Hicks-Ponder Co.

HICKS-PONDER COMPANY Hicks-Ponder Company and Southern California Joint Board of Amalgamated Clothing Workers of America, AFL-CIO Hicks-Ponder Company and Southern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, Petitioner. Cases 28-CA-1575 and 28-RC-1639 January 9, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 12, 1968, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner except as herein modified. 1. The Trial Etaminer found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by engaging in surveillance2 of union meetings; by interrogating employees concerning union activities; by soliciting employees to withdraw their union authorization cards; and by emphasizing the futility of bargaining in a series of speeches to its employees.3 'The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3). We find no such basis for disturbing the Trial Examiner's credibility findings in this case. 'Respondent maintained a log that contained unusual events occurring in the plant including matters pertaining to union activity. In finding that the maintenance of the log violated Section 8(a)(1) in that it was designed to inhibit Section 7 rights of employees, the Trial Examiner inferred that the log, if produced, would disclose evidence unfavorable to Respondent including the identity of those persons engaged in union activity and all such events and conversations As the record is silent with respect to the specific contents thereof, we find no basis for inferring Respondent's purpose in maintaining such a log Under these circumstances, we conclude that Respondent did not violate 8(a)(l) by maintaining said log. 'Without relying on the next to last paragraph in sec III, E (including 51 With regard to the speeches, employee Jaime testified that the employees were told that they should return their union cards because even if the Union came in the Company would not negotiate with them; that the benefits would remain the same, 11. . . there would be no more money . and benefits"; that "when the Union asked for something that they were going to say no, no"; and "that there wasn't any Union who didn't make strikes." Employee Javier testified that the employees were told that "this Union can just ask, ask, ask, and we can refuse no"; and that "... the Union if it did win that all then we'd have ... some representative to speak for us, that we would not be free to speak for ourselves, that somebody would do the talking for us, this is all we would gain." Employee Montana testified that the employees were told that ". . . if there was strikes, that they would replace the girls"; "that there would be violence and fighting among the girls themselves"; that ". . . the company itself did not have to agree to anything. That they would just say no and no and no to everything"; . that the company did not have to agree to anything or negotiate with them"; "that they would say no, just to everything, that they didn't have to agree to nothing," " . . . that we already had what we wanted that any other benefits we weren't going to get"; "that the Union wouldn't do anybody any good if it went in there, because they wouldn't agree to anything ...."; that ".. . where there was a Union, that there usually was strikes"; ". . . that the Unions would usually cause strikes whether the employees wanted them or not . . . ."; and "' .. that the girls were on strike, they would replace them." Employee Sanchez testified that the employees were told ". . . that the company didn't have to negotiate with the Union if they didn't want to, and they were going to say no, and whatever the Union said, they were going to say no"; ". . that whatever was going to happen they would have to go on strike"; and "that when they went on strike they would have to be replaced." Employee Granio testified that the employees, were told the Company was not going to deal with the Union; ". . that now we were getting two weeks vacation, the Union came in we were only going to get one week"; and ". . . that we were going to be in some difficulties and fighting, that we didn't have before if the Union got in . ." Employee Rodriguez testified that the employees were told that ". . . if the Union came in, there would be a strike, because there would also be people fighting, and they would be fighting among the people who signed the cards, and the people who didn't sign the the cases cited in fn. 48) of the Trial Examiner's Decision and the various characterizations made by the Trial Examiner concerning the series of speeches given by Attorney Price and Plant Manager' Bunch, we nevertheless find on the basis of his credibility resolutions that Respondent violated Section 8(a)(1) by soliciting employees to withdraw their union cards and by certain statements set out above that clearly indicated the futility of bargaining if the Union should be successful in becoming bargaining representative 174 NLRB No. 12 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards. In other words there would be trouble in the factory." This unremitting effort on the part of Respondent clearly impressed on the employees that Respondent had decided in advance not to bargain in good faith with the Union as required by the Act and that the employees could achieve nothing by designation of the Union. 2. We also agree with the Trial Examiner's finding that Respondent suspended and subsequently discharged employee Josephine Jaime in violation of Section 8(a)(3) and (1) of the Act.4 3. The Trial Examiner found that Respondent suspended employee Theresa Javier in violation of Section 8(a)(3) of the Act. Because he concluded that employee Robles' version of the statement made by Javier did not constitute a threat, the Trial Examiner concluded that the reported threat was used as a pretext by Respondent to suspend Javier, in order to discourage her and other employees from engaging in union activity. Thus, the violation turns on whether the Trial Examiner correctly construed Javier's statement to Robles. The evidence discloses that on the day of Jaime's discharge, Javier remarked to Robles that the latter seemed very happy because of this discharge and that Javier was going to "settle matters with" Robles. The parties stipulated that Robles testimony as to this statement would be corroborated by employees Eyre and Cordova. A discussion on the record then ensued among the various parties, the interpreter, and the Trial Examiner, in which the interpreter indicated that,the phrase "settle matters with me," in the terminology of translating the Spanish idiom, means fighting and can be construed as a threat. Upon the entire record, we are convinced that the statement to which Robles testified is usually understood as a threat. Under these circumstances, the premise for the Trial Examiner's conclusion that such threat was a pretext for suspending Javier is removed. Accordingly, we find that the General Counsel has not sustained his burden of proof, and we shall dismiss the allegation of the complaint that Respondent suspended employee Javier in violation of Section 8(a)(3) of the Act. 4. With respect to the Trial Examiner's remedial order, we are of the opinion that the circumstances of this case do not justify a departure from our normal period of posting or from the eligibility list requirements as set out in Excelsior Underwear Inc., 156 NLRB 1236. We shall amend the Order accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the 'Even if we found, contrary to the Trial Examiner, that the alleged offense against Jaime constituted the offense of clipping, as defined in the company handbook, this would not in any way affect our agreement with his ultimate findings herein Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Hicks-Ponder Company, Yuma, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraphs 2(b) and (d) of the Trial Examiner's Recommended Order relettering the paragraphs therein accordingly, and delete the 10th and 11th indented paragraphs (which deal with Theresa Javier) of the notice attached to the Trial Examiner's Decision. 2. In paragraph 2(f) of the Trial Examiner's Recommended Order delete "120 consecutive days" and substitute therefor: "60 consecutive days". 3. Add the following as the last indented paragraph of the notice: WE WILL NOT solicit our employees to withdraw their union authorization cards. IT IS FURTHER ORDERED that the election held on July 28, 1967, among Respondent's employees be, and it hereby is, set aside, and that Case 28-RC-1639 be, and it hereby is, remanded to the Regional Director for Region 28 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. IT IS FURTHER ORDERED that all allegations of the complaint not specifically found to be violations of the Act be, and they hereby are, dismissed. [Direction of Second Election5 omitted from publication.] 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 28 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director . The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE D vtD E. DAVIS, Trial Examiner. The complaint, in Case'-'28-CA-1575, was issued on November 9, 1967,i amend'uring the course of the hearing upon an original charg4, filed by Southern California Joint Board of Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, amended on August 22 and November 7, and was consolidated with Case 28-RC-1639 on November 9 for purposes of hearing by the Regional Director of Region 28 of the National Labor Relations Board, herein called the Board.' Thereafter, on February 6, 7, 8, and 9, 1968, the above consolidated cases were heard at Yuma, Arizona, by the undersigned duly designated Trial Examiner. The ' All dates herein refer to 1967 unless otherwise specified. 'The Regional Director issued his Report and Recommendations on Objections to Election and Order Directing Hearing in Case 28-RC-1639 on November 9 On November 27, the Board by its Deputy Executive Secretary, issued an Order adopting the Regional Director's recommendations as contained in his report HICKS-PONDER COMPANY complaint alleged that Hicks-Ponder Company, herein called Respondent, . since February, 23 interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, herein called the Act; by interrogating its employees concerning their union membership and activities and the activities and union membership of fellow employees, by engaging in surveillance of meeting places and union activities of its employees; by creating the impression that union activities, meetings, and meeting places were under surveillance; by announcing on numerous dates that Respondent would not negotiate in good faith or agree to any proposal or agreement with the Union if said Union was certified as the collective-bargaining representative of its employees; by announcing on numerous occasions that strikes of a violent nature, prejudicial to employees, would occur during which employees would be terminated and replaced for engaging in work stoppages or strikes; and by instructing a temporary laid-off employee that she was not to vote in the pending Board election. The complaint further alleged that Respondent violated Section 8(a)(1) and (3) of the Act by suspending Theresa Javier on July 27 and discharging Josephine Jaime on July 27 because of their union activity. Respondent in its answer admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Subsequent to the trial, counsel for the General Counsel and counsel for Respondent filed briefs which have been carefully considered. Upon the entire record' in these consolidated cases and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Hicks-Ponder Company, a Texas corporation, maintains its principal office at El Paso, Texas, with manufacturing plants at El Paso, Del Rio, Texas and Yuma, Arizona," where it is engaged in the manufacture and production of wearing apparel. During the last 12-month period, Respondent has manufactured, sold, and shipped from its Yurna plant finished products valued in excess of $50,000 diiectly to points outside the State of Arizona. During the same period, it has purchased and caused to be shipped to its Yuma plant textiles and other goods and materials from points outside the State of Arizona valued in excess of $50,000. The 5omplamt alleged, the answer admitted, and I find, that R,onent is engaged in commerce within the meaning GI"S ction 2(6) and (7) of the Act. I find that assertion of jurisciction would effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find that the Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 'The unopposed motion of the General Counsel to correct the transcript of the record is allowed. 'The plant at Yuma is the only one involved in these proceedings III. THE UNFAIR LABOR PRACTICES A. Background 53 Yuma, Arizona, and its surrounding area is basically agricultural. Respondent's plant is the only one of its kind in the vicinity and one of the few manufacturing plants. Respondent's plant is primarily staffed by Mexican nationals or Americans of Mexican descent.' The predominant language of the employees is Spanish and at least 50 percent of the rank and file employees are "green-carders."5 It appears that in communicating with supervisory personnel most rank and file employees require an interpreter. Frances Daniel, Respondent's personnel manager, usually acts as the interpreter. At the inception of the Union's organizational drive, early in January 1967, Respondent retained the services of Attorney John Edward Price of Forth Worth, Texas. The General Counsel in his complaint alleged that Price, as agent for Respondent, committed various unfair labor practices. Despite these allegations of the complaint, Price appeared as Respondent's attorney in these proceedings and as Respondent's chief witness. As will appear, infra, Price's conduct in his dual capacity left much to be desired.' B. The Issues The principal issues may be summarized as follows: 1. Should the Board-conducted election of July 28, 1967, be set aside because of Respondent's unfair labor practices? 2. Was Theresa Javier suspended because of her known union adherence, sympathies and activity? 3. Was Josephine Jaime suspended and then discharged because of -her known union adherence, sympathies and activity? 4. Did Respondent engage in unlawful surveillance of the union meetings places and of its employees' union activity? 5. Did Respondent in a series of speeches engage in unlawful threats of reprisal, anticipatory refusals to bargain, interference with employees' guaranteed rights, and other forms of coercion of employees in order to deter the employees from selecting the Union as their collective bargaining representative and to defeat the employees attempt at self-organization? C. Surveillance Wilma Robertson, a National Representative of the Union, testified that she spearheaded the organizational drive at Respondent's plant and that the drive commenced in January.' 'There was evidence that Philippine, Indian, Anglo, and other ethnic groups were represented to some extent 'A "green-carder" may be loosely defined as a person not a citizen or resident of the United States who has been issued a permit to work in the United States. 'The undersigned's expression of dissatisfaction with Price's conduct at the outset of this Decision is designed 'to focus on an important element in the determination of credibility resolutions in this Decision. e 'Initially, Robertson testified that the drive terminated with the election on July 28. When asked by the Trial Examiner if she was still trying to organize the employees, she amended her testimony by stating that the organizational attempt was continuing and had not been terminated. Respondent Counsel objected to the Trial Examiner 's question and was overruled It seems rather obvious that the question is nonpreludicial and 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robertson, a credible witness, testified that when she came to Yuma to commence the drive she lived at a hotel for a couple of weeks and then moved into an apartment at 11th Street and First Avenue, that it was located about six blocks from Respondent's plant; that she lived at the apartment until the latter part of June, that thereafter she rented a house at Avenue A and 16th Street; that during her occupancy of the apartment she conducted meetings for employees of Respondent's plant almost every other day, both during the lunch hour and after work; that attendance ranged from 8 to 40 employees; that she saw Gene Williamson, Respondent's assistant plant manager, Daniels, and Fred Bunch, Respondent's plant manager, approximately two or three times each week drive by and observe the cars parked in the lot adjacent to the apartment and looking over toward the apartment. As the apartment had windows facing each of the intersecting streets, Robertson stated that she would on occasion see Bunch, Williamson or Daniels driving around the block and pass the apartment a second time. When Robertson moved into the house she continued to have meetings for employees. Employees attending these meetings parked across the street in a vacant lot. She testified that she continued to see Bunch and Williamson pass her house on three or four occasions and Daniels more frequently, especially the week before the election when she saw Daniels passing every night; that the night before the election, on July 27, Daniels circled the house several times (four-five) looking at the house; that on one of these occasions, Robertson motioned Daniels to come in because the employees present were aware that Daniels was driving around the block; that on July 26th she saw Price accompanied by Bunch and Daniels drive by the house looking at the house and the parking lot across the street. On cross-examination, Robertson was able to identify the types of automobiles each person drove but was unable to give greater details concerning any particular occasion with the exception of July 26 and 27. Theresa Javier, whom I find worthy of credit, testified that she was a member of the Union organizing committee; that she saw Bunch, Price and Daniels drive slowly by Robertson's house at noontime on July 27, a day before the election; that she saw Daniels pass by the house on previous occasions and that on one occasion she and other employees waved their hands at Daniels inviting her in; that on July 27 she saw Daniels pass the house a couple of times and about six times during July. Mary Lou Montana, employed by Respondent for approximately 3 years, testified credibly that she saw Daniels passing Robertson's house a week before the election and one evening during the week of election she saw Daniels pass Robertson's house about six times within an hour and one-half. She saw Robertson wave to Daniels inviting her in. Price admitted that on two occasions during the week of the election he passed Robertson's house on the way to lunch. He was accompanied by Bunch on both occasions and by Daniels on one occasion. Daniels admitted that she passed Robertson's apartment and later the house occupied by Robertson on numerous occasions. She testified that she frequently visited her mother and sisters, each of whom lived in the area. On cross-examination, she could not give her sister's address, admitted her sister had moved, and was confused in tracing her route to her mother's house. Bunch and Williamson admitted passing Robertson's house on several occasions. Bunch explained his trips by the house by stating that he passed the house on the way to the Post Office, Williamson explained his trips by stating that there were various food sales in the vicinity. I do not credit the explanations given by Price, Daniels, Bunch, and Williamson. On the whole, I find them to be witnesses unworthy of credit who were engaged in a campaign to intimidate employees from joining or assisting the Union, Other incidents described hereinafter will demonstrate the lengths to which Price, Bunch, Daniels and Williamson went to further their intentions. Moreover, Bunch, in his 12 or 13 speeches to employees, some of which were interpreted by Daniels, repeatedly referred to the Union meetings at Robertson's house. I find that Robertson's apartment, from about February to the latter part of June and her house from then to the election, were kept under surveillance by Respondent's top supervisors and that Bunch's speeches were intended to advise the employees of this fact. Neither visitation to relatives, restaurants, Post Office or food sales can serve as an excuse for the open surveillance which was carried on. I find that by the above-described conduct of Price, Daniels, Bunch and Williamson, Respondent violated Section 8(a)(1) of the Act. D. The Suspension of Theresa Javier Theresa Javier was suspended by Williamson on July 27 because of a report that she had threatened an employee named Lupe Robles. Javier had signed a union card on February 3 and was on the Union's organizing committee. She had spoken to more than fifty employees concerning the Union. The evidence disclosed that her union sympathies were well known to Respondent since February. At the time of her suspension, Javier protested that she was being suspended without being given an opportunity to present her side of the story and without her witnesses being talked to by management. Bunch acknowledged that interviews of witnesses were conducted after Javier's suspension. Lupe Robles testied that the alleged threat consisted of an incident occurring at noon on July 27, when Robles and two other girls were eating their lunch under a tree on the grounds of Respondent's plant. Javier and several other girls came by and Javier remarked that Robles seemed very happy because Josephine Jaime had been fired and that later she (Javier) was going to settle things with Robles.' After Robles testified I stated on the record, addressing myself to Counsel for the General Counsel who was about to cross-examine, the following: TRIAL EXAMINER: I might save you some time, I am not going to interpret this as a threat. The following interchange then occurred: MR. MAST: Okay, pass the witness MR. PRICE: That is all, Lupe. I would say to Counsel in view of the Trial Examiner's statement, do you want to stipulate that the next two witnesses would say this is what was said? TRIAL EXAMINER: Yes, why don't you? MR. MAST: Okay, we will stipulate. MR. PRICE: So that the record will be clear, Mary Lou Eyre and Carlotta Cordova are here in the hearing room and if asked to testify on this matter, would 'Javier, testified that all she said was that she had something to tell was designed to reflect the true state of affairs for the record . Robles later. HICKS-PONDER COMPANY repeat what was said by the previous witness, Lupe Robles. Accordingly, the stipulation was entered into by Counsel. There was evidence that Javier had been suspended on a prior occasion and that she had an absentee record.' However, Javier was known to be an active union protagonist, she was suspended without adequate investigation of the above described incident; and Bunch did not reinstate her until the following Wednesday because of her alleged "attitude." Bunch testified that the reference to -her, "attitude" resulted from Javier's statement on the following Monday that -when she returned to work she would get even with those who caused her suspension. I do not credit Bunch's explanation. I infer the use of the word "attitude" as a reference to Javier's union adherence. Moreover, under the circumstances such an expression, even if made, could only be interpreted as an emotional outburst brought on by Respondent's unjustified action in suspending her in the first instance ' ° Javier credibly testified that Williamson, when he suspended her on July 27, told her not to come in to vote in the election scheduled for the next day." Moreover, the evidence disclosed that Javier was harrassed on a previous occasion' z because of her union proclivities. As I adhere to the ruling made on the record that Roble's version of the statement made by Javier, even if credited, does not constitute a threat, I conclude that the incident was used as a pretext to suspend Javier in order to coerce and discourage Javier and other employees from engaging in union activity in violation of Section 8(a)(3) and ^Ol) of the Act. D. The Discharge of Josephine Jaime Josephine Jaime, employed by Respondent for approximately 2 1/2 years, was suspended on July 24. The suspension was turned into a discharge on the following Thursday, July 27. The suspension and discharge resulted from an alleged violation of a rule against "clipping" tickets. It appears that Jaime was employed as a seamstress sewing pockets on army pants. The pants are placed near her machine in bundles, each bundle containing 3 dozen pants. Though Jaime's compensation was calculated on a piece rate basis, the records show that in the 2 1/2 years of her employment she rarely earned the $1 25 per hour guaranteed minimum payment" Bunch testified that during the last few weeks of her employment, Jaime produced 72 dozen at an average efficiency rating of 106.1 percent. However, this was not related to Jaime's earnings during this period but it is presumed that her earnings exceeded the minimum guarantee. The testimony demonstrates that Respondent was satisfied with Jamie's efficiency and her production was not related to her discharge. Respondent's reason for the suspension and discharge as testified to by Price, Bunch, Williamson, Daniels, and Forelady Sylvia Sims, 'R-12. "Cf Wagner Industrial Products Company , Inc., 170 NLRB No. 157. "Javier, however, voted an unchallenged ballot "This incident will be discussed, infra "R-4 shows that from November 20, 1965 until October 29, 1966, covering 45 weeks, Jaime exceeded the minimum of $1.25 per week only once, earning during the week ending June 18, 1966 the sum of $1.26 per hour. All other weeks she received make-up pay_ The average make-up pay was about $10 per week. Figures for the year 1967 were not produced 55 concerned the pasting of a work ticket from a bundle of pants on a "gum sheet" which was used by Respondent as the record from which piece` work earnings were calculated. Respondent's witnesses, named above,-testified that five work tickets representing five bundles were pasted on Jaime's "gum sheet" on July 24,^ when in fact, Jaime had completed only 3 1/2 bundles and, therefore, four tickets at a maximum should have been pasted on Jaime's gum sheet. Jaime, on the other hand, insisted that she had only pasted four work tickets on the gum sheet and that it was the general practice to paste the work ticket on the gum sheet after a new bundle had been opened and work started on it. Testimony from coworkers and Sims confirmed Jaime's testimony as to the practice and Respondent counsel conceded this. Jaime also insisted that she understood that she was suspended for following this practice and denied that she had pasted a fifth work ticket for a bundle which had not been opened or started Jaime testified that about 3 p.m. on July 24, she was summoned to attend a meeting in the forelady's lunchroom where Price delivered one of his speeches.14 and that if she had not been called away from her work she would have finished the fourth bundle that day. The thrust of Jaime's testimony was that she had been accused of "clipping" a ticket because she had pasted it before completing the bundle. Respondent's final contention was that Jaime had not only not completed the fourth bundle but had pasted a ticket for a fifth bundle which she had not even started. Sims admitted that Jaime had not signed the "gum" sheet assigned to her and that Sims, herself, had signed Jaime's name. The "gum" sheet was not produced, according to Price's- testimony, because it had been forwarded to Texas and there had been destroyed before Price had become aware that' the gum sheet had evidentiary importance. Price's explanation taxes credulity because of its innate inconsistencies and improbabilities and is not credited. Price testified that he understood from the Board attorney assigned to the investigation of the charge that Jaime's suspension was in issue rather than her discharge and that he was not aware that the discharge would be alleged as a violation of the Act until he received the complaint. He further testified' that his conversations with the investigating attorney and later with, the assistant to the Regional Director concerned a proposed settlement and that in fact a settlement agreement had been drawn up to this effect./5 I ruled that the proposed settlement agreement was inadmissible as an evidentiary matter. Price is an experienced labor attorney with considerable experience in dealing with the General Counsel's office. He knew or should have known that the General Counsel to avoid-extensive litigation, may offer to settle a case on terms that may vary from those that ultimately may be sought after settlement talks break down and a complaint is issued. Moreover, whether the suspension or discharge of Jaime was the issue does not affect the evidentiary value of the gum sheet. Essentially it would seem necessary to establish the identical facts. Even though I stated at the hearing, the failure of Respondent to produce the gum sheet is not crucial, nevertheless, because it was in Respondent's custody at all times and because I have discredited Price's explanation for the failure to produce it, I rule that the gum sheet if produced would have shown facts adverse to Respondent's position. Contrary to Respondent's contention, I find that "The speeches will be discussed in another section of this Decision. It seems fair to infer that attendance was compulsory even though employees working on piece rates lost earnings by their attendance "Apparently no agreement was reached. 1 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the, gum sheet,_ if produced, would have shown only 4 work tickets posted by Jaime. - Jaime, as a witness proved to be excitable and voluble, often failing to answer a question directly in her desire to emphasize aspects- more favorable to her -cause. As her testimony was elicited through an interpreter, who was apparently inexperienced, the record of her testimony is somewhat confused and disjointed. Despite these deficiencies, painstaking reviews of her testimony, the exhibits in evidence, and her demeanor on the witness stand, lead me to consider her on. the whole as a credible witness. I have summarized, below, in a more orderly fashion, the significant elements of her testimony which I have credited. Jaime had signed a union card at the very inception of the union organizational drive in January. Thereafter she attended union meetings at Robertson's apartment and house in June and July. About two weeks after Jaime signed a union card,, Sims in discussing the Union with Jaime, said that she would not vote for the Union because a union caused fights and strikes. Jaime was employed by Respondent;m February 1965 as a sewing machine operator. Her first supervisor was Forelady Marie Luera who gave her Respondent's handbook for employees and instructed her that when she finished,a bundle,"she was to detach the work ticket and paste it on a gum-sheet- At the conclusions of the day the gum sheet, signed by the operator, was collected by the 'forelady. As-earnings were calculated on a piece rate basis the number of work tickets pasted on the gum sheet of each operator determined the amount earned by that operator. In Jaime's case the record shows" that from November 20, 1965 to October 29; 1966,11' she failed to earn her -minimum guaranteed hourly rate of $1.25 per hour except for one week ending June ,18, 1966. As a result, Jaime was paid make-up pay for each week which averaged about $10 per week but went as high as $31. Nevertheless,- there was credited testimony" that for several, weeks prior to her termination in -July, Jaime exceeded the minimum at an average rate of 6.7 percent. After following Luera's instructions on when to remove the work ticket and paste it on her gum sheet, Jaime noticed that the girls were removing the work ticket before a -bundle was completed. Jaime thereupon commenced doing,it the same way. Luera agreed that she could do it that way except on Fridays, when she was to paste the work ticket only if the bundle had been completed.'" - Later Sylvia Sims became her supervisor and reprimanded Jaime on several occasions for removing the work ticket prior to completing a bundle. Finally, in February, she was called into the- office by Sims and asked to sign a written warning that a-- further offense would result in discharge for misconduct. In March, another written warning was given to Jaime for a similar offense.21 Jaime credibly testified that after her last reprimand she had misplaced a work ticket because she had not "'Jaime was employed to sew pockets on pants . I find that a bundle contained 3 dozen pants although the record reflects other testimony that a bundle contained two and one-half or two dozen. "R-4. "No records were produced for later periods "By Fred Bunch , plant superintendent "Friday was payday and apparently terminated the pay period. 'This warning, however, explicitly referred to removing 'a work ticket as she started sewing on i. bundle. pasted it on her gum sheet after starting on the bundle. As a- result, Gene Williamson, the assistant plant manager told her that she could remove the work ticket and paste it on-the gum sheet when she started working on a bundle. Sims and other employees testified and I find that Respondent approved and condoned this practice for some time before Jaime's discharge on July .27 and that the practice was in effect at the time of the hearing. On July 24, about 3 p.m., Jaime had completed 3 bundles and commenced on her fourth bundle, she removed the work ticket and pasted it, feeling she would complete it before 4:15, the quitting time. As it happened ,she was called to, attend a meeting to hear a speech by Price .22 As a result of the interruption and - because the meeting lasted until 4:15, Jaime was unable to complete the bundle that day. During her absence from her machine, Sims had collected Jaime's gum -sheet about 3:30 p.m. Sims noticed that Jaime had not signed it, so added Jaime's name to the gum sheet. According to Sims, Williamson and Price, the gum sheet showed five work tickets representing five bundles, when in fact only about 3 1/2 bundles had been completed. The gum sheet was not placed in evidence because it had been destroyed. Price's explanation for the destruction of the gum sheet, as noted above, is not credited. After Jaime reported at the supervisors' lunch room to hear Price's speech on July 24, she saw Bunch hand a girl a paper to give to Price. The,paper fell to the floor and Jaime picked it up and gave it to someone, to hand to Price. She noticed, however, that her name was written on the paper as well as that of Lupe Robles. During the meeting Price stated23 that if the Union won the election there would be fights among the employees as a strike would result and the employees who were on strike would fight those who wanted to work. Jaime contradicted Price by telling Daniels to tell Price that she (Jaime) .had been informed by the Union that there would be no strike. Price replied that there wasn't a union that did not have a strike. Jaime also asked what would happen if they, joined the Union.24 Price replied that everything would be the same, there would be no more money and benefits, that when the Union asked for something they would say "no, no, no."25 Jaime asked Daniels at the conclusion of the meeting what the paper with her name and Robles' name said. Daniels replied that it pertained to them and not to her. Jaime said that she saw her name on it and asked Daniels to ask Bunch what the paper said as they were about to go home. Apparently she received no reply., As it was 4:15 p.m., the usual quitting time, she went ;back to her work station to look for the gum sheet to attach her signature. She could not find it and went home. The next morning, Jaime could not find her timecard- and ' she so informed Daniels, who told her-that she had to go to the office. When she went to the office-, Daniels and Williamson -were there. Daniels told Jaime that the paper handed to Price during his speech on the previous day contained a statement that. Robles had said that, Jaime had told some of the girls that those who did not join the Union would be hurt. Jaime replied that Robles did not say that and wanted Robles to be called into the office "Fourteen or fifteen other Spanish-speaking employees were called to this meeting at which Daniels acted as interpreter. "Through Daniels. "I interpret this question , as apparently did Price, to mean if the employees selected the Union. "Some of Jaime's questions to Price during the meeting and Price's answers were not interpreted as Jaime does have a fair understanding of English HICKS-PONDER COMPANY together with an interpreter. After repeating the request several times, Robles was summoned. Robles, in Jaime's presence, stated that Jaime had told her that she would be fired if she did not join the Union.26 Daniels then sent Robles back to work saying that they had another matter to discuss with Jaime. Daniels said Jaime was to go home and she would be notified when to return as she had wrongfully pasted a work ticket on her gum sheet after having signed a ,paper saying that .she would not do so again.27 A few days later a fellow employee notified Jaime that Bunch wanted her to come in on July -27. When Jaime met with Bunch on July 27, she- was told that her employment was terminated. At the conclusion of her direct testimony, Jaime denied that she had threatened Robles in any way.28 Williamson's and Daniel's testimony, to the extent it differs from Jaime's credited testimony as recited above is not credited. On cross-examination, Jaime testified that on Tuesday morning, July 25, when she was sent home, Williamson showed her the statement she had signed on the cardex file.29 Jaime testified that she did not understand what she was signing at the time but signed it because she was told to. She also testified that her understanding and reading ability of English is better now because she had been going to school- - Price testified that on July 24, at the conclusion of the meeting in which he addressed a group of Respondent's employees, one of which was Jaime, he was informed by Williamson that Jaime had violated a company rule of which she,. had been previously warned. Williamson told Price that Jaime had placed five work tickets on the gum sheet and that she had not completed five bundles. Williamson said she had only completed three bundles and had started a fourth. Price asked to be taken to Jaime's work area, and Price, Bunch, Williamson and one other person30 went to Jaime's machine and found one bundle that had not been done; and another of which less than half were done. Price further testified that immediately prior to the foregoing incident, he had been addressing the group of employees when Bunch attempted to hand him a note. The note fell to the floor. Jaime returned the note and handed ^ it to Price. Jaime's name was on it and the note said that Lupe Robles had been threatened in some way by Jaime." Having, seen her name on the note, Jaime asked Price, some questions about, what was in it, what threat she was supposed to have made to Robles, to get Robles, , and to read the note. Price then told the assembled employees what was supposed to have happened, saying he did not know whether it had occurred or not and refusing to identify the parties to the incident. He told the audience that this is an example of things that in his experience, happened when unions had come into plants. Price specifically denied that he stated to Jaime or any other of Respondent's employees that Respondent would not negotiate if the Union won a majority; that z"I note that Robles is the same person involved in Javier's case. I also note that Roble's statement above, as to what Jaime allegedly, told her is different than Daniels' version. "I understand the above conversation was between Williamson and Jaime with Daniels acting as interpreter. 'Robles gave no testimony with regard to any matter concerning Jaime. Respondent does not claim the alleged threat to Robles to be one of the causes of Jaime's discharge . At any rate I credit Jaime's testimony that she did not threaten Robles or any other girls in Robles' presence. "Upper right hand corner of R-5-a, dated February t6, 1967. The reverse side of this exhibit also contains a memorandum signed by Williamson dated March 14, 1967. The reverse side is reproduced in the center of R-5-a. 57 everything would remain the same, that the Respondent would say "no, no, no" to any proposals for more money or benefits; that there was no Union that did not cause strikes.32 Sylvia Sims testified that on the day Price was making a speech to some of the Spanish speaking operators, some of the operators, including Jaime, did not have their time sheets filled out and that she completed them. She went to Jaime's machine and saw five work- tickets on Jaime's gum sheet when only three and one half bundles were completed. She thereupon went to Williamson and told him about it. Sims then testified concerning a previous occasion in February when a similar incident occurred. At that time Sims had become quite emotional about it. Sims also testified that she had warned Jaime about five times concerning the same subject matter. She also gave testimony about an incident when Jaime had mistakenly sewed on pockets slightly different in color than the pants and of an occasion when Jaime turned her machine on while Williamson was admonishing her. Sims further testified that the March incident recorded as' a warning on Jaime's cardex file concerned a second occasion when Jaime attached off color pockets However, after a series of leading questions on direct examination by Price, she stated that the shading of pockets occurred sometime in July, just before Jaime's discharge. On cross-examination, Sims reluctantly admitted that an operator can place a work ticket on her gum sheet for a bundle she expects to finish that day. She also admitted that if the bundle is not finished that day it could be finished the next day and that the rule against "clipping" tickets concerned itself with stealing a ticket from another operator to claim payment for work that the operator had not performed. Sims refused to concede that Jaime was never paid for work she had not done. She sought refuge in saying she could not recall but admitted that such an incident was never called to her attention. Finally she stated that she had never told Williamson that she wanted Jaime or any other employee discharged. I conclude that Jaime was suspended and discharged because of her known Union adherence and advocacy rather than her alleged attempt -to "clip" a work ticket. Basically the accusation against Jaime, although alleged as "clipping", does not, in fact, constitute the offense of clipping as defined in the company's hand book. My appraisal of Sims and her testimony lends much support to my conclusion. Sims apparently dredged up every real and imagined dereliction on Jaime's part. She exaggerated Jaime's deficiencies to such - an extent that it was beyond understanding why Jaime was retained as long as she was. Moreover, she confused the events and was extremely reluctant to admit the fact that an operator could paste a work ticket on her gum sheet when she commenced work on a new bundle. I completely discredit Sims and find that she was aware of Jaime's pro-union feelings and merely called Williamson's attention to Jaime's failure to complete the fourth bundle-prior to pasting it on her gum sheet. It was only after Price's speech during which Jaime took issue with Price, and after Price, Bunch, Williamson, Sims and Daniels discussed the matter thoroughly that it was decided to discharge Jaime. It was then that the non-existent fifth bundle was invented to bolster the case against Jaime. If the facts were otherwise, Williamson, in a reasonable exercise of his authority, would have 38Probably Sims. "R-2. "As will appear, infra. I do not credit Price's denials 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged Jaime immediately. Instead Williamson informed Price and the entire managerial hierarchy went to Jaime's work area, and then only suspended her. The next day when Jaime returned the first item discussed with her was her alleged ' threat to Robles, not her pasting of five tickets..I am convinced that with the election but a few days away, Respondent was quite eager to seize upon any colorable incident to discourage a favorable vote for the Union. Jaime by her open advocacy of the Union cause at the meeting addressed by Price was an inviting target and was suspended and subsequently discharged for that reason. I conclude that Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging Jaime in that the,alleged "clipping" of a work ticket was seized upon as a pretext to demonstrate to Jaime and other employees that Union adherence and advocacy would lead to loss of employment. The issue, as I see it, is not whether or not a valid ground existed for Jaime's discharge, but whether the stated ground was the real one. I believe it is rather plain that Jaime was discharged for her known union proclivities E. The Speeches Soon after Respondent became aware of the union organizational attempt, Price arrived in Yuma. On February 6, according to Price, he spoke to supervisory employees outlining his concepts of how they should conduct themselves. He frequently referred to the book he had written.34 Later the same day Price made his first speech to all employees. It was translated' into Spanish for those who could not understand English.35 Price in this speech attempted to persuade the employees to refrain from signing union authorization cards and promised to return to the plant to give the employees a complete "education" on unions in general and this Union in particular. He did not remember whether, on this occasion, he explained how those who had signed union cards could get them back but believed that he mentioned this subject in a speech in March. As the list-of speeches and subject , matter in evidence36 was prepared by Respondent, and as only the speech of February 6 refers to card signing, and asc.testimony by other employees indicated that this matter was discussed by Price on February-6, I find that Price did state on February 6, that he would at a later date advise -those who had signed cards how they could withdraw them. I find that the notice posted on the bulletin in Respondent's plant on March 31,37 was in fulfillment of that promise. Respondent neither produced nor -named any employee who had requested such information and I find by volunteering this information in the context of its antiunion campaign, Respondent violated Section 8(a)(1) of the Act. On February 9, Fred Bunch -reminded employees over the public address system38 that Price would soon return to speak to them further about unions. Price made two speeches on February 13, two on March 17, two on April 11, one on June 22 3' and 12 speeches to 12 different groups on July 24, 25, and 26.6° "J. P. Stevens & Co., 380 F 2d 292, 300; Ulbrich Stainless Steels, Inc., 164 NLRB 130. 4R-3 "Eddie Coronado was the interpreter on this occasion "G.C 2(a) "G C 2(e) "Translated by Daniels. Thus it is admitted that Price made at least 20 speeches prior to the Board-conducted election of July 28. Bunch, in addition to the speech he made on the public address system on February 9, made three speeches on May 17, 12 speeches from July 10 to' July 20, and one speech on July 27.41 Thus it is conceded that Bunch made a total of at least 17 speeches. From July '10 to July 27, the day before the election, Bunch and, Price together made a total of about 24 speeches. Price testified that all of the speeches were designed to educate the employees concerning unions. The education consisted to some extent of tales of-Price's experiences in various plants throughout the country with which he was associated as Counsel. He told his audiences of the violence, injuries, loss of jobs, arrests, and other dire consequences resulting from union activities. He pointed out, that even where the Union was successful, no contract was negotiated or a very poor one was achieved. The General Counsel characterized these accounts as a "trail of blood" commencing in 1952.-02 One witness described the speeches as bringing up the disadvantages of unions without -mentioning any advantages. Price, attempting-to justify the speeches, stated the purpose of the speeches was designed to persuade the employees against representation by a labor organization. Bunch followed Price's pattern in his series of speeches emphasizing violence, strikes, discord, and danger of loss of jobs. During the speeches, particularly those in the last week or two, addressed by Bunch and Price to'groups of 15,43 questions were asked by employees.44 - I credit the testimony of the General Counsel's witnesses that both Bunch and Price during the speeches and in response to questions -said' 1. That if the Union won, the election the employees would derive no benefits whatsoever 2. That Respondent would say ."no, no, no" to any proposal by the Union .4-1 3. That 'all unions engage in strikes and that the Union involved herein, in order to achieve anything for the employees, would have to call a strike in Respondent's plant. 4. That loss of jobs would result from a strike.46 5. That there would be fighting,violence; and injuries.41 Having in mind the economic and ethnic composition of the rank-and-file employees, the impact of the above type of "education" can be readily imagined.' Without unduly emphasizing the nature of the employee population, I find the above statements violative of Section 8(a)(1) of the Act as they go far beyond the protection afforded by Section 8(c) of the-Act. When these statements are considered in the context of other conduct engaged in by Respondent, as recited heretofore and hereafter, together with the makeup of the employee "This speech concerned the Representation Hearing held on that date. - "Daniels interpreted where necessary All speeches translated by Daniels where necessary. 42No complete text of any of the speeches was available. "There were about 24 such speeches. 44It was during the questioning periods that Javier and Jaime demonstrated their union adherence. , "Price admitted using the phrases "no , no, no" but denied using it, in this context. I do not credit his denial "I do not credit Bunch's and Price's assertion that the distinction between economic and unfair labor practice strikes was explained. 4'G C. 2(f), a message to employees dated July 27, in much milder terms clearly was designed to refresh the memories of the employees with regard to the matters as detailed above in the speeches. HICKS-PONDER COMPANY complement, it is readily understandable that a wave of fear permeated the employees and convinced them of the futility of seeking union representation. Under all the circumstances, I find that this was the end result and that Respondent deliberately embarked on its anti-union campaign to accomplish this result. The remarks of Price and Bunch were made in the supervisors' cafeteria to small groups whose attendance was compulsory. Systematic exposure of employees to antiunion speeches, not dissimilar to that found here, have been held inherently coercive and grounds for setting an election aside.48 In view of the numerous speeches made to ensure complete coverage the threats upon employee freedom of choice in the forthcoming election, assume added significance. I conclude that the speeches of Price and Bunch constituted violations of Section 8(a)(1) of the Act. F. Other 8(a)(1) Williamson sometime in February, called Javier into the office and in the presence of Daniels accused her of insubordination because Javier had told Daisy Tomlin, a supervisor, not to talk to her as Tomlin would get in trouble.4' Javier explained that Williamson had told Lydia Luera, another supervisor, and a friend of Javier's, not to associate with Javier because it didn't look right for a supervisor to talk to Javier during the union organizational drive. Javier remained in the office for 1-1/2 hours, the last 20 minutes after 4:15 p.m., the normal quitting time and after Daniels had left Javier was paid at the overtime rate from 3:50 to 4.35 p.m. During the conversation, Williamson told Javier that he knew that Luera was at Javier's house during a union meeting. Javier denied this, saying Luera was at her house 2 or 3 hours before the meeting. Williamson, after asking her opinion of the Union, told her not to threaten anyone if they refused to sign union cards. I find this incident violative of Section 8(a)(1) of the Act in that it constituted unlawful and coercive interrogation and gave the impression of surveillance. Manuel R. Chavez testified that sometime in March, Daniels asked him if he was trying to get a certain girl to sign a union card. Also in the same month, Daisy Tomlin approached employee •Jubentina Sanchez and asked her what she thought about the Union. I find that each of these incidents constituted independent violations of Section 8(a)(1) in that Daniels' question is designed to inhibit union activity and the Tomlin question is designed to elicit information concerning union sympathy. Where, as here, a union organizational campaign is in progress and management has made clear its strong union antipathy, such questions tend to have a coercive effect. Illustrative of the above is Sanchez' reply to Tomlin's question. Sanchez told Tomlin, "I don't know nothing about the Union." The fact is that Sanchez had signed a union card earlier but considered it necessary to be untruthful on this subject.50 I also find violative of Section 8(a)(1) Williamson's question and request to Sanchez in April. Williamson, according to Chavez' credited testimony, asked him if he knew anyone who had signed the union cards. Chavez "General Shoe Corporation , 97 NLRB 499, Economic Machinery, 111 NLRB 947; Lenkurt Electric Company , Inc, 169 NLRB No. 127. "Javier had asked Tomlin for a cigarette and then decided against it. She then told Tomlin that she did not want Tomlin to get in trouble. "Tomlin's and Daniel's denials are not credited. 59 replied that he did not. Clearly the question is an attempt to enlist Chavez as an informer to uncover union adherents.51 I find that Williamson told Javier when he suspended her on July 27 not to cast a vote in the election scheduled for the next day. I find this statement to constitute a violation of Section 8(a)(1) of the Act. G. The Log During the course of the hearing Price attempted to introduce into evidence part of a page from a book identified as a "log" by Daniels. At the direction of Price, Daniels refused to testify even in response to a subpoena served by the General Counsel.52 At Price's direction Daniels refused to produce the log. Price, himself, also refused to produce the log when requested by the General Counsel and ordered by the Trial Examiner. Testimony by Daniels and Williamson established that the log was kept by Daniels pursuant to Price's instruction after his first visit, and that it contained all "unusual" events and conversations occurring in the plant including matters pertaining to union activity. Under these circumstances I ruled that it was proper for the General Counsel to subpoena and examine the log. Respondent, through Price, refused to abide by the Trial Examiner's instruction to produce the log. I find that the production of this log would disclose evidence unfavorable to Respondent. I further find that the log was a crude attempt to memorialize for Respondent information which would establish the identity of those persons engaged in union activity and which would record all such events and conversations. The evidence warrants an mference that employees and supervisors were encouraged to report all such incidents. Apparently Robles, in order to ingratiate herself, made such reports and, as described above, Respondent reacted to the information supplied by her. Under the circumstances, I find that the maintenance of the log constituted interference, restraint and coercion in violation of Section 8(a)(1) of the Act in that the maintenance of such- a log was designed to inhibit employees in their rights under Section 7 of the Act by encouraging employees to report and identify union adherents and union activity. H. Credibility of Witnesses In the preceding sections of this decision I have indicated my disbelief of crucial elements of the testimony of Respondent's witnesses. Although the record itself adequately supports my conclusions, I believe a few additional observations are warranted. Additionally, this hearing is rather extraordinary because Respondent's chief witness was also Respondent's chief adviser and spokesman during its antiunion campaign and thereafter appeared at the hearing as Respondent's trial counsel. Initially it seems fair to comment that Price appeared to be the architect and in full charge of the antiunion campaign waged by Respondent. Not only did Price plan the strategy, but also undertook to play the leading role in the campaign. As the General Counsel cogently observes such activities are not normally that of an attorney. Congress in the 1959 amendments to the Act recognized "General Automation Mfg., Inc., 167 NLRB No. 66. 52Daniels subsequently was called by Respondent and cross-examined by the General Counsel. The General Counsel was given complete latitude in cross-examintion. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the distinction between attorneys providing legal services and those acting in a nonlegal labor relations capacity." Accordingly, when Price cast himself in his several capacities in this case he became not only a participant in the commission of some of the unfair labor practices found herein but also an important witness for Respondent In view of the foregoing, I find that Price was a witness with a high personal interest. It follows that his testimony must be subjected to the closest scrutiny. In this regard his testimony concerning the reasons for Respondent's failure to produce Jaime's gum sheet warrants further discussion Price initially attempted to have the Trail Examiner believe that the attorney investigating the case assured him that only Jaime's suspension, not her discharge, was in issue. As pointed out heretofore, this is a distinction without a difference Assuming, arguendo, that there could be a difference, the evidence, nevertheless, shows that this was an untruthful statement. Price places the conversation with attorney Ziprin as occurring about September 25. However, in a statement prepared by Price and signed by Bunch, Williamson and Daniels on October 3,50 it is asserted; " . The allegation is that Jaime was discharged because of her union activities. This allegation is denied." Though this joint statement of Daniels, Bunch and Williamson was dated October 3, Price forwarded it to the attorney with a covering letter dated September 30.55 Later, after being shown the above correspondence, Price stated that he had a conversation with the assistant to the Regional Director in October, at which time he received the assurance that the issue was the suspension of Jaime not her discharge. As this was a conference to discuss possible settlement, it hardly serves as an excuse for the claimed destruction of the gum sheet. Price's testimonial account with regard to his speeches is quite disjointed and contradictory. Initially Price offered to repeat his speeches verbatim When deterred by the Trial Examiner, he stated that the essence of his book56 was in fact his speech. On cross-examination when asked for a detailed statement of what he said, he confessed that he could not remember what he said on any particular occasion The best he could do was to summarize some of the subjects he covered, including the "bloody trail" of his experiences In addition, Price's failure to produce the log when ordered to do so after Daniels surrendered possession of it to him, warrants an inference that Price was unwilling to have the truth disclosed. Price's general demeanor, his characterization of himself as agent "007", and other remarks while testifying under oath contributed to my overall judgment that he was a witness who was lacking in candor, and was not averse to contriving conversations and evidence which he thought would put himself and Respondent in a more favorable light. Daniels, sitting at the counsel table with Price and assisting him at various times, refused to produce the "log" when it was in her possession in the courtroom or to testify when called to the witness stand by the General Counsel. Her failure to produce and testify was at the direction of Respondent's counsel, accordingly I do not "Reporting and Disclosure Act of 1959, Section 203 (b)(1) and (2) See also John Edward Price v Willard Wirtz , 58 LRRM 2501 I leave to the Board to make an independent appraisal of Price's conduct as an attorney 'G C 7 "Price apparently knew what the statement would contain four days before it was signed "R-3 draw any inference against her by this conduct. However, her contradictory and untruthful testimony concerning her reasons for her frequent trips in the vicinity of Robertson's apartment and house demonstrated a desire to mislead the Trial Examiner Her feigned ignorance of the meaning and purpose of a "green card" was, in my opinion, false. So was her professed ignorance of industry prevailing in the area. Her professed lack of knowledge concerning various records kept by Respondent was far from convincing. She was personnel director of a plant employing 200-250 employees, half of whom at least were Spanish speaking and approximately 50 percent were so-called "green carders." It is incredible that she did not know much more than she was willing to admit especially when she acted as chief interpreter for the supervisory hierarchy in their contacts with rank-and-file employees I find Daniels to be a witness unworthy of credit. Williamson's total credibility is completely impaired by his question to Price while testifying under oath. On redirect examination he was asked a compound question concerning the log He commenced an answer and then hesitated, whereupon the Trial Examiner prompted by saying, "Tell us what you know." Williamson, looking directly at Price, then asked, "As far as I know, should I tell him?" Price did advise him to tell what he knew but Williamson having sparred for time, apparently decided to be less than candid and merely acknowledged that there was a log being kept for Price. Williamson's reluctance to testify to the true facts concerning the log becomes obvious when the above testimony is contrasted with testimony he gave earlier on cross-examination. Williamson was asked if he had received instructions to report things about the Union to Mrs Daniels He replied, "not about the Union" The following interchange then occurred- Q. (by Mr Mast) What were your instructions concerning reporting to Mrs. Daniels? A. Any unusual incidents. Q. Who gave you those instructions? (no response) TRIAL EXAMINER: You mean you can't remember9 THE WITNESS: No, I think it is probably my own. Later Williamson admitted he knew Daniels was keeping a log. He also stated that he would not deny that some of the things he said to people in her presence found its way into the log.57 In assessing Williamson's demeanor on the witness stand and his testimonial account, I place little credence in his testimony where it is in conflict with other credited testimony or the conclusions drawn herein. Fred Bunch, liberally sprinking his testimony with the phrase "per se," did not impress the undersigned as a witness willing to disclose the true facts. As plant manager, he, like Price, served as a spokesman for Respondent. It was Bunch who made the final decision to suspend Javier and to discharge Jaime. I have concluded that Bunch's testimony cannot be credited where it is in conflict with that of the witnesses called by the General Counsel or where it is contrary to findings made in this Decision. "This oblique admission is typical of Williamson's aversion to be forthright. It is further demonstrated by his evasion of a direct reply to whether or not he was interested in the union organizational campaign When Williamson's demeanor and testimony is viewed as a whole, I place no credence in his recital where it contradicts testimony offered by the General Counsel' s witnesses or to the inferences I have drawn herein HICKS-PONDER COMPANY 61 V. The Objections to the Election The representation petition in Case 20-RC-1639 was filed on May 26, 1967. A Stipulation for Certification upon Consent Election was executed by the parties on June 22, 1967. An election by secret ballot under the supervision of the Regional Director for Region 28 was conducted on July 28, 1967. The results of the election showed that the Union did not obtain a majority of the valid votes cast and thereafter, on August 4, 1967, filed timely objection to the election and to conduct affecting the results of the election. On November 9, 1967, the Regional Director, after investigation of the objections, issued and served on the parties his Report and Recommendations on Objections to Election and Order Directing Hearing 58 The Regional Director in his report found that Objections 1, 2, 3, 4, and 6, also alleged as unfair labor practices in Case 28-CA-1575, raised substantial issues of fact and credibility which can best be resolved by a hearing. He, therefore, ordered that a hearing be held before a Trial Examiner for the purpose of taking evidence in connection with said objections. The Regional Director simultaneously with his report issued an Order Consolidating Cases and Notice of Hearing. The Board, on November 27, 1967, adopted the Regional Director's recommendations overruling Petitioner's Objections 5, 7, and 8 and ordering the remaining objections processed pursuant to the Notice of Hearing. The undersigned duly designated Trial Examiner having arrived at his decision in Case 28-CA-1575, as detailed above, finds merit to Objections 1, 2, 3 and 4.59 As the conduct which I have found in section III of this Decision continued during the time period which commences with the filing of the petition to the time of the election,'" I find that this conduct grossly interfered with the employees' right to a free and untrammeled choice in the election. Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent, Hicks-Ponder Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the discriminatory suspension of Theresa Javier on July 27, 1967, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and 8(a)(1) of the Act. 4. By the discriminatory suspension of Josephine Jaime on July 24, 1967 and by subsequently discharging Josephine Jaime on July 27, 1967, and by its refusal to reinstate Josephine Jaime because of her union adherence, advocacy and sympathy, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By engaging in conduct described above, in section III of this decision, Respondent has interfered with, threatened, and coerced its employees in the exercise of "G.C. 1(h). "Although Objection 5 as stated by Petitioner was dismissed by the Regional Director, I have found that Respondent did unlawfully solicit employees to withdraw their union authorization cards The matter, in my opinion, was fully litigated. "Ideal Electric Co. 134 NLRB 1275 the rights guaranteed to them in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By engaging in the conduct described above during the period after the filing of the representation petition to the date of the election, Respondent illegally and substantially affected the results of the Board election conducted July 28, 1967. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. All allegations of the complaint, as amended, not found herein to constitute unfair labor practices are hereby dismissed. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) of the Act by conducting an antiunion campaign including: (1) unlawful solicitation of its employees; (2) unlawful interrogation and surveillance of meeting places of its employees who gathered to engage in concerted activity for their mutual aid and protection; (3) threats, interference, coercion, and intimidation of its employees by a series of speeches designed to frustrate the self-organization campaign in progress, and having found Respondent thereby interfered with its employees' rights guaranteed to them under Section 7 of the Act, I shall recommend an order that it cease and desist from such conduct. Having found above that Respondent by its conduct described above during the crucial time commencing with the filing of the petition to the date of the election, substantially and effectively interfered with its employees' right to a free and untrammeled election, I shall recommend that the election held on July 28, 1967, in Case 28-RC-1639, be set aside and a new election be conducted at an appropriate time to be determined by the Regional Director for Region 28. Having found that Respondent discriminated against Theresa Javier by suspending her on July 27, 1967, I shall recommend that Respondent make her whole for any loss of pay that she may have suffered by reason of the discrimination against her, by payment to her of a sum of money she would have normally earned from the date of her suspension until the date of her reinstatement. The backpay to be computed in the manner described below with reference to Josephine Jaime. Having found that Josephine Jaime was discriminatorily suspended and subsequently discriminatorily discharged, I shall recommend that Respondent offer her full reinstatement to an equivalent position, without prejudice to her seniority rights and privileges, and Respondent make her whole for any loss of pay that she may have suffered by reason of Respondent's discrimination against her by payment to her of a sum of money equal to that which she would have normally received as wages from July 24, 1967, the date of her suspension, until the day Respondent reinstates her, less any net earnings for the interim period. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heating Co, 138 NLRB 716. I find that the unfair labor practices found herein strike at the very roots of employees' rights which the Act is designed to prevent. Accordingly, I shall recommend a broad cease and desist order. In view of the fact that a large proportion of the employee complement are Spanish speaking, I shall recommend that the notice to all employees which I shall order to be posted, shall be printed distributed and posted in both Spanish and English The General Counsel, in his brief, requests certain remedies going beyond the usual because of the "massive anti-union campaign speeches, and the passage of time before a remedy can be affected." I shall treat with each of his requests below: 1. I approve and recommend that the notices, one in English and one in Spanish, be mailed to each employee who was on the payroll during the period of the violations found herein and each employee who is currently on the payroll. The reason given by the General Counsel that it would reach a greater number of employees past and present and thus more effectively remove the effects of the unlawful conduct of Respondent, seems entirely valid. However, in addition, it is my view that the mailing recommended would enable each of the addressees to digest at his or her leisure, without fear of observation, the import of the Notice to All Employees, thereby leading to a better understanding of the rights guaranteed to employees under the Act. 2. 1 deny the General Counsel's request to require the publication of the notices in a newspaper of general circulation in the area of Yuma, Arizona. I cannot perceive that this will serve a purpose in view of my recommendation immediately above. 3. I shall recommend that the posting period be extended to 120 days rather than the customary 60 days. 4. I deny the General Counsel's request that the Union be awarded equal time if Respondent makes additional speeches regarding union organization to employees within the next 6 months. While the evidence warrants an inference that attendance of employees at the speeches by Price and Bunch was required, it has not been shown that the Union at any time made a request for similar privileges and was denied an opportunity to address the employees. I cannot speculate what the result would have been if such a request had been made. 5. I shall recommend, as requested by the General Counsel, that the Union upon request shall be furnished a current list of employees together with all corrections for a 6 month period. 6. I deny the General Counsel's request that Respondent be required to post the notices at its other plants. Although Respondent's El Paso plant was referred to in the speeches, I do not believe that such posting is warranted. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, I recommend that Respondent, Hicks-Ponder Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting employees to withdraw their union authorization cards. (b) Informing its employees that in the event the Union is certified as their collective-bargaining representative that Respondent would not negotiate in good faith; that no collective-bargaining agreement would be consummated; that strikes and violence would inevitably occur; that wages, hours and working conditions would remain the same. (c) Engaging in surveillance of the meeting places of employees interested in union organization. - (d) Discouraging membership in Southern California Joint Board of Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization by suspending, discharging, or in any other manner unlawfully discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment. (e) In any manner interfering with, restraining, or coercing its employees in their right to self-organization, 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 activity. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Offer to reinstate Josephine Jaime to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole in the manner described in "The Remedy" section of this Decision for any loss of earnings suffered by her by reason of the discrimination against her. (b) Make Theresa Javier whole for any loss of earnings suffered by her by reason of her discriminatory suspension on July 27, 1967. (c) Notify Josephine Jaime, if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Furnish the Union with a current list of employees as of the date of the receipt of this Decision and Recommended Order and supply all corrections monthly until the date of the new election as fixed by the Regional Director for Region 28. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (f) Post at its Yuma, Arizona, plant copies of the attached notice marked "Appendix "61 Copies of said notice on forms provided by the Regional Director for Region 28, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 120 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (g) Mail copies of attached notice in- Spanish and English to all persons in its employ during the period of the violations found herein and also those in its employ on "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " HICKS-PONDER COMPANY the date of this Decision and Recommended Order (h) Notify the Regional Director for Region 28, in writing, within 20 days from the,date of receipt of this Decision what steps have been taken to comply herewith.62 "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 28, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a Trial at which, all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board found that we, Hicks-Ponder Company, violated the National Labor Relations Act, and ordered us to post this notice. The Law gives all employees these rights: To engage in self-organization, To form, join, or help unions, To bargain collectively through a representative of their own choosing, To act together for collective bargaining or other mutual aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT tell our employees that union organization means strikes and violence and loss of jobs. WE WILL NOT spy on the meeting places of our employees who attend union meetings. WE WILL NOT threaten our employees that if the Union wins a majority of the votes cast in an election, it would not help our employees as we would say "no, no, no" to all union demands. 63 WE WILL NOT question our employees whether they are in favor of the Union or are helping the Union, or ask our employees to tell us what employees favor the Union. WE WILL NOT discharge, punish, or refuse to employ any employee for helping, joining, or engaging in other activity in behalf of the Union. WE WILL NOT interfere with efforts of our employees to act together for better wages, hours, or conditions of employment. THE TRIAL EXAMINER found that Theresa Javier was suspended and Josephine Jaime was discharged because of their advocacy of union organization and because they were active in helping the Union. WE WILL therefore make up any pay lost by Theresa Javier by reason of her suspension and pay her 6 percent interest thereon. WE WILL offer to employ Josephine Jaime and make up any pay she lost from July 24, 1967, and pay her 6 percent interest thereon. HICKS-PONDER COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify Josephine Jaime if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Building and U.S. Court House, 500 Gold Avenue, Room 7011, P.O. Box 2146, Albuquerque, New Mexico 87101, Telephone 247-0311, Extension 2556.