attended. Gonzales and 605 Sanchez addressed the meeting, expressing the view, in substance, that it was necessary for the employees to organize, and that they could thereby gain benefits they lacked. All of the Gateway employees present signed "union membership cards," and constituted themselves an "organizing committee," with the aim of unionizing Gateway plant employees. Prior to his discharge some three weeks after this meeting, Gonzales secured signatures of 20 Gateway employees on "union authorization cards." All but 3 or 4 of the cards were signed away from the Gateway premises. Another meeting of Gateway employees (apparently members of the organizing committee), including Gonzales, was held on October 15, under the Joint Board's auspices at a "union hall" in El Paso. Gonzales had notified the others of the meeting, speaking to some at the plant during lunch and rest periods, and others at their homes. The record does not describe what took place at this meeting, but it is evident from surrounding circumstances that its purpose was to discuss organization of the Gateway plant employees. On the following day, October 16, Serna approached Gonzales at work, took him to a place among the stock shelves in the shipping department for a private conversa- tion, and told him: "Now that we are alone and nobody can hear us, I want you to be man enough to tell me if it is true what they just told me that you are not satisfied with your salary, that you are not happy with your job." Gonzales replied that he was "happy" and that Serna's information was incorrect, and asked Serna where he had secured his contrary information. Serna said that he was not "going to get that man (his informant) involved in this," and that he wished that Gonzales tell him if the information was correct. Gonzales repeated his denial. Serna thereupon produced a "little card," listing all the wage increases Gonzales had received over the years, and said that Gonzales had recently received an increase to $2.70 an hour, and had not been omitted from "any of the raises" given the Company's employees, and that the management was planning to pay him more money the following year. Then, stating that he and Gonzales were friends, Serna asked Gonzales whether there were "any problems that you want to tell us," and, receiving a negative reply, told Gonzales that if he had "any problem" to discuss with Farah or the Company's vice president, William Conroy, an appointment would be made with either without question as to his purpose. Gonzales replied that he had nothing to say to either, and Serna then remarked, "Well, what do you want, everybody to earn as much as you are earning?" During the course of the conversation, which lasted about 15 minutes, Serna also described benefits the Company provided for Gonzales as an employee, including free medical care for himself and family; referred to Gonzales' "big family," coupling this to a query whether Gonzales had "anything to tell us"; and stated, "We are going to have to work together because if you start pulling to one side and we start pulling the other, we are not going to get along right." On the following morning, while Gonzales was at Serna's 5 Unless otherwise indicated, all dates mentioned below occurred in 1969 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desk on an errand, Serna told Gonzales that he thought that there "was something wrong" with Gonzales, that he sensed that Gonzales had "something to tell" him, and that Gonzales was "not working as usual; and asked the latter "if there was anything" he wished to tell him. Gonzales replied in the negative, and asked Serna, "What do you mean, what is wrong?" Serna responded, "Oh, nothing, that's all right." On a number of additional occasions that day, when Gonzales' duties took him to Serna's desk, Serna asked Gonzales whether the latter had "something to tell" him, and Gonzales replied that there was "nothing." 6 About quitting time that same day, Serna interrogated another shipping department employee, Luis Alvarez, in a vein much like that of the interrogation of Gonzales. Alvarez was a member of the Union's organizing commit- tee, having attended some of the meetings previously described, including the one on September 30, when the committee was formed. On the occasion in question, Serna summoned Alvarez to a place among the stock shelves in the shipping department; told Alvarez that he "looked real demoralized and run down"; and asked Alvarez "what was the problem," stating that he "would help out." Alvarez replied that he "was all right," and that "there weren't any problems at all." Serna then said that it could not be "the work" that was troubling Alvarez "because the work was slow," and that "there must be something else bothering" Alvarez; and asked the latter whether he "would ... like to tell (Serna) about it." Alvarez reiterated that he was "all right." The conversation, which lasted some 10 to 15 minutes, continued to follow substantially the same course, Serna repeatedly making substantially the same inquiries of Alvarez as those described above.7 On the morning of October 20, a shipping department supervisor, Norman Ekery, who did not supervise Gonzales and was subordinate to Serna, approached Gonzales at work and asked him if anything was "wrong." Gonzales asked for the reason for the inquiry, and Ekery said, in substance, that it seemed to him that Gonzales was not doing his work "as usual," and that not enough close-out stock had been pulled. Gonzales in effect expressed a contrary view, supporting it with a reference to the volume of recently pulled garments. About an hour later, Ekery summoned Gonzales to his desk, and displaying a sheet with some figures on it, and mentioning a figure (not set forth in the record), told Gonzales that "(t)hey are after me in the office because you didn't pull enough Friday" (October 17). Ekery did not hand the paper to Gonzales, but placed it on his desk, and, so far as appears, nothing more passed between them. Later that day, Serna gave Gonzales a close-out 6 Findings as to the conversations between Serna and Gonzales on October 16 and 17, described above, are based on uncontradicted testimony by Gonzales r Findings as to the conversation between Alvarez and Serna are based on Alvarez' undisputed testimony 8 There is also some conflict whether Lopez worked with Gonzales on the inventory (although there is no dispute that both were members of a group that did close-out pulling in the week or two preceding Gonzales' discharge) According to Serna, "only" Gonzales took inventories in the month preceding the latter's discharge, and in a prehearing statement he gave a representative of the General Counsel, Gonzales said that he and Serna were "the only two who did this work " Gonzales, who testified that inventory assignment , and the latter worked at it with another puller, George Lopez. The time of the assignment is in dispute, Gonzales testifying that it was about 3 p.m., and Serna that it was about noon.8 There is conflict, too, as to Serna's remarks in discharging Gonzales on the following day, October 21. Gonzales testified that at about 9 a.m. that day, while he was at work with Lopez on the inventory task assigned the previous day, Serna called him on the plant telephone, and asked him what he was doing; that he said he was taking inventory, whereupon Serna told him to come to his desk, and bring his inventory papers with him; and that he came to Serna's desk, where the latter told him that "we've had a lot of trouble with you in the office," that the "office" was after him because Gonzales "did not pull enough," and that he was therefore discharging Gonzales. Serna agrees that he had a talk with Gonzales on the occasion of the discharge, although claiming that it occurred at about 10 a.m., and his version is that he summoned Gonzales and asked him if he had completed the inventory assigned the day before; that receiving a negative reply, he told Gonzales that he had been at the task for seven or eight hours, whereas it should have taken two and a half or three hours; and that Gonzales said that the time he had taken was "the best" he could do, to which Serna replied, "If that is the best you can do, I have no alternative but to let you go." In Serna's version, that was the end of the conversation. Passing the conflicting testimony for later resolution, there is no dispute that upon conclusion of the conversa- tion, Serna escorted Gonzales to the timeclock, punching out for the employee, and then to the office where a clerk processed Gonzales' termination records and pay. The General Counsel, pointing to Gonzales' many years of employment, the high regard in which Serna held his work over the years, the many merit increases and bonuses given Gonzales, the absence of any prior warning of dismissal, and his role as a union activist, maintains that Gonzales was discharged for union activity. The Respondent, on the other hand, stressing a disclaimer by Serna of any knowledge of such activity by Gonzales prior to the dismissal, maintains that there is no evidence that the management had such knowledge; and, judging by Serna's version of his remarks in discharging Gonzales, claims that Gonzales was discharged because Serna was dissatisfied with the time Gonzales was taking with an inventory task assigned on October 20, and with Gonzales' reply, when criticized for the alleged time lag, that he was doing his best. The Respondent also produced from its files a document described by Serna as Gonzales' "production record" for 1969. It contains various entries other pullers "would help" him make inventories, and that Lopez had worked with him on the occasion in question, explained that what he meant by the preheating statement was that he was the only one who took the inventory results to Serna Serna supervised other supervisors, and through them, hundreds of shipping department employees, and it is plausible that one or another of the many pullers in the department who were shifted about from one task to another, as needed, would on occasion, without Serna's knowledge, work with Gonzales in making an inventory Notwithstanding the prehearing statement, bearing in mind that there is no dispute that Lopez worked with Gonzales in close-out pulling over a period of a week or two before the discharge, I find credible Gonzales' testimony that Lopez helped him with the inventory in question FARAH MANUFACTURING CO. attributing errors or other performance shortcomings to Gonzales in the course of the year The entries, and the effect to be given to them, will be discussed at a later point. As the Tenth Circuit has pointed out, admission by an employer that he has discharged an employee for union activity is rare, and, thus, such discrimination "must .. , usually be proved by circumstantial evidence" (N.L.R.B. v. Betts Baking Co., 380 F.2d 199, 204). And it is well established, too, that management knowledge of an employee's union activity need not be established by direct evidence, but may be inferred from surrounding circumstances.9 Such circumstances are both present and compelling here. Gonzales played a primary role in bringing about the union organizational meetings that took place within a few weeks preceding the discharge. Most of some 42 employees who attended the September 24 meeting came on his initiative, and at least some of these formed themselves into an "organizing committee" of substantial size at the September 30 meeting, which was addressed by Gonzales who urged those present to organize to secure additional employment benefits. And it is noteworthy that the start of Serna's repetitive queries of Gonzales whether he had anything to tell the management came on the day following the union meeting of October 15, that Gonzales had given advance information about the meeting to employees at the plant; and that Serna prefaced his private interrogation of Gonzales on October 16 with a disclosure that an informant had told him that Gonzales was dissatisfied with his wages and his work. It matters not that Serna did not use the word "union," or any derivative of the term, or any synonym for it, in his discussions with Gonzales, if reason correctly translates his repetitive acts of interrogation as an inquisition into Gonzales' union activities and interests. Serna's testimony contains no explanation of the purpose of his queries (in fact, he does not even refer to his discussions with Gonzales on October 16 and 17), but, against the background of Gonzales' antecedent union activities, a key to Serna's objective is provided by his inquiry of Gonzales in the October 16 discussion: "Well, what do you want, everybody to earn as much as you are earning?" The statement, notably the reference to "everybody," makes no sense in its particular context except as a veiled or implied allusion to union wage standards. The remark was preceded by references by Serna to the wage increases Gonzales had received and came on the heels of Serna's unsuccessful efforts to induce Gonzales to open up to the management with "any problem" Gonzales had, following hard upon Gonzales' rejection of Serna's somewhat singular proposal that Gonzales, who was but one of thousands of employees in the Gateway plant, discuss such a "problem," at Gonzales' convenience ("anytime" he wished), with the 9 See, for example, N L R B v Schell Steel Products, Inc, 340 F 2d 568, 572 (C A 5), A J Krajewski Mfg Co v NLRB, 413 F 2d 673, 676 (C A I) '. The very fact that Serna made repetitive efforts to induce Gonzales to open up to the management regarding his union activities, going so far as to propose that Gonzales discuss them at his convenience with Farah or Conroy, not only warrants a conclusion that the management attached substantial importance to them, but adds weight to Gonzales' account of them Approaching his description of such activities with the caution one should exercise in evaluating an alleged discriminatee's claims in such 607 Company's president or vice president; and it appears to me that the remark, taking the form of a rhetorical query, was an argumentative rebuke to Gonzales for promoting unionization. Summarizing the matter, I construe Serna's disclosure to Gonzales on October 16 that he had learned from an informant that Gonzales was dissatisfied with his wages and work as an intimation that an informant had told him that Gonzales was interested in unionization; and am convinced, and find, that Serna's queries of Gonzales on October 16 and 17 whether the latter had any "problem" or "anything" to tell him or Farah or Conroy were aimed at eliciting information from Gonzales regarding his union activities and interests. It follows from this that I do not credit Serna's disclaimer of any knowledge of union activity by Gonzales, concluding, on the contrary, that Serna knew or believed, prior to the discharge, that Gonzales was a union activist. to If Gonzales was discharged because the management regarded him as a proponent of unionization, the end result is the same whether the reason given Gonzales, as the latter testified, was that the "office" was "after" Serna because Gonzales was not pulling enough, or whether the discharge conversation took the course described by Serna, focusing, according to the sense of Serna's testimony, on an alleged time lag in an inventory begun by Gonzales the day before. In either version, the reason given Gonzales is thin. Serna's account would lead one to believe that he discharged Gonzales immediately after the latter said that he was doing the best he could with the inventory assignment. But there is no evidence that Gonzales' manner was insolent or otherwise offensive, or that he had been loafing (Serna's claim as to the time that the inventory should have taken is hardly proof that Gonzales had been wasting time, for conceivably, he could have met some impediment for which he was not to blame), and, in the absence of such evidence, it burdens one's credulity to believe that Serna would thus discharge Gonzales, despite his many years of meritorious service, without at least making some inquiry of him whether there was a reason why he had been unable to make better time. What is more, the Respondent's case is singularly lacking in hard evidence either as to the proportions of the inventory task in question or the impact of his pace in performing it on the output of any other pullers or of any packing or shipping employees. Although the Respondent admittedly has a record of "exactly" how many garments were involved in the relevant inventory count, it was not produced, nor does Serna mention the quantity in his testimony.ti (According to Gonzales, the inventory in- volved about 15,000 pairs of trousers.) To be sure, Gonzales' "production record" for 1969 (which sets forth production figures for relatively few weeks matters, 1 am convinced of the credibility of Gonzales' account of his union activities, and have made corresponding findings that he engaged in them " While it is not of critical importance whether the discharge came at about 9 a in. as Gonzales claims, or 10 a m , as Serna testified, it may be noted that although Serna punched Gonzales' time card after the discharge, the Respondent did not produce the card, which could, perhaps, shed some light on the issue, and provide some approximate measure at least for the amount of time Gonzales had spent on the inventory on October 21 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the year, and none for any material period) contains an entry made by Serna, which states: "Very low production for no. of men he has pulling 10-20," but the entry does not, with clarity at least, support Serna's version of the discharge conversation. Gonzales denies that Serna said anything about delay in his inventory work, quoting Serna, instead, as saying that the "office" was "after" him because Gonzales had an insufficient pulling volume, and that he was thus discharging him.12 The nub of the matter is that the entry, in terms at least, says nothing about an inventory (in contrast, it may be noted, to an entry for October 18), and that its sense is in the vein of Gonzales' version of the discharge conversation, rather than in that of Serna's account, to the extent that it speaks of an inadequate pulling volume. It would be stretching matters to construe the entry as meaning that lagging inventory work had held up the pulling volume of other close-out pullers; for, in the first place, that is not what the entry says, and, in the second, there is no evidence that any of the close-out pullers were waiting on the inventory, or that their time was not fully occupied with pulling close-outs already inventoried In the light of what has been said, I am persuaded that the alleged criticism of Gonzales for lagging in the inventory assignment is an afterthought; and do not credit Serna's account of his remarks in discharging Gonzales, finding, instead, that the discussion took substantially the course described by Gonzales. The reason for dismissal given Gonzales, reflected in his credited version of the discussion, is no less a pretext, in my judgment, than the one reflected in Serna's rejected version. The purported reason given Gonzales has some ambiguity in the light of other aspects of the record, for its literal meaning is that the "office" was critical of Gonzales' production volume, whereas the thrust of the entry for October 20, and of emphasis the Respondent places upon Gonzales' relationship to six other close-out pullers with whom he pulled garments in the last week or two of his employment, is that he was to blame for a deficient pulling volume by the group. In either interpretation, the purported reason has a tenuous air. For one thing, there is no hard evidence such as the volume of garments pulled, or packing or shipping records, comparative or otherwise, to support any claim of deficient productivity, whether of Gonzales alone or of the group. The Respondent's failure to produce information as to the pulling volume, a matter peculiarly within its knowledge, weighs against acceptance of the reason given Gonzales for his dismissal, and correspondingly enhances the credibility of testimony of four of the other pullers (Jose Villagran, Manuel Bonilla, George Lopez and Guillermo Chavez), all still in the Company's employ, to the effect that those engaged in close-out pulling during the period in question performed a "usual" amount of work.13 For another matter, as regards the alleged responsibility of Gonzales for the output of the group, there is, in fact, no evidence that it was his function to prod them, or that he, rather than their supervisors, had the responsibility for setting their pulling pace. The characterization of Gonzales as a "sort of ... group leader" by one of them, his instruction of another who was newly assigned to close-out pulling (and who, by the way, was also instructed in his duties by Villagran), and his transmission of information to other close-out pullers as to the garments to be pulled will not serve as such evidence, nor will generalizations that it was Gonzales' function to instruct pullers as to "what" garments to pull, and "how" to do it, suffice. Gonzales testified that between inventory assignments, he "help[ed]" with the close-out pulling, and Serna himself stated that Gonzales' "primaryjob" was to take inventories, and that when he was not so engaged, he "would help" with the close-out pulling. And, according to Villagran, in close- out pulling, Gonzales "did the same work as the others." The record leads me to conclude that the "instructions" Gonzales gave other pullers were routine, consisting of such functions as showing a novice how and what to do in pulling close-outs, and transmitting information to other pullers as to the garments to be pulled; that apart from such routine tasks, his function between inventories was to do the same work as the other close-out pullers; and that it was not his function to direct the working pace of such pullers, or otherwise to oversee their work.i4 Reaching that conclusion, and taking into account the testimony of the four pullers regarding their output, and the failure of the Respondent to present any figures concerning the pulling output either of the group in question or of Gonzales individually, I am unable to give any effective weight to the selfserving "production record" entry for October 20 as evidence of a lawful motive for the discharge. I take much the same view of Supervisor Ekery's comment to Gonzales on the morning of October 20 to the effect that there appeared to be something "wrong" with Gonzales because he was "not working as usual"; and of Ekery's statement to Gonzales later that morning that the "office" was "after" Ekery because Gonzales had not pulled enough on the preceding Friday, October 17. The record contains no figures to support this claim; there is not even an entry, adverse or otherwise, for October 17 in Gonzales' "production record"; 15 and, more to the point, 12 Gonzales describes the conversation both on direct and cross- examination The version on direct examination does not depict Serna as giving any reason for the termination, quoting him , instead , as saying, we've had a lot of trouble with you in the office, they're after me because I'm going to have to let you go" The use of "because" in that context is unintelligible, and the transcript at that point appears to be garbled I am satisfied that the thrust of Gonzales' relevant testimony, particularly as evidenced by his version under cross -examination, is that Serna said that the "office " was "after" him because Gonzales was not pulling in sufficient volume, and that he was discharging Gonzales for that reason is where the party on whom rests the burden of evidence as to a particular fact has the evidence within his control and withholds it, the presumption is that such evidence is against his interest and insistence N L R B v Ohio Calcium Co, 133 F 2d 721, 727 (C A 6) See, also, 2 Wigmore § 285, and N L R B v Wallick, 198 F 2d 477, 483 (C A 3) i4 The Respondent, it may be noted , makes no claim that Gonzales was a supervisor within the meaning of Section 2 ( 11) of the Act, thus indicating that it does not view the "instructions" he gave other pullers as responsible direction of their work , requiring, in the language of Section 2(11), "the use of independent judgment" 15 Although the Respondent's brief, by intimation, rather than by express assertion , views Ekery's comments as supporting its position that Gonzales was discharged for lawful cause , it did not call Ekery as a witness Ekery's remarks to Gonzales are quoted by the latter on his direct FARAH MANUFACTURING CO. Serna, who says that he alone made the discharge decision, makes no claim that he discharged Gonzales for a deficient pulling volume on October 17 (or, for that matter, on any other date), whether that of Gonzales as an individual, or of any close-out pulling group.16 In both its evidence and its brief, the Respondent stresses Gonzales' 1969 "production record" not only for its entry for October 20, but for other entries made by Serna for October. In all, the document contains seven entries by him, imputing errors or other performance deficiencies to Gonzales. The first notes a failure "to mark card" (not elaborated) on May 22, and the remaining six fall within a three-week period preceding the discharge, beginning with an entry "wrong lot #" for October 2; and followed by "wrong total" for October 7; then by "wrong sizes" for October 10; next by "not pulling enough" for October 14; then by "2 inventorys (sic) wrong" for October 18; and finally by the entry for October 20, previously mentioned.17 Although the Respondent does not say so in so many words, the thrust of its emphasis on the "production record" is that the October entries serve as proof of a lawful motive for the discharge. The claim is unpersuasive, quite apart from the self serving nature of the entries, and the fact that the document contains only one adverse entry by Serna in the nine months of 1969 prior to October, while the remaining six made by him all fall within a three-week period substantially coincident with the period between the union meeting of September 30, when the organizing committee was formed, and the discharge. Gonzales concedes that Serna brought errors in his work to his attention on some seven or eight occasions during the period, but, without furnishing details, he describes the errors as "small" (stating, without contradiction, that he in turn corrected Serna on many occasions when the latter made mistakes such as errors in adding figures, and in lot numbers and colors). The description takes on supporting weight from the fact that Serna, notwithstanding Gonzales' admission, gave repeated testimony to the effect that in the month preceding the discharge, he did not discuss with Gonzales any errors or other shortcomings in the latter's work, although contradicting himself later with testimony that he discussed each of the October entries with Gonzales.is In any case, it is a fact that Serna's testimony turns up no claim that any of the errors or performance shortcomings witness Ekery's remarks to Gonzales are quoted by the latter on his direct examination by the General Counsel ie The General Counsel and the Union do not expressly argue that Ekery's remarks regarding the "office" attitude toward Gonzales' pulling volume were cut from the same pretextual cloth as the reason given Gonzales in discharging him, but that, by implication, appears to be their position I see no need to pass on it in view of the fact that Serna makes no claim in his testimony that he discharged Gonzales because of a deficient pulling volume, although, as found above, that was the reason he gave Gonzales in discharging him i7 The "production record" also contains two "wrong color" entries for January, and one attributing "very bad" pulling and an "aggressive" attitude toward another person by Gonzales on July 9 The entries were not made by Serna I dispense with further reference to them as it is clear that the Respondent makes no claim that they had any connection with the discharge is Serna gave the following testimony on direct examination before he identified the "production record " Q (By Mr Duke) Prior to Mr Gonzales' discharge, did you have 609 he imputes to Gonzales in the "production record" was a factor in the discharge. What Serna says in effect, through his version of the discharge conversation, is that he discharged Gonzales because of dissatisfaction with Gonzales' reply, when criticized, that he was doing his best. Moreover, Gonzales' "production record," so far from negating a discriminatory motive for the dismissal, taken in conjunction with the 1969 "production records" of some other shipping department employees, adds weight to a conclusion that the reason given Gonzales for his discharge was a pretext. The "production record" for one (Francisco Apodoca) contains 13 adverse entries. That for another (Rodriquez Arroyo) sets forth nine. That for a third (Heineman Alonzo) contains eight. And that for a fourth (George Hadana) contains about a dozen. The Respondent offers no explanation why these, each with a substantial number of adverse entries, are still in the Company's employ in contrast to the peremptory discharge of Gonzales who had given the Company good service for almost a decade, and won from it the many commendations implicit in the numerous merit increases and bonuses given him over the years. The sum of the matter is that the entries in Gonzales' "production record," and the alleged errors and shortcom- ings they set forth, had no connection with the discharge, and the very fact that the Company invokes the document to justify the dismissal bolsters a conclusion that it is endeavoring to conceal an unlawful motive. The reason is to be found in Gonzales' union activities. The record does not establish which of these had come to the Company's attention, nor when it began to regard Gonzales as a union activist, but Serna, who claims it was he who made the discharge decision, was uncandid in his denial of any knowledge of any union activity by Gonzales, and, from what has been said, it is clear that by October 16, at least, Serna knew or believed that Gonzales had become a proponent of union organization. Moreover, the course and tenor of Serna's repeated, although veiled, efforts, notably on October 16, to induce Gonzales to talk about his union activities amply warrant an inference that the Company attached much importance, and was hostile, to union organization, and was disposed to bring substantial pressure to bear on Gonzales to supply it with information regarding the organizational movement under way at the Gateway plant. one or more occasions to talk to Mr Gonzales about his work' A (By Jose Serna) Yes, sir, several times Q Let's just go back, let's take a month again, let's say the month prior to his discharge, could you estimate how many times that you recall talking to Mr Gonzales about his work' A Are you referring about his asking any kind of a question' Q No, the quality of his work A No, none at all Q In other words, is it your testimony that during that period, say, a month prior to his discharge, that you did not discuss with him any mistakes or otherwise pertaining to his work' A 1 don't believe so, sir Q You did not discuss it with him' A I don't think so Later in his direct examination , Serna was shown the "production record," and testified that he discussed "every one " of his entries with Gonzales on the day it was made 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The pressure is evident. Serna is no minor figure at the plant, but obviously of substantial rank in the supervisory hierarchy, directing the work of nine supervisors and about 300 employees. He was pointedly secretive in choosing a private setting for the inquisition of October 16, and highly repetitive in his efforts to induce Gonzales to open up regarding his union activities. These circumstances are of themselves persuasive indications that the management attached substantial significance to information it had received, as Serna told Gonzales, that the latter was dissatisfied with his job and wages or, in other words, as I infer from the context of circumstances, that he had turned to union organization. But any doubt about the matter, if any remains, is dissipated by the fact that Serna went so far as to attempt to persuade Gonzales to discuss "any problem" (a veiled reference to his union activities) with the highest echelon of the Gateway plant's management (Farah or Conroy) at his own convenience; and resorted to coercive carrot-and-stick methods to implement the inquisition. Thus, in the course of the private conversation of October 16, Serna said that the management was planning to give Gonzales a wage increase the following year; harnessed a reference to Gonzales' "big family" to a query whether he had "anything to tell us"; and sounded a note of menace with a statement that "(W)e are going to have to work together because if you start pulling to one side and we start pulling the other, we are not going to get along right." Viewing the whole record, notably Gonzales' many years of meritorious service, his activist role in promoting union organization among the employees, the course and tenor of Serna's inquisition into Gonzales' organizational activities and interests, the timing of the discharge, coming as it did in the midst of the union organizational campaign among the employees, and only a few days after Serna's fruitless repetitive attempts to induce Gonzales to open up to the management regarding his union activities and interests, the peremptory nature of the discharge, and the indications that the Company has resorted to pretext and afterthought to justify it, I find that the Company discharged Gonzales because it believed him to be a proponent of union organization; and that by the dismissal it violated Section 8(a)(3) of the Act, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute. Although the General Counsel's claim of unlawful interrogation involves only two employees, Gonzales and Alvarez, I am unable to pin a de minimis label on the conduct in question. Serna's interrogation of Gonzales on October 16 was plainly coercive and, like the discharge, which came soon thereafter, was an expression of the Company's hostility to union organizational activity. In fact, Serna's remarks on October 16 included a veiled threat of discrimination against Gonzales if he persisted in union activity. This, in my judgment, in the context of the discussion as a whole, was the thrust of Serna's statement that "if you (Gonzales) start pulling to one side and we start pulling the other, we are not going to get along right." One may reasonably expect, moreover, that Serna's high supervisory status would give added force to his conduct. Taking the factors I have mentioned into account, I find that Serna's conduct in interrogating Gonzales on October 16 and 17, aimed, as found above, at eliciting information from Gonzales regarding his union activities and interests, the Company interfered with, restrained, and coerced employees in the exercise of their Section 7 rights, and thus violated Section 8(a)(1) of the Act. As for the interrogation of Alvarez by Serna on October 17, it is true that Serna did not use the word "union," nor any derivative of the term or synonym for it, but that was the case in the interrogation of Gonzales earlier that day, and on the day before; and, as in Gonzales' case, one should interpret Serna's meaning in the light of the whole relevant record. Alvarez, like Gonzales, was a member of the union organizing committee, having joined it at the time of the committee's formation little more than 2 weeks before the episode in question. The interrogation of Alvarez appears to have been less intensive than that of Gonzales, but it was nevertheless repetitive, "going over and over" its subject matter for some 10 or 15 minutes, according to Alvarez' uncontradicted testimony, and was similar in basic respects to the interrogation of Gonzales. In the course of his discussion with each, Serna took a line with each to the effect that something was amiss with the employee, and, notwithstanding assurances by each that nothing was wrong, continued to urge each to tell him what the problems were. The substantially similar interrogative courses taken by Serna with Gonzales and Alvarez within a period of a day or so points to a common purpose, and that view is enhanced by the absence of any evidence that there was anything wrong with Gonzales or Alvarez (the latter, on the contrary, testifying credibly that there was nothing wrong with his health to his knowledge, or that he was disturbed in any way). The Respondent offers no explanation of what led Serna to take the line that something was wrong with Alvarez, nor of Serna's reason for insisting, after Alvarez' assurance that he had no "problems," that "it's not the work . .. there must be something else bothering you," and then repeatedly soliciting Alvarez to "tell (him) about it." Serna's testimony is altogether silent about the episode. In the absence of such an explanation, the substantially common interrogative pattern in Serna's discussions with both members of the organizing committee warrants a conclusion that he had a common purpose in interrogating each, and I find that the purpose in Alvarez' case, as in that of Gonzales, was to induce the employee to open up to Serna with information regarding his union organizational activities and interests. Thus I find that as a result of Serna's conduct in interrogating Alvarez as to the latter's "problems" and what was "bothering" him, the Company interfered with the exercise of Section 7 rights of employees, and thereby violated Section 8(a)(1) of the Act. C. The Alleged Rules Prohibiting Discussion, Solicitation and Distribution by Employees Farah gave testimony to the effect that by unwritten rule the Company forbids its employees to solicit other employees for any purpose "at any time ," including rest and lunch periods , in all "working areas" on the premises; FARAH MANUFACTURING CO. that this prohibition has been in effect throughout the Company's existence, and communicated by supervisory personnel to the employees; that, with certain exceptions (to be described later), all of Building Nos. 1, 2, and 3 are "working areas", and that the employees stationed in these buildings have a 12-minute rest period each morning, during which they are free to move about in or outside their respective "working areas," but forbidden to enter any other "working area," even if the employees in such other area are also on their rest period. He defined "nonworking areas" as the parking lots on the Gateway premises, the cafeterias in Building Nos. I and 3, and a "center corridor" in Building No. 1, which is some 500 feet long, and contains time clocks used by about 2300 employees, and a corridor (of unspecified dimensions) in Building No. 3, but he also testified that he has regarded the corridor in Building No. I as a "nonworking area" for the purposes of union solicitation only since October 22, 1969, when he received a telegram from Amalgamated setting forth a partial list of the organizing committee's membership, that he did not inform any employees of this modification; and that the employees were never told of any right to solicit on the Gateway premises, but that during the lunch period on October 22, employees distributed union authorization cards in the corridor of Building No. 1, and have done so there "frequently" since that date, without interference from the Company.19 I find, on the basis of Farah's testimony, that at all times material to the issues here, the Company had in effect at the Gateway plant (1) an unwritten rule forbidding all solicitation, including that in the interest of union organization, by employees at all times, including rest and lunch periods, in the "working areas" of Building Nos. 1, 2, and 3, as set forth in Farah's testimony described above; 20 and (2) another unwritten rule denying employees access to all "working areas" other than their own during rest periods in effect for them and for those stationed in such other "areas", 21 and that both rules have been communicated to employees at the Gateway plant. It has been long established that "a broad rule banning (oral union solicitation by employees) during nonworking time is presumptively invalid." 22 That presumption plainly applies to the prohibition of oral solicitation during lunch and rest periods in the so-called "working areas" of the Gateway plant, as Farah describes them. It applies, too, to the rule prohibiting employees from entering "working areas" other than their own during their rest periods and those of the employees in the other "areas," for, as is evident, the prohibition has the effect of reducing 19 However, according to Farah, he heard that on one occasion his mother took some authorization cards from an employee who was passing them out in the corridor, but promptly returned them at the suggestion of the Company's counsel, who happened to be in the vicinity at the time Apart from its hearsay character, this testimony adds nothing of substance to the case, and I base no findings on it 20 At one point, Farah testified that all of the Gateway premises constitute a "working area," but it is evident from his testimony as a whole that for the purposes of the relevant issues here, he did not intend by his generalization to designate the cafeterias, the two corridors and the parking lots as "working areas " it is clear, moreover, that the locations he defines as "working areas" retain that status in the Company's view even during the times, such as lunch and rest periods, when work is temporarily suspended in them 611 opportunities of the employees not only to solicit the interest of others in unionization but even to discuss any union subject in the plant on their free time. As the rules tend to interfere with oral communication regarding unionization among employees on their own time, it is immaterial whether they are specifically designed to achieve such a result, although it is worth noting that, according to Farah, several days after employees had distributed union authorization cards in the shipping department on October 22, before the start of the workday and during rest periods, as well as during working time, on that date, the management "stopped" further distribution of such cards, and the related solicitation of signatures, in the department because these activities had taken place "in the working areas where they are not permitted to do any kind of soliciting"; 23 and that about a week or two after the receipt of the telegram from the Union, Farah, as he testified, having heard that three employees had been distributing union authorization cards in "working areas" (other than their own, according to the sense of his testimony), told them that "they could not go into other areas to distribute" the cards.24 The presumption has not been rebutted in the case of either rule, for there is no evidence that either is necessary to maintain productivity or plant discipline. In fact, Farah, although offering the justification for the no-solicitation rule that the management has a policy of not permitting anyone to "impose" (himself) on anyone else for any purpose," offers no reason for the rule forbidding employees to enter "working areas" other than their own during the time when they, as well as the employees in the other locations, are on rest periods. Nor is either rule redeemed by the fact that employees are not prohibited from moving about freely during lunch and rest periods in "nonworking areas," as defined by Farah, or from discussing or soliciting interest in unionization in such locations during free time ; or that the management has tolerated union solicitation in the center corridor of Building No. 1 since October 22.25 The right of an employee to solicit the interest of another in union organization, or otherwise discuss it with him, during the free time of both does not turn on the coincidence that both happen to be in what Farah defines as a "nonworking area," and that view is made the more compelling by the fact that the management has not expressly informed the employees of the locations in the plant where they may permissibly engage in such activities. In summary, both rules are unreasonably broad in that they unnecessarily restrict employees in the use of their free 21 It does not appear whether during the midday lunch period uniformly in effect for them, employees are denied access to "working areas" other than their own, and I thus make no finding on that subject 22 Stoddard-Quirk Mfg Co, 138 NLRB 615, 616-617, and cases cited 21 Characterizations by Farah of the solicitation and distribution of the cards as 'interfering" with others, and as "disruptive ," were stricken as conclusions The record contains no demonstration that such activities prior to work or during rest periods (or for that matter, at any other time) actually interfered with productivity or discipline 24 It does not appear whether the three employees were on their free time when they distributed the cards. 25 N L R B v United Aircraft Corporation, 324 F 2d 128 (C A 2); National Steel Corporation v N LR B, 415 F 2d 1231, 1234 (C A 6) 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time for oral promotion of, or opposition to, union organization; and both thus interfere with the free exercise of rights guaranteed employees by Section 7 of the Act. Hence I find that by promulgating and maintaining each rule, the Company has violated, and is violating, Section 8(a)(1) of the Act.26 I reach a different result, however, on the allegations that the Company unlawfully prohibits the distribution of union literature by its employees. For reasons set forth by the Board in Stoddard. Quirk Mfg. Co., 138 NLRB 615, no- distribution and no-solicitation rules are respectively governed by different principles. Under Stoddard-Quirk and subsequent cases, a nondiscriminatory rule forbidding employees to distribute union literature during their free time in "working areas" of a plant is not presumptively invalid, whereas one banning distribution by employees on their own time in "nonworking areas" is presumptively unlawful.27 The evidence of a no-distribution rule applicable to employees is relatively scant. Putting aside the prohibition of the distribution of authorization cards in the shipping department, substantially all that there is in the record on the existence of such a rule is testimony by Farah that the Company has "always prohibited distribution ... during working hours." 28 This generalization neither expresses an unlawful rule nor warrants a presumption of invalidity. It serves no purpose to say that the rule is vague in that it does not expressly exclude "nonworking areas" of the plant, and that an employee could reasonably take "working hours" to mean the workday, including its lunch and rest periods, rather than actual working time,29 for there is no evidence that the rule, as expressed by Farah, was, either in terms or substance, ever communicated to any employee. Such evidence is not supplied by the fact that late in October the Company "stopped" employees from further distribution of cards in the shipping department. The record does not establish the terms in which the prohibition was expressed on that occasion; and, moreover, the term "nonworking areas," as used in Stoddard-Quirk, refers to sites in a plant where work is not customarily performed (such as, for example, cafeterias and parking areas), and thus assuming, without deciding, that the cards may be classified as union literature, the relevant prohibition did not amount to a ban on distribution in a "nonworking area." 30 In short, the 26 It would neither add to, nor detract from, the recommended remedy here to determine whether the failure to notify the employees that they may now solicit for union purposes during free time in the center corridor of Building No I has had the effect, so far as the employees are concerned, of continuing the previously unlawful prohibition for the corridor 21 E G , National Steel Corporation v N L R B, 415 F 2d 1231, 1233 (C A 6), Laidlaw Corporation v. N LR B, 414 F 2d 99, 103, 107 (C A 7) IN There is much in the record dealing with rules governing "access" to the plant, and the distribution of literature there, by "nonemployees," but that phase of the case , dealing with another issue, should not be confused with the question whether the Company maintains an invalid no- distribution rule for employees 29 Compare Alkaline Battery Division of ESB, Inc v N L R B, F 2d (C A 4), decided March 26, 1970 30 The dissent in Stoddard-Quirk (at pp 628-629) viewed the majority decision there as apparently holding that "union authorization and membership cards" are "union literature," and that an employer may ban the distribution of such cards by employees in "working areas" in their free time Whether such a construction of the majority's views is correct need record does not establish the existence of an unlawful no- distribution rule for employees at the Gateway plant. D. The Alleged No-Solicitation and No-Distribution Rules Applicable to Nonemployees The Company has had in effect for many years an unwritten policy of prohibiting nonemployees from solicit- ing or distributing literature to employees in the Gateway plant. And as will appear in more detail later, it has refused to permit representatives of Amalgamated, the internation- al labor body with which the Joint Board is affiliated, to distribute union literature on the Gateway premises. The General Counsel and the Charging Party maintain that the exclusion was unlawful, and the Respondent asserts the contrary. A description of various features of the plant, including its entrance and exit areas, and of some data pertaining to its labor force, is a necessary preliminary to a resolution of the issue. The plant is situated on a roughly rectangular plot of land owned by the Company, and is surrounded by a fence about seven or eight feet high, with gate facilities for entering and leaving the premises. The parking facilities provided by the Company are entirely within the fenced area. On the south, the Company's property line runs parallel to Gateway Boulevard West, which is a three-lane, one-way street for westbound traffic, and runs parallel to a freeway, Interstate 10, to which it provides access at some distance from the plant. The nearest street to the west of the premises is Hawkins Boulevard, and the north side parallels Viscount Boulevard. The east side abuts vacant land. Two of the gates, known as the Main and East Gates, face Gateway Boulevard West; a third, the West Gate, faces Hawkins Boulevard, and the fourth, the North Gate, faces Viscount Boulevard.31 A driveway some 35 feet in length (Resp. Exh. 3) leads from the Main Gate to Gateway Boulevard West which has a posted speed limit of 45 miles per hour. The plant's communications center is located inside the fence near the Main Gate, and serves as the headquarters of the plant's uniformed security force, whose duties include the direction of traffic through the various gates.32 The Main Gate is usually open from 6 a.m. to 6:30 p.m. for both inbound and outbound traffic, and can accommodate two lanes of cars. There is no stop sign along the driveway or at its not be decided here, nor is it necessary to determine whether the prohibition of distribution of authorization cards in the shipping department amounted to a ban on the distribution of literature To do so, would neither validate the rule forbidding oral solicitation by employees on their free time in "working areas," nor establish the existence of a rule forbidding distribution of literature by employees in "nonworking areas " 91 In the interest of consistency, I identify the East, Main, West and North Gates by those names in making findings, although they are respectively also called Gates 1, 2, 3, and 4 in the examination and testimony of some witnesses 12 The General Counsel and the Charging Party make a point of the fact that the guards carry side arms, and that the fence is topped by barbed wire The point has more color than materiality There is no evidence that the purpose of the side arms and barbed wire is to discourage union activity rather than to protect the security of the premises, and one would think it plain that if the Company has a right to forbid nonemployees to solicit employees or distribute literature to them on its premises, the right is not diminished by the presence of the barbed wire and the armed security force FARAH MANUFACTURING CO. intersection with Gateway Boulevard West, and departing traffic must turn in one direction (west) on that street. The East Gate is connected with Gateway Boulevard West by a driveway of some 20 feet in length, can accommodate two lanes of traffic, is open from about 6:30 to 7:30 in the morning, and again from about 3:30 to 5:30 in the afternoon, but is used only for outbound traffic. There is no stop sign along the driveway or at its intersection with Gateway Boulevard West, and outbound traffic must turn west into Gateway Boulevard West. The West Gate is connected with Hawkins Boulevard, which is a four-lane divided highway, by a street known as Farah Road, which for a distance of some 20 or 25 feet between the Company's property line and the point where the road meets Hawkins Boulevard is public property. The gate is located some distance inside the plant premises, but nothing visibly indicates which portion of Farah Road between the gate and Hawkins Boulevard is private property and which is public. The gate is open for inbound traffic between 6 and 7:30 a.m., and for both inbound and outbound traffic between 11:30 a.m. and 12.35 p.m., and between 3:30 and 5:30 p.m. Farah Road can accommodate three lanes of traffic. There is a stop sign for outbound traffic on the street near its point of intersection with Hawkins Boulevard which has a posted speed limit of 40 miles per hour The North Gate is connected to Viscount Boulevard, which is a four-lane divided highway, by a driveway. The Gateway facilities along the driveway actually consist of two gates, one about 25 feet from the street, and the other about 300 feet farther inside the property. Both gates are used only for outbound traffic, and are both open from 6:30 to 7.30 a m.; 11.30 a.m. to 12:40 p.m.; and 3:30 to 5:30 p.m.33 There is no stop sign for the intersection of the driveway with Viscount Boulevard Many, if not most, of the Gateway plant's force of about 3,000 employees are of Mexican ancestry, and most speak both Spanish and English, but all (with one possible exception) are American citizens. Some 2,583 (86 percent) of the employees reside in El Paso, which is adjacent to the border with Mexico, has an area of about 117 square miles, and a population of about 350,000. While some of the El Paso employees reside in substantially separated areas of the city, a majority of them are concentrated in several neighboring postal zip code areas situated along the border with Mexico (Resp. Exh. 12). About 231 of the labor force (between 7 and 8 percent) reside in the neighboring Mexican city of Juarez, which has a population of approximately 470,000. The balance, some 185 (about 6 33 Findings as to the times the northern exit area is used are based on Conroy's testimony, which differs somewhat regarding the subject from Farah's Conroy appears to me to be more familiar with the matter 34 Findings as to the number who travel by private automobile and by company-operated bus are based on Farah's estimates, which are not in material dispute A census (Resp Exh II) of entering and departing automobiles, buses, and the "occupants" of both types of vehicles, made on January 12. 1970, several days before the hearing, during periods embracing those when employees customarily arrive and leave, broadly tends to support Farah's estimates, but is no more definitive, since the count covered more extensive periods during the day than those in which the employees generally arrive and leave, and did not distinguish between automobiles carrying employees and those conveying others, and between 613 percent), reside on American soil outside the El Paso city limits, all but one within a distance of 30 miles of the plant. A large majority of the employees, about 2,700, go to and from the plant by private automobile, and most of the cars thus used are parked during the workday on the Gateway premises. Except for a relatively few, the rest of the employees, numbering about 300, arrive and leave on buses operated by the Company for that purpose. The buses, at least some of which serve the Company's other El Paso plants, travel prescribed routes and make scheduled stops. The vast majority of the labor force leave the plant premises between 4:10 p.m. and 6 p.m. using one or the other of the four gates, all of which are open for all or most of that period.34 The evidence of the refusal to permit the distribution of union literature in the Gateway plant's parking area may be briefly summarized . What occurred, in matenal substance, was that on March 13, 1969, Antonio Pena, "international representative" of Amalgamated, accompanied by some other organizers on its staff, went successively to the plant's West and Main Gates, and to its office; on each occasion identified himself by name and connection with Amalga- mated to a member of the plant's security force or other representative of the management ; and requested permis- sion for himself and his companions to distribute leaflets in the parking area on the plant premises; and that in each instance the guard or other representative of the Company refused to grant such permission.35 Pena 's requests, as I infer, were not only made on behalf of Amalgamated, but on that of its affiliated Joint Board as part of a joint enterprise by both to organize the Gateway employees. On April 10, 1969, Pena, as international representative of Amalgamated, wrote a letter on Joint Board stationery, addressed to Farah at the plant, requesting permission for union representatives "to distribute in an orderly manner our union literature to your employees" (on the Gateway plant premises, according to the sense of the letter). Farah received the letter, but has not replied to it.36 The general test by which to measure the legality of the Company's rejection of Pena's requests of March 13 is set forth in N L.R.B. v. Babcock & Wilcox, 351 U.S. 105, 112-113, where the Supreme Court, striking a balance between the right of an employer to use his property and the statutory right of employees to self-organization which may depend on their ability "to learn (its) advantages .. . from others," held, in material substance, that an employer may not bar distribution of literature on his property by nonemployee union organizers if he does so on a discriminatory basis, or his employees are "beyond the reach of reasonable union efforts to communicate with employee and nonemployee occupants 35 1 have omitted various details of what passed between Pena and those to whom he spoke at the plant , as they add nothing of material substance to the case 36 In the letter , Pena states that an effort had been made by "organizers representing the Amalgamated to make a distribution of union literature at your plant gates," and that guards at the gates rejected a request for an "opportunity to make such distribution " This, of course, is not probative evidence of what occurred on March 13, but I note, in addition, that in his testimony, Pena describes no request for leave to distribute `at the plant gates " The requests he made , according to his account, were to distribute leaflets in the parking area 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them" elsewhere. The rejection of Pena's requests was not discriminatory, and thus the relevant issue is whether the Gateway employees are beyond the reach of reasonable efforts by Amalgamated or the Joint Board to communi- cate with them outside the plant. Obviously, in applying the test here, the burden of proving that the Gateway labor force cannot be reached by such efforts rests with the General Counsel. I hold for reasons that follow that the burden has not been met. The General Counsel and the Charging Party maintain that reasonable efforts have been made to communicate union information to the employees by leaflet distribution outside the gates on October 28 and November 5, 1969; and that the episodes demonstrate that such a method is ineffective and hazardous, and, correspondingly, illustrate the need for distribution in the plant's parking area. The sole evidence of the distribution episodes is contained in the testimony of two Amalgamated organizers, Guadalupe Carrillo and Sophie Gonzales, both called by the Union, but their testimony falls short of establishing that distribution outside the gates is not a reasonable alternative to distribution in the Company's parking area. According to Miss Carrillo, on October 28, beginning about 4 p.m. (shortly before the start of the departure period for most of the employees), and "until all of the cars left," and stationing herself outside the West Gate in the center of Farah Road near its intersection with Hawkins Boulevard, she attempted to distribute leaflets to inbound and outbound traffic, engaging in the activity without any interference from the security force or other plant personnel.37 Characterizing the task as "too difficult because it was too dangerous," she says that she distributed about 50 or 60 leaflets on that occasion. She also testified that stationing herself in the driveway outside of the North Gate on or about November 5, she distributed about the same number over a period of about 20 minutes. In this area, too, according to her, "it was very difficult to distribute any literature because I was much in danger," and she testified that a bus "hit" her while she was in the area. Her testimony is not a reliable guide to the feasibility of distribution near the plant gates. In the first place, she admittedly distributed at the North Gate on November 5 for only about 20 minutes. It does not appear what time she arrived there. According to her account, she came to the West Gate first, at about 4 p.m., remained there for an unspecified period, and then proceeded to the North Gate 37 According to Miss Carrillo, she had stationed herself a little earlier close to the West Gate (apparently within the Company's property line), but a plant guard came by and told her to leave, stating that she was in "a private zone," and cautioning her to be careful of traffic She then took up the station closer to Hawkins Boulevard , and engaged in distribution activity there without any interference The fact that there is no visible indication of division in Farah Road and the other driveways between the Company's property line and public property adds nothing of substance to this case If the refusal to permit distribution inside the plant premises was lawful, the absence of any visible indication of the Company's property line in the driveways is immaterial , at least in the absence of any evidence that Amalgamated or the Joint Board has sought, and been denied, information as to the location of the line, and been materially hampered by the lack of it in distribution outside the gates There is no such evidence 38 The traffic census of January 12, 1970, which counted 706 vehicles outbound through the North Gate between 3 30 and 6 p in provides no material help in determining the traffic volume during the 20-minute (which is a substantial distance from the West Gate). The departure period for day shift employees begins at 4:10 p.m. and continues until about 6 p.m. The nub of the matter is that even if one could approximate the time Miss Carrillo arrived at the North Gate at, say, about 4:30 p.m., the record does not establish in what volume traffic came through the gate in the 20 minutes she distributed there.38 Second, her claim that a bus "hit" her is simply untrue. She subsequently receded from the claim with testimony that "the bus comes by pretty fast and there is a small, narrow sidewalk and the bus was coming by and it came close to that sidewalk and I had to jump." From this it would appear that she was not in the driveway at the time of the alleged episode, but, in any case, at a subsequent point, when interrogation focused on whether the bus had "actually hit" her, she said that she had been hit "only with the air, the force of the air, then I jumped." This, like the untrue testimony that the bus "hit" her, appears to me to be a puffed makeweight for her claim that distribution outside the North and West Gates was a dangerous enterprise 39 Moreover, in evaluating the claim, it should be remembered that there is a stop sign on Farah Road at its intersection with Hawkins Boulevard, so that outbound cars carrying employees after the day's work must stop before entering Hawkins Boulevard; that inbound traffic running north on Hawkins must make a right turn into Farah Road, while inbound traffic running south along Hawkins must make a left turn at a median point in that street opposite Farah Road, and cross the northbound Hawkins traffic lanes before entering Farah Road to approach the West Gate; that thus, entering Farah Road from either direction on Hawkins Boulevard, inbound traffic would, in the normal course, very likely move at a slow pace past the point where Miss Carrillo says she was stationed, especially during a period such as the one in question when there is likely to be substantial inbound, as well as outbound, traffic; 40 and that departing traffic at the North Gate must make a right turn into Viscount Boulevard, and thus would normally be moving at a slow rate at least immediately before starting the turn. In sum, while common sense tells us that a person distributing leaflets at driveway locations where Miss Carrillo says she was stationed would have to have due regard to the traffic conditions present, the physical characteristics of the two areas do not of themselves establish that it is dangerous to distribute from either location, and because of the earmarks of exaggeration in her testimony on the subject, I am unable to attach any period Miss Carrillo says she was at the gate 39 Although Miss Carrillo is not proficient in the use of English, her claim that she was "hit" was not the product of inadvertence She testified in Spanish through a qualified interpreter called by the Joint Board She is an experienced union organizer, having worked for Amalgamated in that capacity for several years, there is no indication that she did not understand all questions put to her, as rendered in Spanish, and her claim that she was "hit" came in response to an uncomplicated question whether she had been "hit by any car " It is noteworthy that she made a point of saying that it did not occur the "first time" she distributed literature, but on the second occasion 40 Miss Carrillo does not estimate the number of inbound or outbound vehicles that passed her station on Farah Road, but it may be noted that the census of vehicles that passed through the West Gate between 3 30 p in and 6 p in on January 12, 1970 counted 370 outbound and 148 inbound vehicles FARAH MANUFACTURING CO. weight to her testimony that she found it "too dangerous," or that she was in "much danger," at either location , or that she was "hit," whether by "the force of the air" from a bus or otherwise.41 Third, although she concedes that at the time of her November 5 distribution near the North Gate, others were distributing leaflets for Amalgamated outside the Main and East Gates, neither the General Counsel nor the Charging Party offered any evidence as to the distribution results at either the Main or East Gates, nor gave any explanation of the reason for the omission. Much the same can be said for the October 28 distribution on Farah Road outside the West Gate. Concededly, while she was engaged in distribution at that location two people, whom she identified by name, stood at the stop sign distributing leaflets for Amalgamated to occupants of outbound cars as they "were stopping"; yet neither of the two distributors was called, and the record is barren of the results of their distribution. To a point made by the General Counsel to the effect that distributors stationed at the stop sign would not be on the left, or driver's, side of outbound vehicles, it is enough to say that that still does not prove their distribution volume, and that the omission takes on added importance from testimony by Miss Carrillo that "many" of the windows on the right side of such departing cars were open, while "some of them were closed." 42 Miss Gonzales' testimony reinforces a conclusion that the evidence offered as to the feasibility of leaflet distribution in significant volume outside the gates is at best inconclu- sive. She gave testimony to the effect that accompanied by two other union representatives (one of them Antonio Sanchez), she stationed herself for leaflet distribution outside the Main Gate, on October 28,43 at 4:10 p.m., when "a shift . . comes out," but that only one or two cars entered, and two left, through the gate during some 20 minutes; that at about 4:30 p.m., after leaving a supply of leaflets with her two companions for distribution at the Main Gate, she took up a position on the curb lining the driveway outside the East Gate (which, like the Main Gate, as previously noted, faces Gateway Boulevard West); that during a period of "about half an hour till all the people came out," she distributed leaflets to "maybe 75 or 100" outbound cars out of some "400 or 500" cars that came through the East Gate, moving principally in two lanes, over a period of about a half hour starting at 5.10 p.m., 44 and that contemporaneously there were three or four persons (including Miss Carrillo, as I infer from her 41 Compare General Dynamics, 137 NLRB 1725, 1728, where the Board held that in the circumstances presented, the existence of heavy traffic entering a private street leading to plant gates , and some difficulty in distributing to the occupants of the cars proceeding on the street toward the gates, did not give rise to a right in a union to distribute on an employer's property inside the gates 42 1 find no weight in a claim in the General Counsel's brief to the effect that "the north side" of Farah Road (that is, the side on which the stop sign is located) "is steeply angled beginning with the curb and offers little or no standing room " As support for the position, he cites a photograph (G C Exh 20), but it was taken from such a distance and angle as to show almost nothing of Farah Road located beyond an intervening hill shown in the picture Another photograph (Resp Exh 8) far more accurately shows that there is ample level ground along the "north side" of Farah Road leading to the stop sign, and certainly more than enough on which to stand inside the curb line near the point where cars would generally stop before turning into Hawkins Boulevard 615 testimony) distributing Amalgamated leaflets outside the West Gate, and at least one at the North Gate. The record does not explain why only two cars would exit through the Main Gate for some 20 minutes after the exodus of homeward bound employees began, in contrast to the West Gate, through which, judging by Miss Carrillo's testimony, a substantial volume of outbound vehicles passed during much the same period . In any case, Miss Gonzales' testimony, like that of Miss Carrillo, demon- strates the unexplained failure of the General Counsel and the Charging Party to produce distribution figures that could be meaningful . The testimony of both witnesses, taken as a whole, would lead one to believe that during the period of departure of most of the labor force from the plant by car, the two distributed a total of some 125 to 160 leaflets during substantially the same period on October 28 to occupants of outbound vehicles. But, according to Miss Gonzales, there was a total of seven or eight (including the two she left at the Main Gate) who either distributed leaflets, or had them available for distribution, at the various gates on that date. The record contains no evidence as to the distribution results of the five or six other union representatives who were stationed with leaflets outside the plant gates on October 28. The nub of the matter is that in the absence of such evidence it would be no more than a guess to say that Amalgamated or the Joint Board must gain admission to the plant's parking lot in order to distribute union leaflets to a meaningful number of the employees, and the guess is made all the more hazardous by the paucity of reliable evidence concerning the results of distribution on Novem- ber 5. The importance of the failure to produce the evidence in question is underlined by General Dynamics, 137 NLRB 1725, where the Board (at p. 1728), in upholding an employer's right to prohibit distribution of literature on its property by a union, gave as a consideration that the labor organization "got a handbill in almost every fourth car" outside two of five plant entrances where distribution occurred, doing so in traffic conditions that made distribution somewhat difficult. Moreover, the fact that approximately 300 of the Gateway labor force of some 3,000 travel to and from work at the plant by company-operated buses does not make a case for compelling the Company to permit distribution on its premises by nonemployee union personnel.45 I agree with the General Counsel and the Charging Party that 43 I infer that the date was October 28 from Miss Gonzales' testimony that her leaflet distribution occurred on a Tuesday in the last week in October I note, also, in passing , that she refers at a number of places in her testimony to Gateway Boulevard West, as "the freeway," whereas it is Interstate 10 which is a freeway Gateway Boulevard West runs parallel to Interstate 10 for substantially more than the length of the plant , joining the freeway at some distance from it 44 The estimate of 400 or 500 outbound cars through the East Gate during the period specified is substantially in excess of the number, 330, that passed through the gate between 3 30 and 6 p in on January 12, 1970, according to the census taken that day 45 The approximation of the number who use the buses is based on Farah's uncontradicted estimate that some 2,700 employees come and go by private automobile, and about "300 plus" by bus The census of January 12, 1970 counted 10 inbound buses with 361 occupants in the "morning," and 12 outbound buses with 525 occupants in the "afternoon," but at least some of the buses stop at the Company 's other El Paso plants, (Continued) 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distribution at the bus stops away from the plant is not reasonably feasible 46 That conclusion is amply supported by the evidence that 11 buses transport homeward bound Gateway employees in the late afternoon, making a combined total of approximately 170 stops; and that in the morning, about the same number of buses, with a combined total of about 200 stops, many at different locations than on the afternoon routes, transport Gateway employees to work.47 Pena testified credibly that he does not know the bus itineraries (it does not appear that any effort has been made to ascertain them), but even if it be assumed that diligent inquiry (for example, of the large number of employees on the Joint Board's Gateway plant organizing committee) would yield meaningful information about the bus stops and schedules, and taking into account the fact that some of the stops are duplicated in various of the itineraries, so that one distributor could reach the occupants of more than one bus at given locations, the task of reaching a substantial undertaking, with the distinct possibility that many of those given handbills would not be employees of the Gateway plant, but of another of the Company's El Paso facilities. But concluding, as I do, that it is unreasonable to expect Amalgamated or the Joint Board to make an effort to distribute union literature to the bus-riding employees at their bus stops, I do not read Babcock & Wilcox as vesting in either organization a right to distribute on the plant premises simply because such a relatively small minority of the labor force is not reasonably accessible for distribution elsewhere. As is evident, employees in a plant have a common interest in their working conditions, and it is reasonable to expect that if a substantial number of them receive communications, as by leaflet distribution, promis- ing improvement in working conditions through union organization , the message will soon spread to others in the number of the employees at the bus stops would be a formidable work force, the number of these very likely increasing with the number who receive the message in the first instance . Thus if the vast majority of the Gateway employees, those who come and go by automobile, are reasonably accessible for leaflet distribution outside the plant gates-a matter that cannot be determined here because of deficiencies in the evidence on the subject-it appears to me that such accessibility accomplishes a sufficient accommodation between the statutory right of self-organization given employees and the right of the employer to the use of his property. What is more, distribution of literature by nonemployees, and the record does not establish how many of the occupants were Gateway employees, nor how many were en route from or to the other establishments , nor whether all the buses arnved or left during the customary arrival or departure periods of the employees 46 However, I find unimpressive, and unsupported by probative evidence, Pena's opinion, based on hearsay, that bus-riding employees "would be afraid" to accept leaflets at bus stops away from the plant because the vehicles are operated by off-duty policemen The buses are thus operated , but no employee testified to such fear , and, what is more, it does not rationally appear why an employee would be more "afraid" to receive a leaflet upon alighting at a bus stop away from the plant than to receive one in the parking area or other bus-boarding site on the plant premises, where he might be observed by a guard , as well as a bus driver 41 The bus itineraries appear in G C Exh I I In his brief, the General Counsel mistakenly lists 18 afternoon buses , with a combined total of 325 stops From the exhibit , it is apparent that only I I of the afternoon buses whether in the plant or outside the gates or at bus stops, by no means exhausts the available channels of communica- tion with the employees. The point is that El Paso has two daily English-language newspapers, one (El Paso Times) with a circulation of about 58,000, and the other (El Paso Herald Post) with a circulation of some 43,000, and a Spanish-language daily (El Continental, printed in Juarez, but circulated only in El Paso), with a circulation of about 8,000; 48 that three Spanish-language daily newspapers (two printed in Juarez, and the third in El Paso), one with a circulation of 15,000, another with 28,000, and the third with 8,000, are published for circulation in Juarez; and that Amalgamated and the Joint Board have admittedly not used any public communications media in the El Paso area to communicate with the Gateway employees. Pena offered the explanation that the organizations did not know "which (of the media) to use," and that the expense "would be prohibitive." The latter is mere characterization without supporting weight, for there is no evidence of the advertising cost in any of the media, nor of the resources of either Amalgamated or the Joint Board 49 Pena admittedly has not looked into the cost of advertise- ment in the El Paso newspapers (although testifying, without specifying results, that on some occasion he checked the cost of advertising in Juarez newspapers, and over radio stations there). The other claim also provides no justification for requiring the Company to make its property available for distribution by nonemployees. The implication of the claim, made evident in the briefs of both the General Counsel and Charging Party, is that there are so many communications media in the El Paso-Juarez area as to preclude a rational choice among them as an effective means of reaching the Gateway plant's employees. It is true that according to an exhibit (G.C. Exh. 27), there are six "newspapers" (five in English) published for circulation in El Paso, three television stations there (including one with a weekly I-hour program in Spanish), and eight radio stations in the city (without Spanish language advertising or programs); and that there are three Spanish-language newspapers published for circulation in Juarez, and one television and nine radio stations there. But this statistical abundance proves far less than the General Counsel and the Charging Party see in it. As a starting point in that regard, three of the five El Paso English-language publications are plainly not newspapers of general stop at the Gateway plant (about half stopping also at one or both of the other plants), and that combined stops after departure from the Gateway premises total about 170 48 The exhibit (G C Exh 27) listing public communications media in El Paso and Juarez does not specifically say that the El Paso Times and El Paso Herald Post are dailies of general circulation in El Paso , but it is common knowledge in that area that they are, and I take official notice, based on such knowledge, that they are the only two English language dailies of general circulation in the El Paso area See , also, N W Ayer & Son's Directory of Newspapers and Periodicals (1969 edition, published by N W Ayer & Son, Inc, West Washington Sq, Philadelphia, Pa ) 49 As Pena's characterization of the cost as "prohibitive" is not entitled to weight in any case, I see no need to measure its credibility in the light of the commonly known fact that Amalgamated is one of America 's major nationwide labor organizations FARAH MANUFACTURING CO. 617 circulation, and the fact is that there are only two English- language dailies in El Paso.50 Advertisers in substantial urban population areas often have a choice among many media, yet make the choice; and the fact that there are a substantial number of television and radio stations in the El Paso-Juarez area appears to me to be an insubstantial justification for not using either one or both of the English- language dailies, and one or more of the Spanish-language newspapers in the area to reach those among the employees, whether resident in Juarez or not, who read the Spanish-language press. In the absence of such efforts, how can one predict, with reasonable certainty, that paid insertions containing material such as statements of union positions, advertisement of union meetings, and clippings to be completed by the reading employee with his name and address and returned by him to Amalgamated, would not have a reasonably effective organizational impact on the Gateway labor force? One would think that the best way to determine the efficacy of such an effort is to make it. A Judgment without it, on the basis of this record, is nothing but a guess. In reaching this conclusion, I am fully mindful of Solo Cup Co, 172 NLRB No. 110,51 where the Board, in passing on the legality of the exclusion of nonemployee organizers from a plant located in a Chicago industrial park, and the validity of the enforcement of a no-distribution rule there, noted that because of wide dispersion of the employees' homes in Chicago and "surrounding towns," it "would be virtually impossible for the Union, without a list of addresses, . to meet the Solo employees away from the plant premises and convey its message"; and that "additionally ... in view of the number of different newspapers, radio and television stations operating in Chicago and the surrounding areas, the Union would have a problem in any event deciding on the appropriate stations or newspapers, and would not be able to reach the employees effectively with its message through such media "52 The situation is materially different here. For one thing, unlike the case in Solo Cup, it has not been demonstrated here that effective distribution outside the plant gates is not reasonably feasible. For another, El Paso, in which all but a relatively small minority of the Gateway employees reside, has about one-tenth of Chicago's population of some 3,500,000 (not to speak of the population of the "surrounding towns" in the vicinity of Chicago); and is about half the size of Chicago in area.53 Obviously, El Paso's considerably smaller population and area materially reduce the "problem" of communicating with the Gateway employees away from the plant. On that score, this case is far' more analogous to General Dynamics, supra, which involved a plant in Rochester, New York, a city roughly the size of El Paso; and where the Board, in holding (at p. 1728) that the employees were reasonably accessible to a union elsewhere than in the plant, made a point of the fact that the union "did not avail itself of other channels of communication such as newspapers, radio and television." That point is particularly apt here, for a large proportion of the Gateway employees are of the same Spanish-speaking ethnic stock, and it is reasonable to expect that the message of one or more suitable advertisements by Amalgamated or the Joint Board in even one of the Spanish-language dailies in the El Paso-Juarez area would come to the attention of a substantial number of the Spanish-speaking employees (including some of the relatively small number of residents in Juarez), and spread from them to others. It may be more convenient and less expensive for those seeking to organize the employees to use the Company's property for that purpose than to attempt to reach them elsewhere, and, needless to say, one cannot fault them for seeking to pursue an organizational method that seems more efficient and economical to them; but the test for compelling an employer to open his property to nonem- ployee union organizers is not whether admission to the plant would spare them motion and expense, but whether they can reach the employees elsewhere through the use of reasonable efforts. The record, in sum, does not establish that the Gateway employees are beyond the reach of such efforts, nor that the rule barring solicitation or distribution by nonemployees on the Gateway premises has been discriminatorily applied; and thus I shall recommend dismissal of the allegations that the Respondent violated the Act "by promulgating, maintaining, and enforcing a rule prohibiting solicitation for union activity and distribution of union literature on its property by nonemployees." IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. so One of the other three English-language "newspapers." judging by its name, The Sun Shopper, appears to be a shopping publication While it has a circulation of 60 ,000, the record does not establish the frequency of publication , nor whether its circulation is paid or free (as is commonly known is often the case, at least in part , with such publications) The other two are The Interpreter, with a circulation of 10,500, and, according to the record , published "for (the) Negro market", and The Labor Advocate, with a circulation of 3,000 The record does not establish the frequency of issue of either of these publications 51 Enforcement denied March 11, 1970, 73 LRRM 2789 (C A 7) on grounds not material here 52 With due deference to the Board , it is fairly arguable that its observations in Solo Cup about the problem of reaching the employees away from the plant were unnecessary to the end results in the case, for it later went on to say that whether or not a rule of the employer excluding union organizers was in itself invalid, the rule of exclusion, and the enforcement of a no-distribution rule, were unlawful because they were discriminatorily designed for, and enforced solely against, the union involved, and that, in addition, upon the analogy of Amalgamated Food Employees Union v Logan Valley Plaza, 389 U S 911, where the Supreme Court sustained a right of peaceful picketing and distribution of union literature by nonemployees in a privately owned shopping center, the employer similarly could not deny union organizers access to the industrial park for distribution of literature 51 On the basis of The Columbia Encyclopedia (3rd ed 1963), 1 take official notice that Chicago has a population of over 3,500,000, and an area of more than 200 square miles, and that the Chicago metropolitan area has a population in excess of 6,000,000, and covers about 460 square miles 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY conclusions of law, and upon the entire record in this proceeding, I recommend that Farah Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of its employees in El Paso District Joint Board , Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization, by discharging any employee, or in any other manner discriminating against any employee with respect to such employee's hire , tenure of employment , or any term and condition of employment. (b) Promulgating, maintaining, enforcing, or applying at or on its premises known as the Gateway plant in El Paso, Texas, any directive, regulation or rule which in terms or effect prohibits or prevents any of its employees , during times when they are not at work or required to be at work, from orally soliciting any other employees , during any times when such other employees are not at work or required to be at work , to become members of any labor organization or to engage in any activity in, or on behalf of, any such organization ; or prohibits or prevents any employees, during times when they are thus free, from discussing any matters pertaining to activity, interest, support of, or membership in any labor organization, with any other employees who are also not at work or required to be at work. (c) Interrogating any of its employees as to any employee's activities, membership or interest in, support of, or adherence to, any labor organization, in a manner constituting interference, restraint or coercion in violation of Section 8(a)(1) of the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization ; to form, join, or assist any labor organiza- tion ; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative actions which , I find, will effectuate the policies of the Act: (a) Offer Adan Gonzales immediate and full reinstate- ment to his former position, or if it no longer exists to a substantially equivalent position, without prejudice to his seniority and other rights and privileges , as provided in Section V, above, entitled "The Remedy," and make him whole according to the formula and method prescribed in said Section V. (b) Preserve until compliance with any order for reinstatement or back pay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board or its agents, upon request, for examination and copying, all payroll records, social security records, timecards and personnel records, which may be relevant to a determination of the amount of back pay due, and to the reinstatement and related rights provided by such order. 55 In accordance with the Board's past interpretation , the expression "former or a substantially equivalent , position" is intended to mean "former position whereever possible, but if such position is no longer in existence, then to a substantially equivalent position " Chase National Bank of New York, 65 LRRM 827 Having found that the Respondent has engaged in unfair labor practices violative of Sections 8(a)(1) and 8(a)(3) of the Act, I shall recommend below that it cease and desist from the unfair labor practices found and take certain affirmative actions designed to effectuate the policies of the Act In view of the nature and extent of the unfair labor practices committed, and in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend an order below which will in effect require the Respondent to refrain in the future from abridging any of the rights guaranteed employees by Section 7.54 Having found that the Company discriminatorily dis- charged Adan Gonzales on October 21, 1969, in violation of Section 8(a)(1) and (3) of the Act, I shall recommend below that the Company offer him immediate and full reinstatement to his former, or a substantially equivalent, position,-55 without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his said discharge from the date of such discharge to the date on which he is offered reinstatement, as aforesaid, together with interest thereon as provided below; and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and include interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co, 138 NLRB 716. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in the proceeding, I make the following conclusions of law: 1. The Company is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. The Joint Board is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act 3. By discriminatorily discharging Adan Gonzales, as found above, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and 54 a discriminatory discharge of an employee because of his union affiliations goes to the very heart of the Act N L R B v Entwistle Manufacturing Co, 120 F 2d 532, 536 (C A 4) See also May Department Stores v N L R B, 326 U S 326, Bethlehem Steel Company v NLRB, 120F2d641 (CADC) FARAH MANUFACTURING CO (c) Notify Adan Gonzales, in the event that he is now serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (d) Post in conspicuous places at the Company's Gateway plant in El Paso, Texas, including all places there where notices to employees are customarily posted, copies of the notice attached hereto. Copies of the said notice, to be furnished by the Regional Director of Region 28 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Company, be 16 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 10248 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 the United States Court of Appeals, the words in the notice reading "Posted by Order of the 619 posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notice is not covered, altered, or defaced by any other material.56 (e) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this copy of a decision, what steps the Respondent has taken to comply therewith.57 IT IS ALSO RECOMMENDED that the complaints be dismissed to the extent that they allege that the Company engaged in any unfair labor practices not expressly found above. 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 " sr In the event that this recommended order is adopted by the Board, paragraph 2(e) thereof shall be modified to read "Notify the Regional Director, in writing, within 10 days from the date of this order, what steps the Respondent has taken to comply therewith "