Farah Manufacturing Co., Inc.

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farah Manufacturing Company, Inc. and Amalgamated Clothing Workers of America, El Paso District Joint Board, AFL-CIO. Cases 28-CA-2036, 28-CA-2054,28-CA-2089,28-CA-2097, 28-CA -2099, 28-CA-2109, 28-CA-2126, 28-CA-2137, 28-CA-2152, and 28-CA-2210 March 23, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 24, 1972, Administrative Law Judge' James R. Webster issued the attached Decision in this proceeding. Thereafter, the Respondent and General Counsel filed exceptions and supporting briefs2 and the Charging Party filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge with the following modifications: 3 Joseph Chemali, Respondent's vice president, discharged Luis Alvarez on July 10, 1970, assertedly for insubordination. The Administrative Law Judge concluded that the discharge was, indeed, for insubordination and thus found that it was not unlawful. We do not agree. Prior to Alvarez' discharge, employees on numer- ous occasions had given both pro- and anti-union speeches in the main hallway of the Gateway plant during the lunchbreak. Such activity occurred on July 10, creating some congestion in the hallway which Chemali and several supervisors sought to alleviate by directing employees to stand back I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Respondent's request for oral argument is hereby denied, as the record, including the briefs, adequately presents the issues and the positions of the parties Contrary to Chairman Miller's position with respect to the discharges of Hector Caballero and Roberto Rodriquez, set forth in in 3 below, we agree with the Administrative Law Judge that Caballero, whose name was submitted to Respondent in the union telegram of November 26, 1969, and Roberto Rodriquez were discharged on November 29, 1969, because Respondent was enforcing more strictly its rule against absences after a holiday in retaliation against the union activities of its employees The record shows that in 1968 only three employees were discharged after Thanksgiving for violation of the rule There were no discharges for violation of the rule in connection with the Fourth of July or Labor Day holidays in 1969 However, in November 1969, 15 employees were discharged after the Thanksgiving holiday We agree with the Administra- tive Law Judge that this was an inordinate number of discharges and is further evidence of the Respondent's determination to punish its employees against the walls in order to leave a central passage open. Chemali also told a couple of employees giving pro- and anti-union talks to lower their voices. Finally, Chemali came to Alvarez, who was standing against the west wall of the hall and speaking to an estimated 100 employees, and told him to lower his voice; Alvarez, however, continued talking, as the Administrative Law Judge found, in a very loud tone. A few minutes later Chemali repeated his order but with no more success. Alvarez told the employees that Chemali was trying to quiet him but because there was freedom of speech he was going to keep on talking. A third time Chemali ordered Alvarez, without result, to lower his voice. Shortly thereafter the bell ending the lunch period rang and Alvarez returned to work. He was soon called out by Chemali, who asked him why he had not lowered his voice. Alvarez replied that he was trying to reach a lot of people. Chemali then told Alvarez he was discharged for "not doing what I asked you to." There is no question but that Alvarez was giving his prounion talk in an area and at a time all concede to have been appropriate for such activity. Conse- quently, we find in these circumstances Alvarez was engaged in a protected concerted activity at the time Chemali ordered him to lower his voice. It follows that, even though on company property, Alvarez was engaged in an activity Respondent had no right to limit absent some showing that the conduct sought to be restricted-here Alvarez' loud tone-was having some demonstrably disturbing effects on plant business or operations such as distracting employees, if any, who were at work during what was the noon break for others. However, there is no evidence and no contention that Alvarez' loud tone was creating a problem in any area of proper management concern and, in fact, it is not contended that he was discharged for any such reason. Rather, as stated, Alvarez was discharged solely for refusing to obey Chemali's order to lower his voice, a refusal Chemali for their union activity in view of Caballero' s and Rodriquez' reasonable explanation for their absence on the day after Thanksgiving, we affirm the Administrative Law Judge' s conclusion that they would not have been discharged but for the Union' s organizational efforts 3 Chairman Miller would not adopt the Administrative Law Judge's finding that the discharges of Hector Caballero and Roberto Rodriquez on November 29, 1969, for failing to come to work on Friday, November 28, 1969, the day after Thanksgiving, was unlawful The record shows that Respondent had a strict rule against employees being late for, or absent from work the day after a holiday and vigorously enforced the rule by discharging offending employees, even to the point on one occasion of discharging a supervisor for reporting late after a holiday, although his lateness was apparently caused by striking airline employees it appears that the union activity of Caballero and Rodriquez was minimal and that Respondent had no knowledge of any such activity by Rodriquez in view of the foregoing, the Chairman is of the opinion that there is insufficient basis to support the finding that the discharges of Caballero and Rodriquez were related in any manner to union activity Accordingly, he would dismiss the complaint as to them 202 NLRB No. 99 FARAH MANUFACTURING CO 667 equated with insubordination and, thus, with proper grounds for discharge. Under the Act, the manner in which an employee carries on his protected activities is not subject-save for limited exceptions not relevant here-to the whim, wish, or authority of his employer. Conse- quently, this is not a case of Alvarez' improper insubordination but rather one of Chemali's unlaw- ful interference with, and restraint and coercion of, Alvarez in the exercise of activities protected by Section 7 of the Act. We find that the discharge of Alvarez for refusing to comply with Chemali's orders to lower his voice violated Section 8(a)(1) of the Act.4 In view of this finding, we shall order that Respondent cease and desist from engaging in the conduct found unlawful and that it offer Luis Alvarez reinstatement and backpay in the manner provided for other unlawfully discharged employees in that part of the Administrative Law Judge's Decision entitled "The Remedy." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Farah Manufacturing Company, El Paso, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Amalgamated Clothing Workers of America, El Paso District Joint Board, AFL-CIO, or any other labor organization, by discharging employees because of union activities in its plants or because of giving testimony under the Act, or in any other manner discriminating against employees in regard to hire or tenure of employment or any terms or conditions of employment. (b) Maintaining and enforcing a broad no-solicita- tion rule precluding union solicitation in work areas or in other departments during nonwork time, and utilizing a change in colors of name tags to identify and interfere with employees soliciting for the Union in other departments during nonwork time. (c) Instituting and maintaining a practice of close surveillance of employees while at work and during nonwork time as to their conduct, their work errors, and their violation of company rules and procedures; and augumenting such close surveillance by assign- ing additional supervisors to engage in it, by confronting employees with Vice President Chemali as to each transgression, and by utilizing a recording of such transgressions as a pretext for discharge or other disciplinary action when such practice is instituted because Respondent's employees have engaged in, or are engaging in, union or other protected concerted activities. (d) Instituting or maintaining a rule restricting all personal conversations during work time when such rule is instituted because Respondent's employees have engaged in, or are engaging in, union or other protected concerted activities. (e) Instituting or maintaining a rule that a packer is to be discharged for a single error of packing an order without it being checked when such rule is instituted because Respondent's employees have engaged in, or are engaging in, union or other protected concerted activities. (f) Interrogating employees as to union activities or affiliation in a coercive manner. (g) Discharging employees for refusing to obey orders which unlawfully interfere with the employ- ees' engaging in union or other protected concerted activity. (h) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to the following named employees immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay that they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy": Ernesto Alfaro Manuel Montoya Luis Alvarez Juventino Morales Hector Caballero Manuel Pedroza Guillermo Chavez Guadalupe Pineda Clemente Escalante Mario Porras Jesus Espinoza Ramon Rios Gregorio Gutierrez Roberto Rodriquez Ruben Lucero Isaac Soto Ernie Marrufo Carlos Vera Gilbert Minjarez Jose Villagran (b) Make whole Johnny Rodriquez for any loss of pay that he may have suffered by reason of the discrimination against him from date of discharge to August 15, 1970, in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, 4 In view of our finding here we need not consider, as urged by the General Counsel, whether Alvarez' discharge also violated Sec 8(a)(3) 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Order. (d) Post at its El Paso plants in English and Spanish copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging employees and by changing working rules and procedures to interfere with and to discourage membership in the Amalgamated Cloth- ing Workers of America, El Paso District Joint Board, AFL-CIO: WE WILL offer the following named employees full reinstatement and pay them for the earnings they lost as a result of their discharges, plus 6- percent interest: Ernesto Alfaro Luis Alvarez Hector Caballero Guillermo Chavez Clemente Escalante Jesus Espinoza Gregorio Gutierrez Ruben Lucero Manuel Montoya Juventino Morales Manuel Pedroza Guadalupe Pineda Mario Porras Ramon Rios Roberto Rodriquez Isaac Soto Ernie Marrufo Carlos Vera Gilbert Minjarez Jose Villagran WE WILL pay Johnny Rodriquez for the earnings he lost from the date of his discharge to August 15, 1970, plus 6-percent interest. WE WILL NOT discharge or discriminate against any employee forjoining or supporting the above- named Union or any other union. WE WILL NOT discharge any employee for refusing to obey orders which unlawfully interfere with his right to engage in union or other protected concerted activities. WE WILL NOT maintain or enforce a rule prohibiting employees from engaging in union solicitation during nonwork time in work areas or in departments other than their own, nor will we use the color of the name tags to identify and interfere with employees soliciting for the Union in other departments during nonwork time. WE WILL NOT maintain a practice of very closely watching and following employees while at work or during nonwork time, nor will we discipline employees for the slightest mistake or rule infraction. WE WILL NOT restrict all personal conversations during work-time. WE WILL NOT institute or maintain a rule that a packer in the shipping department is to be discharged for a single error of packing an order without it being checked. WE WILL NOT coercively interrogate employees as to union activities or membership. WE WILL NOT unlawfully interfere with our employees' union activities. FARAH MANUFACTURING COMPANY, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, 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 compli- ance with its provisions may be directed to the Board's Office, 7011 Federal Building, U.S. Court- FARAH MANUFACTURING CO 669 house, 500 Gold Avenue SW., Albuquerque, New Mexico 87101, Telephone 505-843-2508. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case was heard in El Paso, Texas, on January 25 through February 5, 1971, February 16 through February 26, 1971, March 16 through March 19, 1971, March 29 through April 8, 1971, April 20 through April 30, 1971, and June 1 through June 4, 1971. The charges were filed by Amalgamated Clothing Workers of America, El Paso District Joint Board, AFL-CIO, on January 26, February 18, February 26, April 27, May 7, May 14, June 2, June 23, July 10, August 5, August 18, August 20, and October 27, 1970. The complaints, amended complaints, and orders consolidating complaints were issued on May 28, July 28, October 9, November 9, and December 28, 1970. The complaints allege that Respondent has violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act as amended, herein called the Act, by discriminatory discharges, layoffs, and reas- signments, and by engaging in surveillance, issuing restrictive rules, questioning employees, instructing em- ployees not to join or assist the Union, and isolating employees Briefs have been filed by the General Counsel, Respon- dent, and the Charging Party. Respondent also filed a motion to quash the brief of the Charging Party and bases his motion on the fact that the Respondent received a copy of the Charging Party's brief on September 22, 1971, in an envelope showing a postmark of September 20, 1971, and contends from this that the Charging Party's brief, if similarly dispatched to the Trial Examiner would not have been received by Monday, September 20, 1971, the date on which briefs were due. The Respondent also contends that no proof of service was enclosed with the copy of beef forwarded to the Respondent by the Charging Party The brief of the Charging Party was received by the office of the Division of Trial Examiners in San Francisco, California, at 9:08 a.m. on Tuesday, September 21, 1971, and a certificate of service was received at 9 a.m. on September 22, 1971. The certificate of service states that a copy of the brief was mailed to Respondent on September 19, 1971 (Sunday), yet, as previously mentioned, Respon- dent avers that it was postmarked September 20. In the Charging Party's opposition to Respondent's motion to quash, it is set forth that copies of the Charging Party's brief to the Trial Examiner were also mailed on Septembers 19, 1971, but the envelope containing said briefs was not retained by the receiving office. I do not interpret Section 102.42 of the Board's Rules and Regulation as requiring that a copy of a certificate of service be furnished by one party to another, although it is required to be furnished to the Chief or Associate Chief Trial Examiner. Section 102.42 provides that "three copies of the brief or proposed findings and conclusions shall be filed with the trial examiner, and copies shall be served on the other parties, and a statement of such service shall be furnished." (Emphasis supplied.) The purpose of a brief is to aid a trial examiner in his analysis and evaluation of the testimony and evidence presented in the hearing before him. However, to avoid breeding laxity by litigants in the filing of timely briefs with trial examiners and in view of the fact that the brief of the Charging Party was not timely received, it is rejected and will not be considered.' Motions to correct the transcript were filed by the General Counsel and the Charging Party. Limited motions in opposition were filed by the Respondent. Insofar as the motions to correct the transcript are not opposed, they are granted. As to the items of the motions to correct that are opposed, I make the following ruling: The General Counsel's motion to correct is granted as to the following items: page 676, line 16; page 785, line 19; page 3481, line 22; page 3567, line 19; page 3954, line 11, page 3996, line 16; page 4956, line 7; page 6269, line 9; and page 7082, line 9. The change of names requested at page 3489, line 22, at page 6090, line 1, and at page 6192, line 9, is not granted, based on the evidence that is before me on the matter. The identity of the persons involved in this requested change does not appear to be significant to a decision on the issues herein. The word "range" at page 3139, line 22, is hereby changed to "rang." The motion to change the word "predicate" at page 6299, line 15 to "pregnant" is denied. The motion of the Charging Party to change the transcript is granted as to the following contested items: page 479, line 6; page 479, line 7 The motion is denied as to the following contested items: page 26, line 3; page 81, line 18; page 138, line 21; page 223, line 25; page 308, line 1; page 745, lines 13 and 16; page 746, lines 3, 5, 11, and 12. The word "so" at page 223, line 24, is hereby changed to "also." On September 14, 1971, a point motion of the Charging Party and the General Counsel to amend the transcript herein was received, and on September 24, 1971, Respon- dent filed a motion in opposition thereto, contending that the subject of the point motion was an exchange between witnesses and attorneys that occurred off the record. The joint motion is granted; the Charging Party's request to continue on the record was granted. Upon the entire record and my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT 1. JURISDICTION Farah Manufacturing Company, Inc., Respondent here- in, is a Texas corporation with principal office and place of business in El Paso, Texas, where it is engaged in the business of manufacturing and distributing men's and boys' pants. It has three plants in El Paso, known as the Gateway plant, the Third Street plant, and the Paisano plant. During the year 1970, Respondent sold and shipped I Stewart-Warner Corp, 94 NLRB 607, Aircraft, 110 NLRB 2162, Western Wear, 87 NLRB 1363 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD goods and materials valued in excess of $50,000 directly from its plants in El Paso, Texas, to customers located outside the State of Texas. During the same period of time, Respondent purchased and had delivered to its places of business in El Paso, Texas, goods and materials valued in excess of $50,000 which were transported directly from places located outside the State of Texas. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Amalgamated Clothing Workers of America, El Paso District Joint Board, AFL-CIO, herein referred to as the Union or the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether the Respondent discharged employees, laid off employees, or reassigned employees because of their union activities or for the reasons assigned by the Respondent. 2. Whether Respondent interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7 by engaging in surveillance of employees, interrogating employees, issuing more restrictive working rules, instructing employees to cease and desist from union activities, and isolating employees. B. Introductory Statement Respondent has plants in three locations in El Paso and plants in other cities in Texas and New Mexico. Only the El Paso facilities-the Gateway plant, the Third Street plant, and the Paisano plant-are involved in this case. There are approximately 6,800 employees employed by Respondent in El Paso, with the Gateway plant being the largest of its facilities there and the location of most of the events related herein. The manufacturing operations at the Gateway plant are divided into three principal functional areas: phase I, shipping; phase II, sewing; and phase III, cutting The main building is over 2,000 feet in length and between 400 and 475 feet in width. The shipping depart- ment is at one end and occupies an area that is 800 feet by 400 feet. Respondent's administrative offices are also in this area. Separating this area from the rest of the plant is a central corridor or hallway running through the building, which hallway is approximately 400 feet in length and 25 to 35 feet in width. Not far from the hallway is a clinic and a large cafeteria. Union organizational activities by Respondent's employ- ees started in September 1969. These activities were instigated by employee Adan Gonzales who worked as an order puller in the shipping department (phase I), Gateway plant, and the organizational activities commenced in that department. The shipping department consists of approxi- mately 315 to 320 employees at the time of hearing and in the fall of 1969 it had approximately 275 to 300 employees. In this department, there are 201 units of shelves on which finished pants are stored according to style and type, color, and sizes. In the fall of 1969, there were 190 units of shelves. Each of these units is 88 feet long, 4 feet, 7 inches wide, and 21 feet high, and contains seven different shelves which are spaced 3 feet apart. The walkways between shelves are 3 feet, 10 inches wide. When finished pants are brought to the shipping department, they are separated by lot number, color, waist size, and length. This is done by employees known as separators. The pants are then placed on the shelves. An order puller takes the pants from the shelves to fill orders that have been assigned to him; he places them on carts and takes them to another area of the shipping department for packing. Packers prepare the order for shipment; checkers check the orders. Orders are then packed in boxes, weighed, and loaded on trucks for shipment. Because of the variety of styles, fabrics, colors, waist sizes, and length sizes, there are approximately 50,000 different orders that can be placed by a customer. Errors by order puller-such as wrong shade or color, wrong waist size, or wrong length-occur frequently; and, in fact, Respondent now employs two "runners" to assist packers by going to the shelves to correct errors that involve only a few pairs of pants. C. Unfair Labor Practices Found in Prior Case Following a union meeting on October 15, 1969, Jose Serna, one of the supervisors in charge of the shipping department, interrogated employees Adan Gonzales and Luis Alvarez as to their problems and as to what was bothering them in an effort to induce them to open up to him with information regarding their union organizational activities and interests. On October 21, 1969, Respondent discharged Adan Gonzales because of his union activities. On October 22, 1969, the charge alleging this conduct as unfair labor practices was filed; hearing was held in January 1970; and the Board's Order was issued on December 31, 1970.2 Also on October 22, 1969, the Union sent Respondent a telegram naming 10 employees as members of its organizing committee. On October 23, the Union sent Respondent another telegram adding the names of 28 employees to its organizing committee. Similar telegrams were sent on October 29, November 26, December 12, 1969, and January 8 and May 7, 1970, giving names of 136 employees in all as members of the Union and its organizing committee. The complaints herein allege as unfair labor practices the discharges of 32 employees and one suspension that occurred from November 6, 1969, to November 8, 1970. On October 22, 1969, the day of the Union's first telegram, members of the organizing committee started soliciting openly on behalf of the Union, they did this throughout the Gateway plant for a few days, until it was stopped by Respondent in all work areas. It was permitted to continue in nonwork areas, described as being the central hallway in building 1, a corridor in building 3, the cafeterias, and the parking lots. The Board found in the prior case that "Respondent 2 Farah Manufacturing Co, 187 NLRB 601, enfd 450 F 2d 942 (C A 5) FARAH MANUFACTURING CO. 671 unduly restricted the organizational rights of employees to engage in oral union solicitation 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." Joe Chemali , Jr., vice president and a director of Respondent, testified in the instant case that these rules are still in effect and that employees are not to distribute union authorization cards in work areas at any time, but may do so in the "cafeteria, main hallway, parking lot" during nonwork time. D. Enforcement of Respondent's Broad No- Sokcitation Rule The rules against solicitation in working areas and in other departments on nonwork time , which, as noted in paragraph C, the Board found to have been illegally promulgated , have been enforced from time to time during the period of union organizational activities . Some inci- dents of enforcement are as follows: In the latter part of October 1969, President Farah came to where employee Guillermo Chavez was working, looked at his badge, and then went to the bulletin board where the Union's telegram naming Chavez as a member of the organizing committee was posted . That afternoon Farah, with Supervisors Norman Ekery and Henry Soza, the two top supervisors in the shipping room , came to Chavez and told him that he was not to go into the cutting room. In early March 1970, Joe Chemali, in the presence of Erich Goeldner, supervisor of the cutting room, told employee Johnny Rodriquez that he was not to distribute union buttons or authorization cards in a work area. I do not credit the testimony of Rodriquez that Chemali also told him he could not possess union buttons or cards "inside the walls of Farah ." Cards and buttons, with the knowledge and permission of Respondent , are possessed and distributed by employees in the heretofore mentioned designated nonwork areas. In April or May 1970, Erich Goeldner, in the presence of Supervisor Victor Chemali (brother of Vice President Joe Chemali), told Rodriquez that he could not hand out union cards or anything like that in a working area. On April 23, 1970, employee Ruben Lucero was reprimanded by Vice President Chemali and Department Supervisor Ernest Goeldner for distributing union buttons in a work area. Lucero told them that he thought he could do this during the breaks and at lunch. As noted in his production ledger by Goeldner, "He was again told he could not engage in this type of union activities in a working area at any time." I equate union buttons with union cards and not union literature . Although an employer may not prohibit the distribution of union cards and union buttons in a working area on nonwork time, the distribution of union literature in a work area may be prohibited at any time to avoid the possibility of cluttering the work area.3 On May 4, 1970, Edwardo Munoz, a packer, was seen attempting to distribute union cards during the lunch period at the packing tables and was told by Joe Chemali that "he could not distribute in working areas at any time." An entry about this incident and reprimand was made on the production ledger of Munoz by Supervisor Norman Ekery. In May 1970, employee Elvia Corral distributed a union authorization card and a union pamphlet to a fellow employee at the Paisano plant in a working area during a break period. She was told by Plant Supervisor John Isaac not to distribute those things "in the working area during working time, or in the lines." She and a fellow employee then went to an area where there were no sewing machines to pass out the union cards and literature . None of the employees passing by took any of the material being offered, and Corral and the other employee went into a restroom . When they came out, they were again ap- proached by Isaac and asked if they understood what he meant by working areas. Corral replied that she under- stood it to mean "where the machines are." Isaac stated, "No, you can do it outside or you can do it in the cafeteria. You can talk all you want to, but you cannot do it in the working areas." The next day, Corral spoke to Isaac again about the matter and told him the Union had given them a pamphlet which stated they had the right to distribute union cards in a working area. He told her that she could not do it. One of her coworkers asked him about the restrooms, and he replied that he did not know anything about that. A short time later, Isaac asked Victor Chemali if it was permissible to pass out union cards or literature in the restrooms . Victor Chemali referred him to Joe Chemali. Isaac then asked Joe Chemali about it. Also, employee Enrique Alvarez asked Joe Chemali about it. Chemali told Alvarez that he was not stopping him from distributing in the restroom, but all that he could tell him was that the restroom was in a working area. He further told Alvarez that he could not be in the restroom and that he was not going to stop him until he found out from his counsel if he could stop him and then he would . Chemali testified that his counsel told him to dust leave it alone , and that therefore he never did tell anyone yes or no on the matter. One or two restrooms are in the hallway and not in a working area ; the others are, however. Although neither Joe Chemali nor Isaac explicitly told employees that they could not distribute union cards in restrooms, from Chemali's statement to Enrique Alvarez that the restroom was in a working area, and Isaac's statement to Corral immediately after she came out of a restroom that she could distribute outside or in the cafeteria, coupled with the fact that Respondent has promulgated and enforced a rule that employees are not to distribute union cards in working areas the meaning is quite clear that union authorization cards are not to be distributed in those restrooms that are located in working areas. I note that Corral also had union literature to distribute ; as to the distribution of union literature in working areas, this Respondent could prohibit 4 Respondent raises the point that under the circum- stances in this case of general and widespread and daily 3 Stoddard-Quirk Mfg Co, 138 NLRB 615 4 Stoddard-Quirk Manufacturing Co, 138 NLRB 615 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distribution of union cards, as did occur in the central corridor, this type of distribution was tantamount to the distribution of literature and that it could be prohibited in working areas on the same basis that literature could be prohibited-to avoid cluttering the area with discarded paper; and the Board in footnote 3 in its prior decision in Farah Manufacturing Company indicated that wholesale distribution of union authorization cards was distinguisha- ble from the normal type of card distnbution which contemplates signature upon receipt and return of card to solicitor. Respondent , however, did not make any distinction in its broad no-solicitation rule as to types of distribution; all solicitation and distnbution of union cards in working areas is prohibited. I find that Respondent by repeatedly enforcing its broad no-solicitation rule covering working areas and restrooms located within working areas has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act In April or May 1970, Johnny Rodriquez, after getting a drink of water during working time, motioned and hollered to employee Santiago Guerra, an opponent of the Union. Supervisor Ben Donathan inquired of Rodriquez as to what he wanted and Rodriquez replied that it was personal. Donathan told him to take care of his personal business on his own time. I do not credit Rodriquez's version that he was told to keep his union activity "outside the plant." Rodriquez's version is inconsistent with the fact that union activity was permitted inside the plant in certain areas and at certain times; it was not permitted , however, inside working areas. E. Changes Made in the Shipping Department Procedural and other changes have been made from time to time by Respondent in the shipping department and throughout its plant as operations have expanded and as new and improved methods are thought of. This is normal and expected in the operation of any business. The General Counsel contends, however, that some of the changes that were made during the Union's organizational drive were instituted to thwart the union activities of employees. Starting in the first of November 1969, Vice President Chemali began spending much more time in the shipping department than he had done theretofore. Previously, he was in this department infrequently. In November 1969, he started spending 3 and 4 hours a day there, and he continued to do this for a period of 4 or 5 months. Thereafter, he averaged about 1 hour per day in the shipping department. He testified that the reason he began doing this was because of the conditions he discovered to exist in this department which came to his attention during the annual inventory conducted during the last several days of October 1969. He testified that, although errors had been found in prior years in the shelving and location of pants, in 1969 he found the situation to be worse. He cites as illustrations of this that three stacks of pants were found that had been slashed with a knife; one complete shelf was stacked with the wrong lot number, three missing 5 The employee was Emilio Casillas who was reprimanded for laughing and joking and disturbing employees by Joe Acuna, an employee who was serving as a group captain of an adjacent group of counters In their order sheets were found placed between layers of pants; Chemali had to talk to at least three employees about their conduct, one of whom had cursed an employee who was serving as group captain.5 Two employees were sent home because they made one error after another . One or two employees told him they had been out all night and appeared to have hangovers and were sent home. Chemali testified that "all of this led me to believe that I needed to do more work in shipping as to training and so forth." Also, at the same time President Farah started coming into the shipping department on a daily basis whereas prior to November 1969, his visits there had been very infrequent. Some of the changes instituted in November 1969 and thereafter are discussed as follows: 1. Two supervisors added to the shipping department ; close observation of employees; prohibition of talking The shipping department has an office on a raised platform located in the vicinity of the packing tables. Prior to November 1969, there were seven supervisors in this department: Norman Ekery, Joe Serna, Henry Soza, Arturo Aguirre, Richard Ochoa, Roberto Mata, and Ernesto Moreno. Ekery and Serna had overall supervision. Mata and Moreno worked with the packers. Aguirre worked with the truck loaders on the dock. Order pullers were supervised by Ochoa, Aguirre, and Soza, but no supervisor was stationed in the shelving area itself . Miguel Loya, a leadman , worked in this area , he became a supervisor in July 1970. In January 1970, Serna was transferred out of the shipping department and Soza took his place as one of the overall supervisors. In April 1970, Ochoa was terminated In the first of November 1969, two supervisors were added to this department: Abed Esman, who transferred from the cutting department , and Henry Meili, who was training to be a supervisor and worked in different areas of Respondent's operations. Meili became a supervisor on the first of December 1969. Vice President Chemali gave as the reasons for this increase in supervisors the fact that there were many shelves and no supervisor assigned to work in the area of the shelves ; that there was the temptation to play around and whistle and holler. He testified , "There was no telling what was going on in those shelves. I dust couldn 't imagine myself what was going on in the shelves. They are just so big They are over 15 feet high and 5 feet wide and there are 200 of them and no supervision. A new employee would get in there and if he happened to get with another employee who was teaching him not to take an interest in his work, this type of thing, I just didn't like this." There were approximately 75 to 80 order pullers and approxi- mately 27 employees who separated the finished pants according to lot number, color, and sizes and placed them on the shelves. Esman and Meili kept close tabs on the employees working in the shelving area. They walked around among exchange, Casillas called him, in Spanish, words translated into English as either son-of-a-bitch or brown-noser The subsequent discharge of Casillas is covered in par H(16) FARAH MANUFACTURING CO. 673 the shelves constantly to check on discipline, to see if the employees were wasting time, engaging in excessive talking or otherwise not being attentive to their duties, and to see if the employees were adhering to plant and department rules, one of which was that order pullers were not to correct their own errors until it had been called to the attention of a supervisor or checker. This was a new rule put into effect in November 1969. This rule is discussed in the next numbered paragraph (Par. E, 2). Meili on several occasions followed and checked on employees in this regard. On some occasions, he found that the errors had been initialed by supervisors and on other occasions that they had not been. He also followed and stopped some packers to ascertain if a supervisor had initialed the packing slip on which they were working. Esman talked to employees about bunching up, excessive talking, whistling, and banging of carts This close and constant supervision was very noticeable to the pullers and the stockers working in the shelving area. Guillermo Chavez testified that after October 1969, he would observe Meili standing near him while he was working in the shelves and again when he would move to another part of the shelves. He would see Meili just standing there looking at him, this went on for some time. Meili testified that on one occasion he followed Chavez to the west end of the shipping area; that he had seen Chavez taking some pants from a truck, and that "I just wanted to find out what he was doing up there. So I followed him." He asked Chavez what the problem was and what he was looking for. Chavez then explained what he was doing and Meili left. On one occasion when Chavez was being reprimanded by Chemali for his mistakes, he complained to Chemali that Meili had been following him and that for this reason he could not concentrate on his work. On another occasion when Chemali was speaking to Chavez about his "pressur- ing" employees to join the Union, he told Chavez not to talk to employees about anything other than business during working time. On one occasion in about March 1970, Esman observed Ernesto Alfaro stopping and speaking with employees that he met, about six in number, as he proceeded through the shelving area and on into the restroom . Esman followed behind Alfaro and, when he went into the restroom, he called Meili . The supervisors have been instructed to have another supervisor present when reprimanding an employ- ee. When Alfaro came out of the restroom, Esman told him that he had noticed him doing a lot of excessive talking with other employees and that this was not necessary Alfaro told him that he was just greeting them. He became angry. He was told that he could greet other employees but was not to speak to anyone about anything except business He testified that at that time he did not know who Meili and Esman were. The next day, Chemali talked to Alfaro and told him that Meili and Esman were supervisors in the shipping department and that they were there to help him and that he should cooperate with them He agreed to do so. Chemali told Alfaro not to bother anyone and to see if he could do a lot better in his work. In the first part of 1970, Esman observed Jose Villagran walking through the shelves and it did not appear to Esman that Villagran was going to any particular shelf. Esman followed him as he walked past 25 or 30 shelves. Villagran was seeking employee George Lopez about an order he had that was similar to that of Lopez . When he located Lopez, he asked him about the order , and at that moment Esman approached them and asked what they were doing. Villagran said he was trying to get some information from Lopez . Esman then looked at his order and told him that if he needed any help in pulling an order that he should ask Supervisor Meili ; that he was not to discuss matters with other employees during working time as it would take time away from the work of other employees Esman called Meili. On one occasion, employee Guadalupe Pineda stopped to ask another employee about a type of pants. Meili came in between them and asked Pineda if he had a problem. Pineda said that he was just talking about the stock. Meili said, "If you want to ask anything, ask me." On another occasion on January 17, 1970, Esman observed Villagran in what he considered to be a violation of a company rule Villagran had a newspaper on his clipboard on which his orders were kept. Esman called Henry Soza , one of the supervisors in charge of the shipping department, and asked him about this point. Soza told him that there should not be anything on the clipboard except orders . Esman then called Chemali and told him that Villagran had the newspaper on his clipboard . Esman , Chemali, and Soza went to Villagran and he was reprimanded for this and the incident was recorded on his production record . He was told to leave his newspaper in his car or coat. Other employees , including Jesus Espinoza, Ernesto Marrufo, Mario Porras, Isaac Soto, and Manuel Bonilla testified about reprimands for talking during working hours, and that such reprimands were not given for this prior to the advent of the Union . Respondent acknowl- edges that starting in November 1969, employees were reprimanded for "excessive talking" and that this had not occurred prior to November , but contends that this was because of the lack of adequate supervision in the shelves prior to November. In February or March 1970, Meili began training some new order pullers. He instructed them to call him about any problems they might have and not to ask another employee about the matter because he might mislead them. On one occasion in December 1969, while Meili was walking about in the shelves , he observed Manuel Pedroza going to a packing table and not taking a truck of pants. He followed Pedroza to the table and asked what was the problem. The packer told him that Pedroza had forgotten a color. Meili asked the packer if a supervisor had been called and was informed that he had not been. Meili then called Supervisor Aguirre. On another occasion, Meili followed Guadalupe Pineda to a packer's table. Pineda had a stack of pants over his arm When Meili got there, Pineda showed him that a supervisor had initialed the packing slip that he was working on . Meili testified that he stopped some packers who were in the shelving area to see if a supervisor had authorized their being there. This was in enforcement of 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the new rule previously mentioned that pullers were not to correct errors until it was called to the attention of a supervisor, also packers were not to correct an order of a puller until and unless it had been called to the attention of a supervisor. 2. New work rules; recording of errors As referred to in paragraph E(1), a change that Chemali made in the shipping department in November 1969 was that all errors made by order pullers and by packers were to be called to the attention of a supervisor so that it could be discussed with the employee involved and notations regarding it could be entered on the production records of employees . Prior to this, a packer could and usually would call a puller directly to correct any error in his order; the new procedure was that the packer must first call a checker or supervisor who would then call the puller about the error. Previous to this new procedure , it was primarily only large errors or errors that customers caught that the supervisors gave any attention to. Chemali testified that he wanted a method by which he could find out who were making errors, why the errors were being made, and a system whereby credit could be given to employees who made few errors. Also Chemali told the supervisors that, when an employee made an error , he wanted to talk to the employee himself . He was called in and talked to each employee on all errors for a period of at least 3 months from the time this procedure was instituted Errors that were found to be mistakes of the employee were recorded in his production record. In February 1970, Respondent started using two employ- ees designated as runners to correct minor errors in an order found by packers . Half of the packers are under the supervision of Roberto Mata and the other half under Ernesto Moreno. One runner is assigned to each group. The errors corrected in this way usually involves only I or 2 or 3 pairs of pants, but could be as many as 10, depending on the order, as where the order was a large one involving many sizes and the puller made a mistake of pulling one size for another on one item. In January 1970, President Farah invoked a rule that if a packer packed a single order without it being checked first by a checker, he was to be discharged . This rule continued in effect until the latter part of April 1970. Pursuant to it, eight employees were terminated during this period; one, Manuel Montoya, is named in the complaint as a discriminatee. His discharge is discussed in paragraph H, 3. The rule was then revoked as being too harsh. 3. Employees required to wear identifiable name plates Prior to January 1970, all employees in the Gateway plant, except for the shop employees , wore name plates that were black and white , and, in fact , all employees in Respondent's plants in El Paso wore name plates that were black and white. Name plates of shop employees were green and white. 6 As set forth in pars C and D, the broad no-solicitation rule of Respondent precluding solicitation in other parts of the plant on nonwork time constitutes an unfair labor practice In January 1970, some female employees in the pressing area complained that some male employees were bothering them and were "evidently" using some bad language Some supervisors went to some of the male employees in the pressing area and talked to them about this incident; they denied that they were the ones who had been bothering the girls and reported that it had been employees from the shipping department. Respondent has a rule that employees are not to go into other departments than their own during work or nonwork time unless it is connected with their work 6 The only way the girls had identified the boys "bothering" them was by the color of their name plates, which were black and white. Respondent then instituted a change in color of name plates so that employees in the shipping and other departments could be identified by the color of their name plates Those in the shipping department were given blue and white name plates and those in the cutting department were given brown and white name plates . Those in sewing continued to use black and white and the employees in the shop continued to use green and white . Summer employees were given orange and white name plates . Employees in Respondent's other plants in El Paso continue to wear black and white name plates. 4. The incident of December 12 On December 12, 1969 , Luis Alvarez called a meeting of a group of employees in the shipping department to be held at a designated place in the shipping room during the afternoon break period . The meeting was for the purpose of planning a party. Shortly after the group convened, Guillermo Chavez saw Supervisor Serna use the telephone and, shortly thereafter , President Farah , Vice President Chemali , and Supervisors Serna, Soza, and Ekery ap- proached the group of employees . There were about 16 employees at the meeting, and the supervisors started writing down their names . The employees continued with their meeting. The bell rang for the end of the break period and the employees started to return to their work stations Farah asked them to wait a moment. As soon as all names were taken , they were told they could leave The only comments made to them by any of the supervisors were as to their name plates and about their leaving the meeting Farah told Alvarez that he could go as he knew him. Manuel Montoya was asked where his name plate was, as he did not have one on . He explained that he left it at home, but the guard had permitted him to enter the plant Chemali testified that Respondent has a policy or rule that employees may not "throw a party or have a shower or something" in a work area during lunch or break periods. F. Conclusions as to Paragraph E It has already been determined by the Board that union instigator Adan Gonzales was discriminatorily discharged on October 21, 1969, and that shortly after overt solicita- tion for the Union began on October 22, 1969, Respondent unlawfully restricted union solicitation and activities by employees. It prohibited union solicitation in any working area of the plant during nonwork time and prohibited FARAH MANUFACTURING CO. 675 employees from going into other work areas to solicit during nonwork time. These prohibitions have continued in effect and have been enforced and called to the attention of employees. As pointed out in paragraph E, Respondent made other significant changes in its operations and procedures shortly after union activities became known and which also was shortly after its annual inventory taken during the last few days of October 1969. The issue is whether or not certain of these changes were made (1) because of and to thwart union activities, or (2) to improve and correct operational deficiencies found to exist when the inventory was conducted. Thus, which was the motivation for or proximate cause of the new rules and procedural changes? Or, can it be determined that the changes complained of, or any of them, would likely have been instituted irrespective of any union activities of employees? Taking first the change in color of name tags. It came into being following an incident where some unidentified employees, later reported to have been from the shipping department, were visiting and "bothering" some female employees in another department during nonwork time. There is no evidence as to what these employees were doing in the other department other than "whispering at them and evidently using some bad language"; but the change in the name tag colors facilitates the enforcement of and exists as a corollary to Respondent's illegal rule that employees may not go into other work areas during their nonwork periods to solicit on behalf of the Union. Used for this purpose, it constitutes interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act In the first of November 1969, Respondent took measures to tighten up on employees in the shipping department. Two additional supervisors were brought in who primarily roamed about the working area of the shelves checking on employee performance and conduct. All errors made by order pullers and packers had to be called to the attention of a supervisor and the employees talked to about the error Also, Vice President Chemali participated in the confrontation with employees about their errors. The practice of pullers and packers correcting their own errors without notification to supervision was discontinued. Employees were told not to talk with other employees while they were at work, except as to greetings, and to discuss their work or problems only with their supervisors. Vice President Chemali, who, previous to November 1969, had been in the shipping department only infrequently, started spending 3 or 4 hours a day there and continued to do this for 4 or 5 months. President Farah started coming into the shipping department on a daily basis. During the inventory in the latter part of October 1969, President Farah told employee Manuel Pedroza, an order puller, that someone was telling him lies, that if he wanted to let him go he could do so and no one could protect him.7 On December 12, 1969, employee Luis Alvarez called a group of about 16 employees to meet with him during the afternoon rest period in the shipping department to discuss plans for a party While it was in process, they were converged upon by President Farah and Vice President Chemali and three other supervisors, and Farah required the employees to remain there after the bell had rung so that the supervisor could complete a recording of their names. In January 1970, President Farah took additional measures to tighten up on employees by requiring that a packer be discharged for a single error of packing an order without it being checked. At the time the rule was put into effect, Farah stated to Supervisor Soza and Serna that he had been getting too many complaints from customers about orders going out wrong. Farah did not testify and there is no evidence regarding the customer complaints. The rule was abandoned in the latter part of April 1970 as being too harsh, after eight employees were terminated because of it. In view of the fact that Respondent had recently discriminatorily discharged the instigator of the Union, had illegally interrogated him and employee Luis Alvarez regarding union activities, and had illegally restricted union solicitation in the plant, and in view of the fact that the changes and restrictions made in the shipping depart- ment, as set forth above, were of a nature that restricted and restrained employees in their union activities, and in view of the timing of these restrictions to coincide with the advent of the Union's organizational drive and Respon- dent's unfair labor practices mentioned above, I find from a preponderance of the evidence that Respondent's motivation for these changes was the union activities of the employees in the shipping department. The augmentation of the supervisory staff in the shipping department to provide Respondent with almost constant observation of employees while at work and the unnatural- ly close surveillance of employees by Supervisors Meili and Esman is conduct calculated to put employees in fear of their jobs. This is in the same vein as the confrontation of employees by a group of supervisors including Vice President Chemali on each error committed. Chemali and Soza both testified that the work of an order puller is the hardest job in the shipping department and that errors are commonplace; in fact, later, two employees were assigned to be runners to correct minor errors uncovered by packers and checkers. Errors by order pullers were certainly not something learned by Chemali during the inventory. I find that the close surveillance of employees by Meili and Esman, the sudden and continuous presence of Vice President Chemali in the shipping department for a total of 3 or 4 hours a day for a period of 3 or 4 months, the close surveillance of errors of order pullers, packers, stockers, separators and other employees, and the change in work rules and procedures to bring this close surveillance about and the change in the work rules in January 1970 to the effect that packers who packed a single order without it being checked would be discharged was done to interfere with, restrain, and coerce employees in the exercise of their rights under Section 7 of the Act. I find the same as to the surveillance of the meeting of employees on December 12, 1969, and as to the undue restriction on talking during working time prohibiting all personal exchanges except T This incident is covered in para H, I. Manuel Pedroza Discharged December 16, 1969 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD greetings and requiring employees to ask questions of supervisors only.8 There is considerable evidence as to a variety of changes in work practices in the shipping department, but, as to changes made other than those discussed herein, I find that they either fall into the category of changes that would normally be made irrespective of union activities or of changes of dubious relationship to the union activities of employees.9 The contention is made and there is testimony from Gilbert Minjarez to the effect that Respondent restrained and coerced union adherents by requiring them to move to the north sector of the central hallway to deliver speeches. I find that Respondent moved all speechmaking, both by union adherents and by union opponents, to the north sector of the central hallway. This was done so that there would be less disturbance to the office workers in Respondent's administrative office I find no unfair labor practice in this regard. It is also contended that Respondent cautioned employ- ee Xavier Villanueva not to pass by the work station of Luis Alvarez and that this constituted an isolation of a union adherent and an illegal interference. On one occasion, Villanueva had occasion to go to the administra- tive offices of Respondent on business and in so doing he went by way of "store returns," where Luis Alvarez worked. Supervisor Serna asked him if he had any business in store returns. Villanueva answered that he had no work in that area, that he went that way to greet Luis Alvarez. Serna told him that he should take a direct route when he needs to go to the administrative offices and not to pass through store returns. I find this incident to be of minor consequence and that it does not constitute a sufficient basis for a finding of illegal interference, restraint, or coercion. It is also contended that employee Ruben Lucero, being told to call his supervisor or a pusher when a bundle or portion thereof is missing, and Johnny Rodriquez, being placed in an obscure work booth, were attempts to isolate these union adherents. The instructions given to Lucero was given to all bundle boys; the booth that Rodriquez was placed in was a training booth and happened before he became active on behalf of the Union and, further, he was moved from that booth after a short time to a booth that was closer to his materials and this was done at his request. I find that the evidence is insufficient to find an illegal isolation of union adherents. G. Interrogations by Supervisors Aguirre and Moreno In January 1970, many of the union employees started wearing union buttons. On one occasion, Supervisor Aguirre looked at the button worn by Ernesto Marrufo and asked Marrufo the reasons the employees were trying to get the Union in. Marrufo replied that the employees 8 Tom Wood Pontiac, Inc, 179 NLRB 581, enfd 447 F 2d 383 (C A 7), Retail Store Employees Union, Local 444, 161 NLRB 1358, Pines ofAmerica, 178 NLRB 376, Ridge Growers, Inc v NLRB, 211 F 2d 752 (C A 5) 9 Examples of changes that fall in this category are change from the "buddy" system to a central distribution system, the separation and specialization of the jobs of second separators and stockers and the job of wanted to better themselves. Aguirre told Marrufo in Spanish that "those of the Union are an easy thing to Farah." (Son lonches los de la Union para Farah.) I do not find that this incident constituted illegal interrogation or a threat, although Marrufo testified that Aguirre' s statement to him meant that Farah was going to get rid of union adherents. In February 1970, employee Gregono Gutierrez was talking with employee Ernesto Alfaro. Shortly after this, Supervisor Aguirre approached Gutierrez and asked what Alfaro had said to him. Gutierrez replied that Alfaro told him something about the orders. Aguirre asked if Gutierrez had signed a union card. Gutierrez replied that he had not. Aguirre then told him "the Union bit is no good, don't sign." I find that Aguirre's interrogation of Gutierrez about his union affiliation constituted interference, restraint, and and coercion within the meaning of Section 8(a)(1) of the Act. His statement about not joining the Union, independ- ent of the interrogation, however, is a statement of position and recommendation and not coercive. In March 1970, on the first day of employment of Richard Valenzuela, Supervisor Aguirre explained to him the company rules and procedures and facilities . Valenzue- la told him that he knew the Union was trying to organize Farah and he asked if it was okay to sign a card. Aguirre answered, "We expect you not to join or support it." Valenzuela and Aguirre disagreed in their testimony as to who brought the subject up, but Aguirre testified that he did tell Valenzuela not to sign a union card, and I accept his version of the conversation. Since Aguirre's statement came as an answer to an employee's inquiry and is not accompanied by any threat or promise, and is a statement of Respondent's preference or position, I find that it does not constitute a violation of the Act.10 Valenzuela also testified that in the last part of June 1970, during working hours, he was picking up some union buttons at his packing table and was told by Supervisors Moreno and Soza that there would be no distribution of union buttons during working hours and that he should have his mind on his work and not wasting time. I find no violation of the Act in this incident. H Discharges in the Shipping Department Related to Work Performance and Work Rules The complaints allege that Respondent discrimmatorily discharged 31 employees and suspended one at the Gateway plant during the period from November 6, 1969, through July 17, 1970, and discharged one employee at the Paisano plant on October 8, 1970. Twenty-five of these were employed in the shipping department at the Gateway plant. Generally the reasons assigned for the discharges fall into five categories: (1) work errors, (2) low production, (3) failure to comply with company rules or instructions of supervisors, (4) misconduct, and (5) absenteeism or lateness. Discharges related to absenteeism or lateness and weighing and stenciling of cartons for shipment, the practice of having supervisors train new employees rather than it being done by other employees, the requirement that order pullers sign or initial their orders 10 McQuay-Norris Mfg Co, 157 NLRB 1661, Henry I Siegel Co, 143 NLRB 386, enfd 328 F 2d 25 (C A 2) FARAH MANUFACTURING CO. 677 misconduct are covered in sections J and K of this Decision. In 1969, a total of 64 employees were discharged from the shipping department with reasons assigned grouped in the following categories: Number Discharged and Reasons Assigned 1-late: not punctual 14-absenteeism 8-absent after holiday or weekend 2-fighting 2-gambling on the job 1-weak injured knee; may be reinjured 1-smelled heavily of alcohol; absent often 3-negative attitude-does not like what he is doing, will not take care of equipment, very slow worker 8-would not follow clinic procedures 3-no aptitude for this type of work 6-would not or unable to follow instructions, and/or poor worker or poor production, and/or does not like what he is doing. 1-mistakes; had been cautioned several times about his mistakes: Manuel Pedroza, a discnminatee herein, December 16, 1969. 14-production problems, with dates, names and specific reasons as follows: (In this and following lists, names of alleged discrimmatees are italicized.) Dates, Names, Reasons Assigned February 14-Eddie Estorga-Very poor and slow worker. February 28-Jesus M. Bnto-Very slow worker. February 28-Edward E. Jurado-Very slow worker April 24-Francisco Lopez-Very slow worker. April 25-Frank J. Ramos-Unable to do his work. April 25-Ignacio Moreno-Unable to do his work. May 16-Nicolas C. Niglio-Very slow worker; no aptitude for this type of work. May 20-Manuel Avila-Very slow worker. August 25-Jose R. Pedroza-Slow worker. October 7-Rogelio M. Guillen-No aptitude for this kind of work. October 21-Adan Gonzales-(Discrimmatee in prior case.) November 3-Robert J. Santos-Was told about too many mistakes during inventory; stated he was sick; was told to go see a doctor and bring release to work; did not show up Sunday (for inventory); showed up Monday; didn't see a doctor, says he is still sick; doesn't seem interested in work; attitude indifferent. November 6-Jose Velarde-Refused to buy a new pair of clippers. (discriminatee herein under another head- ing) November 14-Miguel G. Ramirez-Production very low; has not improved. In 1970, 52 employees were terminated from the shipping department as follows: Number Discharged and Reasons Assigned 2-cheating or falsifying records 1-stealing 3-insubordination 2-absent day before or after holiday: Friday, Satur- day, or Monday 1-lies or stories 1-negative attitude 1-fighting 2-absenteeism 13-refusal or unable to follow instruction, with dates, names and reason assigned as follows: Dates, Names, and Reasons Assigned 1-9-Manuel Montoya-Packed order without being checked by checker. Too many mistakes, work below average. 1-9-Manuel Escajeda-Packed order without being checked by checker. Work only fair. 2-10-Pantaleon Ceniceros-Packed order without being checked. 2-14-Lorenzo Morales-Did not follow instructions. Packed an order without being checked by a supervi- sor. 2-16-Alfredo C. Estrada-Does not follow instruc- tions. Packed an order without being checked. 3-30-Abraham Saenz-Packed an order without being checked by a checker. 4 6-William J. Quinn-Packed an order without being checked by a checker. 4-16-Ricardo Garcia-Packed an order without being checked by a checker. 3-3-Armando Ortiz-Too many errors due to not paying attention to his work. Shows no improvement. Poor work. 4-6-Jesus Espinoza-Was making too many big mistakes. 7-30-Richard Valenzuela -Too many mistakes. Packed 3 orders not checked. 2-20-Clemente Escalante-Stacked about 400 pairs of pants in wrong shelf. 7-31-Jose A. Acosta-Very poor production; No improvement, refused to follow instructions. l-8Juventino Morales-Made 56 pairs mistake on order. Has had too many mistakes. Corrected error without supervisor checking it. Production below average. 1-9-Joe Vasquez, Jr.-Work very poor, plays around too much. 1-10-Agustin S. Santini-Did not show any improve- ment, too many mistakes. 1-20-Adan Reyna-Very low production. No signs of improvement. 1-22-Emilio Casillas-Did not show any improve- ment . Was making too many mistakes 1-26-Daniel Olrvas-Did not show any improvement. Was making too many mistakes. Production below average. 1-26-Jose L. Villagran-Production below average. Did not show any improvement on his work. Was making too many mistakes. 1-30-Jose L. Aguilera-Did not show any improve- ment. Was making too many mistakes. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2-10-Lorenzo Munoz-Making too many mistakes. Did not show any improvement. 2-13-Ramon F. Rios, Jr -Too many mistakes. Pro- duction below average No improvement shown. 2-13-Ricardo J. Carmona-Made too many mistakes. Does not show any improvement . Production below average 2-19-Juan Mendoza-Did not show any improve- ment. Was making too many mistakes. Said he had personal problems. 2-21-Dan I . Himel, Jr.-No potential , very slow worker. 3-30--Fernando Ramirez-Very low production and making too many mistakes. 4-22-Eleno R. Diaz-Making too many mistakes and low production. 4-24-Manuel Porras-Low production, no improve- ment. 4-29-Guadalupe Pineda-Too many mistakes, no improvement. 4-30-Mario M Porras-Making too many mistakes. Showed no improvement 5-5-Guillermo Chavez-Making too many mistakes. No improvement 5-6-Ernie Marrufo-Making too many mistakes. No improvement. 5-6-Carlos Vera-Making too many mistakes. No improvement. 5-7-Gregorio Gutierrez, Jr -Making too many mis- takes. No improvement. 5-7-Isaac L. Soto-Making too many mistakes. No improvement. 5-18-Ernesto Alfaro, Jr.-Making too many mistakes. Low production. 8-3-Donald E . Tubbs-Too many problems . Did not show any interest in his work. 10-5-Ygnacio Enriquez-Very low production. In 1968, from September 1 through December 31 (the only records for 1968 in evidence), no employee was discharged for "too many errors ." In the categories of production and refusal to follow instructions, one was discharged for being "very slow worker" and two for not following instructions. Records of Respondent covering the 2 years and 4 months from September 1968 through December 1970, show that only during the 8-month period of December 1969 through July 1970, inclusive, were employees in the shipping department discharged for the assigned reason of "too many errors." Prior to that time and after that time, this reason for discharge does not appear . As to five of the employees discharged in 1969 (Estorga, Ramos, Moreno, Niglio, and Guillen) who were discharged for reasons which included "no aptitude for this type of work," "unable to do his work," and "very poor and slow worker," their work errors could be encompassed in their evaluation as workers. As pointed out in paragraphs E, 2, and F, errors were and are a frequent and expected occurrence , and supervi- sion showed concern with them only when they were not caught in the checking procedures used-that is, reached the customers ; or if an error was an unusually large one. Even then it was not used as a basis for discharge. I have found that Respondent's inauguration of the procedure of recording all errors and confronting employees with their errors immediately after the advent of the union organizing activities of employees constituted an unfair labor practice. Likewise, I find that those employees who were discharged in consequence of this action and who would not otherwise have been discharged were discriminatorily discharged. By tightening up on its standards of errors , Respondent has provided itself with an explanation or "justification" for its discharges. The same would be true if an employer raised his production standards as a retaliation for union organizational activities . Such changes become illegal when prompted by and done because of union activities As to the employees discharged for work performance or work rules , the test as to each employee is to determine whether or not he would have been discharged irrespective of Respondent's illegal tightening up as to work perform- ance and work rules . This will be determined by an examination of the circumstances surrounding each of the discharges complained of, particularly as to length of employment, wage increases given , and general work record, the latter being the area of review in determining qualifications for wage increases. Respondent's wage increases were not given across-the -board, but both amounts and times thereof were based on ment of each individual employee Long periods of service with numer- ous wage increases are significant in determining Respon- dent's evaluation of an employee at a time when there was no union activity. In evaluating an employee's general work record, his conduct, his average daily production and average number of work errors per month are compared with that of employees in general ; however, no greater significance is attached to work errors in this analysis and evaluation than was attached to them by Respondent in the absence of union activities. From an examination of the production ledgers, I find that the average daily production of order pullers was somewhere between 1 ,900 and 2,300 pairs of pants per day, depending on the period covered by a survey of averages, at what point the averages of beginners is included , and the extent of allowance for time spent in other jobs or off work. During the critical period of January through July 1970, I find that the average number of notations for work errors per employee to be about four or five per month.ii Of the. employees in the shipping department discharged from December 1969 through July 1970 and named in the complaint, I find that the following were caught in Respondent's illegal tightening up of its work rules and standards for mistakes and would not have been dis- charged in the absence of the union organizational activities and Respondent's illegal measures taken in response thereto: Names Dates of Discharge Manuel Pedroza December 16, 1969 Juventino Morales January 8, 1970 Manuel Montoya January 9, 1970 Jose L Villagran January 26, 1970 11 Occasionally a notation reported more than one error in an order FARAH MANUFACTURING CO 679 Raymon F. Rios, Jr. February 13, 1970 Clemente Escalante February 20, 1970 Jesus J. Espinoza April 6, 1970 Guadalupe Pineda April 29, 1970 Mario M. Porras April 30, 1970 Guillermo Chavez May 5, 1970 Ernie Marrufo May 6, 1970 Carlos Vera May 6, 1970 Gregorio Gutierrez, Jr. May 7, 1970 Isaac Soto May 7, 1970 Ernesto Alfaro, Jr May 18, 1970 I find that the following named employees in the shipping department would have been discharged for the reasons assigned irrespective of the Union's organizational activities in the plant: Emilio Casillas January 22, 1970 Daniel Olivas January 26, 1970 Ricardo Carmona February 13, 1970 Manuel Porras April 24, 1970 Richard Valenzuela July 30, 1970 1. Manuel Pedroza discharged December 16, 1969 Pedroza was employed by Respondent on May 3, 1967, as an order puller and was discharged on December 16, 1969. The reason assigned for his discharge was that he made too many mistakes, and his conduct was also a factor. His starting rate of pay was $1.40 per hour, and he was receiving $2.10 per hour when discharged, having received six merit wage increases during the 2 1/2 years of his employment, his last increase having been given on April 9, 1969. Pedroza signed a union authorization card on September 30, 1969, and he signed the second union telegram dated October 23, 1969. He attended union meetings, solicited for the Union, distributed union authorization cards regularly in the central corridor. Chemali testified that he observed Pedroza so engaged. During the inventory in the last week of October 1969, Pedroza was told by Supervisor Richard Ochoa to see Supervisor Henry Soza in connection with some errors he made and his conduct. He had been laughing loudly on hearing a joke and it was reported to Soza that he was creating a disturbance. While waiting in the shipping department office, President Farah came by and asked Pedroza what he wanted. Pedroza replied that he was waiting to see Soza about some errors he had made. While there Pedroza overheard Supervisor Norman Ekery state to Farah that, "He is one of those guys. He is on it." Farah came over to Pedroza and asked him if he had made the errors on purpose. Pedroza replied that he had not. Farah then told him that someone was telling him lies; that no one could protect him; that if he wanted to let Pedroza go, he could do so and no one could protect him. Farah asked if he had ever done anything to hurt Pedroza and Pedroza replied that he had not. Farah again asked Pedroza if he had made the errors on purpose and Pedroza replied that he had not. There is a notation on Pedroza's production ledger dated November 1, 1969, that "WFF [Farah] talked to him See note in ofc." On December 4, 1969, Pedroza urgently needed to go to the restroom, but all of the stalls were occupied. He kicked or hit on the trash can and knocked on the stall doors. This was reported to supervision, and he was called in and reprimanded by Chemali for this conduct and told that he did not want to warn Pedroza about his conduct again. On December 9, 1969, Pedroza was pulling an order and was told that his packer wanted to see him. When he got there the packer showed him an order for 17 pairs of pants and told him that he had pulled the wrong lot number Pedroza then went to get the correct pants, but the correct color and lot were not on the shelf. Pedroza took the order back to the packer. Supervisor Meili saw Pedroza in the shelving area and followed him to the packer. He asked to see the order Pedroza was working on and asked what was wrong. Cisneros, the packer, told him that Pedroza had pulled the wrong lot Meili told the packer that he was supposed to report those errors to the checker instead of telling the puller. Meili called Supervisor Aguirre and told him about it. Pedroza was told to go back to work. About 10 or 15 minutes later, he was called over the loudspeaker and told to report to the packer's table:When he got there, Chemali and Aguirre were there. Pedroza tried to explain that he had pulled the wrong order because the correct lot and the one pulled were side by side. They went to the shelves and Pedroza showed them that the two lots were side by side. Chemali said, "You know, you have more errors than anyone." He told Pedroza to better himself and Pedroza said he would try. Then he went back to work On December 16, 1969, shortly after the lunch period, Pedroza was pulling an order and was told that his packer wanted to see him. He went to the packer's table; Chemali and Soza were there. Chemali questioned him about an order that he had pulled that contained an error involving 15 pairs of pants; he told Pedroza that he had not improved in his work and could not better himself. Soza then said he would have to let Pedroza go. Pedroza's production record for 1969 prior to November 1, 1969, shows notations by supervisors as to his errors as follows: one error in January; five in May; one in June; one in August; three in September; and one in October. As previously mentioned in paragraph E, 2, Respondent started the first of November 1969 keeping more complete and detailed records of errors. Pedroza's production record shows that from that date to the date of his discharge on December 16 the following notations were made- November l-WFF (President Farah) talked to him. See note in office. November 4-(notation not legible) December 1-wrong lot (quantity not shown) December 2-failed to mark sizes on the packing slip December 4-disturbing the restroom, banging on trash can, knocking on doors December 9-wrong lot, 17 pairs December 16-wrong lot, 15 pairs December 17-wrong lot, 48 pairs (discovered after Pedroza was discharged) Summarizing as to Pedroza, he worked for Respondent for 2 1/2 years and received six merit wage increases during that period. As previously mentioned, Respondent's wage increases are not given across-the-board, but both 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amounts and times thereof are based on the merit of each individual employee. Pedroza's name appears on the Union's telegram of October 23; Pedroza was talked to by President Farah on November 1 about the Union. Pedroza's average daily production in 1969 was very low, but irrespective of this, he was not talked to about it, there are no notations on his production ledger or discharge records about it, and there is no testimony that it was a factor in his discharge. There are two incidents of misconduct by Pedroza-laughing and creating a disturb- ance during inventory and banging on doors and trashcan in restroom and creating a disturbance there. After the last incident, he was warned about any future acts of misconduct, but his discharge was for too many mistakes. This is the first discharge by Respondent (based on records going back to September 1968) for the reason of "too many mistakes." On November 3, 1969, Robert Santos was told about too many mistakes during inventory, but he was not discharged until after he failed to report for work 1 day and failed to see a doctor as he said he was going to do; his attitude was indifferent. Pedroza's records show notations for six mistakes and two acts of misconduct from November 1 to December 17, 1969. Six errors in 6 weeks is within the normal range; Pedroza's four known errors and five actual errors in December was within the normal range. Giving consideration to all factors, I find that Pedroza would not have been discharged under the facts and circumstances that existed had it not been for the union activities of employees at the Gateway plant and Respondent's efforts to thwart same. 2. Juventino Morales discharged January 8, 1970 Morales was employed by Respondent on January 16, 1968, as an order puller and was discharged on January 8, 1970. He received five wage increases during his 2 years of employment, the last was effective the work week ending October 15, 1969. The reason assigned for his discharge was that he corrected an error without a supervisor being called and also because he had too many errors. Morales signed a union authorization card on September 30, 1969, and signed the union telegram of October 23, 1969. He went to union meetings and solicited on behalf of the Union and distributed cards in the central corridor. He started wearing a union button on January 8, 1970, the day that he was discharged. No supervisor spoke to him at any time about his union activities. On January 8, 1970, at about 9 a.m., Morales was passing by the table of one of his packers, Raymond Amparan, and Amparan told him of an error that he had made involving 56 pairs of pants, and that it was all right for him to correct the error. Morales then got the correct pants and brought them to the table of Amparan. At about I or 2 o'clock in the afternoon, Morales was called on the loudspeaker by Supervisor Henry Soza. He went to the table of Amparan, and Soza and Vice President Chemali were there as well as checker Guadalupe Pina and packer Amparan. Soza asked Morales if he did not know that he was not supposed to correct mistakes until it had been reported to a supervisor. Morales said that he knew about this procedure but that he was bringing a truck to the packing table when he found out about the mistake and felt that it would be easier to go ahead and correct it himself. Soza then told Morales and Amparan that they were not going to do whatever they wanted to do there He told them that they were discharged. As previously mentioned in paragraphs E, 2, and F, in November 1969, Respondent started a procedure whereby a supervisor or checker was to be called on all errors of pullers, the errors recorded, and the employee talked to about the error by Vice President Chemah and another supervisor. I have found that this new procedure was illegally motivated. As to Morales, the issue is whether he was discharged as a consequence of this illegally motivated tightening-up measure or would have been discharged irrespective of this change Morales' production ledger shows notations by supervi- sors regarding errors as follows: 1969-three notations of errors in January, one in June; one in September, three in October, and six in December. 1970-one notation on January 8; that he pulled 56 pairs of lot #3029 instead of lot #3036. It is also noted thereon that "he was dismissed for making too many mistakes." Morales' production averages during 1969 are well below the average range. Although it is noted on his discharge records that his production was below average, he was not talked to about it, he worked for 2 years and received five merit wage increases irrespective of it, and Supervisor Soza testified that he was discharged for "too many mistakes and also for correcting that order without a supervisor first checking it." His work errors were a little more than average only in December 1969. Taking into account Morales' 2 years of employment, his five merit wage increases, the circumstances under which, and the motivation for, the work changes that brought about his discharge, and the fact that Respondent had discriminatorily discharged Adan Gonzales, the instigator of the Union in the plant, I find that the discharge of Morales for too many mistakes and for correcting a work error would not have occurred in the absence of the union activities of employees at Respondent's facilities and Respondent's retaliatory tightening of work standards 3. Manuel Montoya discharged January 9, 1970 Montoya was employed in November 1967 He did not report for work the first workday after the Christmas holidays in 1967 and he was terminated for this reason; however, he was rehired 2 weeks later on January 18, 1968, and worked in the shipping department as a packer. He was terminated on January 9, 1970, and the reason assigned was that he packed an order without it being checked. During his 2 years of employment, he received six merit wage increases, the last being given on December 3, 1969 Montoya signed a union authorization card on October 23, 1969. His name appears on the union telegram of December 12, 1969. He started -wearing a union button when the employees returned to work in January 1970, ,following the Christmas holidays. Montoya was one of the employees participating in the meeting of employees on December 12, 1969. (See para E, 4) FARAH MANUFACTURING CO. 681 At about 8 a m., Friday, January 9, 1970, Supervisors Soza and Serna came to Montoya and showed him an order and asked if it was his. Montoya stated that it was; Serna asked why he had packed it since it had not been checked. Montoya said he could not give any explanation; that he might have rushed himself. Serna told him that if he made one more mistake he would be discharged. He then gave Montoya the order to have it checked. Montoya opened the box, laid out the order, and had checker Guadalupe Pena check it. It contained no error. The order was then repacked and dispatched. At about the time of the morning rest period that day, Montoya was working on another order. A new color was involved and he did not know the name of it. He stopped a puller and asked him about it. The first one did not know and he asked another puller who gave him the name of the color. President Farah was in the shipping department at this time and Farah came to Montoya and asked what was wrong. Montoya told him that he was trying to verify the color. Farah told him, "Didn't you know that you weren't supposed to talk to the pullers?" Montoya said he knew about the rule, but he thought that it meant he was not to talk to his own pullers. Farah stated that it applied to anyone. He told Montoya that if he needed any assistance to ask another packer or a checker or a supervisor. Farah called Serna and explained to him what had happened. When Farah left, Serna asked Montoya why he was causing so many problems Soza told Montoya that they had a log book of all the colors and styles and lot numbers at the shipping room office Later that morning, Farah came again into the shipping department and talked to Serna and Soza and told them that he had been getting too many telephone calls and complaints that orders were going out wrong; that they should be more careful in checking and packing orders especially as to size ranges and that they should be very careful to see that no order gets out without being checked. Soza mentioned that that morning there had been an order that had not been checked. Farah asked if the employee had been discharged and Soza replied in the negative. Farah turned to Serna and told him, "Didn't I tell you when we came back after the Christmas vacation that we were not going to tolerate any more orders being packed without being checked by supervisors?" Serna replied that this had been told him but that he did not know that Farah meant the employees should be discharged. Farah then stated, "That is exactly what I meant. I told you we are getting too many complaints from customers and we cannot tolerate any such mistakes like that." Serna then stated that 2 or 3 days before a packer had packed an order without it being checked. Farah asked if he had been discharged and Serna replied no. Farah stated that they could not tolerate such mistakes and he told Soza to let Montoya go Soza asked about the other packer, Manuel Escajeda, and Farah stated that he should be discharged also. Soza then went to Montoya and told him that he was sorry but this rule had been in effect and he was going to have to let him go. Soza then went back to Manuel Escajeda and told him the same thing; that 2 or 3 days ago he had packed an order without it being checked; that this was a rule that Farah had set and that he was going to have to let him go. Escajeda said, "Why, why me?" Soza replied, "Well, because it's a rule and that rule was set by Mr. Willie Farah and I'm going to have to let you go." Escajeda stated, "But I'm not a union man, why do you have to let me go?" Soza replied that he was sorry but that it was a rule that had been set by Farah. Packing an order without it being checked had always been considered an error, but during the 4-month period of the rule, January through April 1970, 8 packers were discharged for packing an order without it being checked. (Their names are listed in a prior paragraph; of these only Montoya is named in the complaint herein.) The rule was rescinded in the latter part of April 1970 because it was considered to be too harsh. The rule was rather suddenly promulgated by President Farah in January 1970, and he stated to Supervisors Soza and Serna that he was getting too many complaints from customers about orders going out wrong. Aside from his assertion of this fact, there is no evidence on the point. But, during the 4-month period of January through April, the error was made 8 times, and, if one of these orders had been packed wrong, it would have reached a customer in that condition. This issue is whether or not Farah decided to impose the punishment of discharge for this error because of customer complaints or as part of the "tightening up" measures taken in retaliation against and to restrain employees because of the union activities in the plant. I have found that this was one of the changes made to interfere with, restrain, and coerce employees because of their union activities. (See paras. E, 2, and F.) I find that the discharge of Montoya in the pursuit of this illegal measure was discriminatory and find that his discharge would not have occurred for this reason had it not been for the union activities in the plant. 4. Jose Villagran discharged January 26, 1970 Jose Villagran was employed in August 1966, and discharged on January 26, 1970. He was an order puller in the shipping department. The reason assigned for his discharge was that he was making too many errors and also conduct was a consideration. He started at the rate of $1.25 per hour and was receiving $2.25 per hour when discharged, having received nine merit wage increases during the period of his employment, the last being on November 5, 1969 He received Christmas bonuses in 1967, 1968, and 1969. Villagran signed a union authorization card on October 3, 1969. He distributed cards to employees in the central corridor, attended union meetings, and wore a union button after they were distributed to union members in the first part of January 1970. His name appears on the Union's telegram of January 8, 1970. Villagran was one of the employees at the meeting of employees in the shipping department during the afternoon break on December 12, 1969, at which Farah had supervisors take down their names. This incident is discussed in paragraph E, 4. Also, Villagran was a witness for the General Counsel in the Board hearing involving the discharge of Adan Gonzales conducted on January 14, 15, and 16, 1970. His testimony with that of three other employees responded to the 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention of Respondent as to deficient production by Gonzalrs by testimony that "those engaged in closeout pulling during the period in question performed a `usual' amount of work." 12 On January 26, 1970, Villagran was discharged. His production record shows that on that day he pulled 42 pairs of lot #24410 and 22 pairs of lot #24412, and the quantities should have been reversed . He was told by Soza, after Soza checked by telephone with Chemali, and with Supervisor Ochoa being present, that since they had tried to help him in whatever they could and he had replied there was nothing they could do for him and that since his work was not improving, Soza had no choice but to let him go. Although Respondent had started the new system of recording errors of pullers in November 1969, yet Villagran has only one entry on his production ledger prior to January 16, 1970, the last day of the hearing in the Adan Gonzales case. The one entry was made on December 12, 1969, the day of the employee meeting called by Luis Alvarez in the shipping department, and that entry is "very curious and looking up to the shipping room when the incident on Luis Alvarez occurred." From January 16 to 26, there are notations of errors on Villagran's production ledger on January 16, 17, 19, 22, 23, and 26, as follows: On January 16, he was cautioned about wasting time; this is in reference to the incident involving George Lopez set forth in paragraph E, 1. On January 17, there is an ' entry that Villagran was reprimanded for carrying a newspaper in his clipboard with his orders and was told that this would go on his record. This incident is also discussed in paragraph E, 1. On January 19, Monday, there is an entry that Villagran pulled one order short, involving 15 pairs of pants. Villagran was called by Supervisor Serna and told he had pulled 15 pairs of pants of the wrong color He denied to Serna that he had made the error, contending that he had checked the order on several occasions. On January 22, there are two entries, one that Villagran pulled 25 pairs of lot #28077 for #28078, and the other that he pulled 10 pairs of the wrong color. On this date, he was talked to by Soza about the errors Soza asked him what was wrong with him; that if he had any problems to tell him and he would try to help him. Villagran replied that he was doing his job well, and he asked Soza what was wrong; why was it bothering Soza more that week than before; that Soza had told him on several occasions that he was a good worker. On January 23, there are two entries; one that he pulled 6 pairs in one order that were two waist sizes short, and the other that he pulled 12 pairs of the wrong lot. He was talked to that day by Soza and Chemali. Chemali asked him what was happening and if he had problems. Villagran replied in the affirmative and stated that he was being followed by Esman and Meili. Chemali told him to pay more attention to his work, and Villagran replied that he was. Chemali stated that Villagran did not want to work. Villagran stated that he was telling him his problem so he could help him. Chemali asked if he knew how many errors he had made. Villagran replied that he was not counting them, and that he could not understand why in the 2 or 3 years before this no one had ever told him about his errors and now they were. Chemali replied that the reason he was getting told now was so that the Company could tell which people were doing the good job and which were doing the bad job; that then they could give credit to the ones doing the good work and help to those doing the bad work; that before this system was instituted they did not have a system to check the pullers. In 1969, other than the entry on Villagran's production ledger for December 12, the only entries are : one entry in January; one in May; and two in June. Respondent's records on the discharge of Villagran contain a notation of "production below average ," as well as reference to his errors and conduct. Since this was not advanced as a reason for his discharge , I find that it was added to the record as an observation of his production abilities . There is no evidence that his production level was at any time discussed with him . His daily average production by months is as follows: January 1969-2,337 February 1969-2,501 March 1969-1,083 April 1969-757 May 1969-1,993 June 1969-1,766 July 1969-1,781 August 1969-2,204 September 1969-1,392 October 1969-1,388 November 1969-special orders and closeouts December 1969-closeouts January 1970-1,788 Summarizing as to Villagran-Villagran worked for Respondent for 3 years and 5 months; he was given nine merit wage increases during that time , the last on November 5, 1969. There are no notations on his production ledger of any errors during the period of November 1, 1969, to January 16, 1970; there are only four for the entire year of 1969 . He testified as a witness for the General Counsel in the Adan Gonzales case conducted on January 14, 15, and 16, 1970. Then, in the next 6 working days from Friday, January 16, to the following Thursday, January 22, there are six notations for errors and two for conduct-cautioned for wasting time for one and repri- manded for carrying a newspaper on his clipboard for the other. He was discharged on January 22 after he had on that day pulled two wrong lot numbers. He was told that "since his work was not improving," Respondent "had no choice but to let him go." I find that in addition to Villagran's being caught in Respondent's new criteria for discharge, his appearance as a witness in the Adan Gonzales case was a contributing factor. His production ledger is virtually free of notations by supervisors until January 16, 1970; then suddenly he accumulated notations for errors and misconduct for which Respondent had no choice but to let him go. I find that his errors and conduct were a pretext for Respondent's discharge of him for union activities and his act of testifying in the Adan Gonzales case. 12 Farah Manufacturing Co, 187 NLRB 601 FARAH MANUFACTURING CO. 683 5. Ramon Rios discharged February 13, 1970 Rios was employed by Respondent on April 4, 1968. He was an order puller and received four merit wage increases during his period of employment, the last being effective the workweek ending December 3, 1969. The reason assigned for his discharge was "too many mistakes." Rios signed a union card on September 30, 1969, and his name appears on the union's telegram of January 8, 1970. He attended many union meetings and solicited on behalf of the Union in the main hallway and had two union bumper stickers on his car. Between 9 and 10 a.m. on February 13, Rios was called to the table of a packer and there in the presence of Vice President Chemah, Supervisor Moreno told him that he had made another mistake and he asked Rios if he knew that he had made a lot of other mistakes. Rios stated that he was aware that he had made mistakes. Then Moreno told him that as he had made a lot of mistakes and that they were going to have to let him go. The mistake he made on that day involved 12 pairs of pants. Rios' production ledger for 1970 shows notations by supervisors as follows: January 8-wrong lot, 22 pairs of lot #24727 for lot # 24427 January 14-short, 27 pairs Date illegible-short, 20 pairs January 21-short, 14 pairs January 23-short, 7 pairs January 23-short, 5 pairs January 28-short, 5 pairs January 29-short, 2 lot numbers February 3-short, 8 pairs February 9-short, I color February 11-pulled wrong color twice; wrong size, 9 pairs; wrong lot, 16 pairs Rios' production ledger for 1969 shows notations of errors as follows: four errors in January; one error in February, four errors in August; two errors in October, one error in November; and one error in December. Prior to the inauguration in November 1969 of the policy of recording all errors and confronting employees with all their errors, Rios was making the same number of errors in his work as he made after it started. Small errors, usually involving less than 12 pairs of pants, were corrected by the packers; on larger errors, the packer called the puller who corrected the error. This was the operating procedure prior to November 1969, errors were frequent and expected in this type of work. Supervisors were aware that errors were being made but were not usually involved in this aspect of the work unless the error was not corrected before being dispatched or unless it happened to be a particularly large one. On occasions they talked to employees about errors they observed being caught or corrected. Supervisors Moreno and Aguirre had talked to Rios about errors prior to November 1969. They had told him to try to do better. Rios worked for Respondent for almost 2 years. During all of this time, Respondent kept daily records of his production and that of all order pullers and packers (and other employees whose production could be measured). During this time, Rios' work was rewarded with four merit wage increases, the last being on December 3, 1969. Furthermore, at the time Rios was discharged, February 13, 1970, his production total and average for the 6 weeks of 1970 was higher than it had been at any time in 1969. Rios' daily production averages for 1970 and 1969 are as follows:. January-2,152 February-1,876 January-1,816 February-1,865 March-1,283 April-In stock May-In stock June-1,502 1970 1969 July-1,804 August-1,451 September-1,575 October-1,766 November-1,395 December-1,786 Respondent's records (see above listing of employees discharged for work errors, taken from Resp. Exh. 110) show reason for discharge of Rios to be "too many mistakes; production below average." Yet, production was not mentioned to Rios at time of discharge. He testified that, in November or December, Supervisor Ekery spoke to him about his production and thereafter he improved his production, which, in fact, he did. Summarizing the more salient facts as to Rios, Rios worked for Respondent for almost 2 years and received four wage increases. For the first 6 weeks of 1970, he accumulated a total of 13 errors, a very high number for that period In November and December 1969, there is a notation of one error for each month. As Rios testified, his average of errors was the same in his work both before and after Respondent began its policy of recording all errors. Rios' production in 1969 was low; irrespective of this, he received three wage increases during that year. He was reprimanded about low production in December 1969; and in the 6 weeks of 1970 he brought his daily average production up 2,152 in January and 1,876 in February, better than any single month in 1969. I find that Rios would not have been discharged in the absence of the union activities in the plant and Respondents coercive measures taken in retaliation against these activities. 6. Clemente Escalante discharged February 20, 1970 Escalante was employed in March 1967 as a stocker- second separator. On February 16, 1970, the work of stocker-separator was divided, and Escalante and about eight other employees were assigned as stockers. He was discharged on February 20, 1970, allegedly for committing a large error. He stacked 200 to 400 pairs of jeans on top of slacks. He started work at the rate of $1.40 per hour and was receiving $2.30 per hour when discharged having received eight wage increases. He trained two employees while working for Respondent. Escalante signed a union authorization card on Septem- ber 30, 1969. His name appears in the telegram dated December 12, 1969. He started wearing a union button in 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 1970, and wore three or four every day thereafter. He attended union meetings, he talked to employees and gave out about 20 union authorization cards On February 20, 1970, Raul Guerrero, a stockman, called Escalante and told him to come to the shelves-that he had mixed one lot with another. Escalante met Guerrero there and also Supervisor Esman. There were 200 to 400 jeans of an olive color placed on top of slacks also of an olive color The error was corrected and Esman told Escalante to go back to work. He then called Vice President Chemali, and told him about the mistake of Escalante and said that he would like to discharge Escalante because of the size of the error. Chemah said he wanted to talk to Escalante. About 11 o'clock that morning, Chemah called Escalante and in the presence of Esman asked him how it happened that he had mixed one lot with another. At first, Escalante did not acknowledge that it was his error. Guerrero was called and said that it was Escalante's error. Escalante replied, "If you say so." Escalante then said that maybe he was not too careful; that he was human and made mistakes too. Chemah asked Guerrero how many trousers had been mixed and Guerrero replied it was about 400 pairs. Escalante stated that it was not that much. Chemah then told him that, in view of the difference between slacks and jeans and the length of time Escalante has been separating pants, he felt that it was an intentional act, and he told Escalante that he was discharged. There is no precedent for discharging an employee because of the size of a single error and there is evidence that other employees made errors similar in size to that of Escalante and were not discharged. Frank Molinar, a stocker, who started working for Respondent in May 1969, made two errors on October 9, 1970, totaling 360 pairs of pants. He was not discharged. He mixed lot #40851 with lot #40882 and lot #40853 with lot #40883 on shelf #47B. On October 21, 1970, Jose Robles mixed lot #40531 with lot #40523, involving 400 pairs of pants, and was not discharged. The only evidence of any other error by Escalante is a notation on his production ledger on February 19 that he mixed sizes in the same bundle in the shelf. Supervisor Esman could not testify as to the details of the error but testified that Escalante possibly had put a 31 length with a 32 length. The error of the 200-400 pairs of pants discovered on February 20 was committed by Escalante in the late afternoon of February 19. The jeans and the slacks that were mixed were of the same color and same material and had very similar lot numbers-28297 and 28227. On the other hand, jeans and slacks are folded differently, have different style pockets and have different labels and tickets. Based on this difference and the length of time that Escalante had been separating pants, Chemali told Escalante and testified that he did not believe Escalante could commit this error without it being intentional. The issue is whether or not Escalante would have been discharged for committing this one error in the absence of the union activities in the plant. I find that he would not have been and this is based principally on the fact that the only basis for Chemali's accusation that Escalante mixed the pants in the shelves with "intent" to commit a wrong was the fact that by looking at the pants involved, one could recognize that one group was jeans and the other slacks. There is nothing in Escalante's almost 3 years of employment that would support an accusation of inten- tional wrongdoing. Pants had been found in the inventory in 1969 that had been slashed with a knife; thus, someone had engaged in an intentional act of wrongful conduct. However, in view of the actions taken by Respondent to "strike back" at the employees because of their union activities, which actions included the discriminatory discharge of the instigator of these activities, and illegally motivated changes in working rules and standards, and in view of Escalante's work record and the unusualness of the action taken against him, I find that Respondent would not have terminated him for the large error he committed on February 19 in the absence of the union activities that were going on in the plant. 7. Jesus Espinoza discharged April 6, 1970 Espinoza was employed by Respondent on July 8, 1968, and worked as an order puller He received three wage increases, the last being effective on the week ending December 3, 1969. The reason assigned for his discharge was "too many mistakes." Espinoza signed a union card on September 30, 1969, and his name appears on the union's telegram of October 23, 1969. He attended most of the union meetings and beginning in February or March 1970 he solicited in the central corridor on behalf of the Union. At about 4:10 p m. on April 6, 1970, Espinoza was shown an order by Supervisor Soza, with Vice President Chemali being present, and asked if it was his He acknowledged that it was. Soza told him that 20 pairs of pants were missing. Espinoza replied that he had pulled the order correctly. Soza said that the 20 pairs of pants were not there. He told Espinoza that he was making too many mistakes and that he was sorry but that they were going to have to let him go Espinoza's production ledger shows the following nota- tions in 1969 and 1970: In 1969 there are the following numbers of notations for errors: one in January; one in May; one in August; one in September; two in October; and one in December. There are also notations in December that he was told to put his glasses on one occasion and on another occasion that he forgot his glasses. 1970 January 7-making excessive noises disturbing other employees January 13-wrong lot, 36 pairs January 21-(not decipherable) January 28-wrong lot, 12 pairs January 30-wrong lot, 4 pairs February 4-short, 10 pairs February 9-wrong lot, 17 pairs February 18-wrong style, 26 pairs February 24-wrong lot (quantity not shown) FARAH MANUFACTURING CO. 685 February 27-short, 2 lots 8 pairs March 6-short, 26 pairs March 7-short, 18 pairs March 9-pulled 141 pairs wrong on 4 orders March 9-wrong color, 4 pairs March 10-wrong color, 9 pairs March 11-short, 14 pairs March 12-short, 5 pairs March 30-wrong lot, 5 pairs April 3-short, 47 pairs April 6-short, 20 pairs There is no criticism of Espinoza's production record which shows daily averages in 1970 as follows: January -1,752; February-2,217; and March-2,068. In 1970, when Espinoza made an error, he was called to the packer's table and the error pointed out to him. When Espinoza was called about an error on March 11, Vice President Chemali asked him what was the matter and if he could help Espinoza. Espinoza stated that he had been trying to memorize his orders so that he could pull several at a time. Chemali told him not to do that. Espinoza also told him that he was nervous because his wife was pregnant and that he was worried about his job. Chemali told him to try to think that he was going to do his job right and not to worry about losing it. For the rest of that month, Espinoza made only two errors involving only five pairs of pants each. When Chemali confronted Espinoza about an error on April 3 involving 47 pairs of pants, he asked Espinoza how his wife was doing and if she had delivered yet; Espinoza replied that she had not and that he felt at ease and was not worrying about that anymore Summarizing as to Espinoza, he worked for Respondent for I year and 9 months and received three wage increases. His number of errors in 1970 was in the average range except for the month of March when he had a total of eight errors with one involving 141 pairs of pants. His pro- duction average in 1970 was 2,012 pairs per day which was within the average range. I find that Espinoza was caught in Respondent's illegally motivated tightening-up measures and would not have been discharged in the absence of the union activities in the plant. 8. Guadalupe Pineda discharged April 29, 1970 Pineda was employed by Respondent in October 1967 as an order puller. He received six wage increases, the last one effective the week ending November 19, 1969, was in the amount of 20 cents per hour and brought his hourly rate to $2.35. The reason assigned for his discharge was "too many mistakes." Pineda signed a union authorization card on January 3, 1970. His name does not appear on any of the union telegrams. He did not engage in any overt union activities until about March 1, 1970, when he started wearing a union button and also standing in the central corridor during the noon period on Wednesdays with several other employees and advising employees who passed by about union meetings held on Wednesday evenings. He did not distribute authorization cards but did solicit on behalf of the Union. On the day of his discharge, April 29, 1970, at about 2.50 p.m., Pineda was called by Soza and told that he had made another error. Pineda could not remember about the pants involved. Soza took him to the office and showed him a book and said that he had too many errors. Soza then said, "Well, we told you about it, you just did the same thing again, I'm sorry, we're going to have to let you go." Pineda's production ledger shows notations for errors in 1969 and 1970 as follows: 1969-only 2 notations of errors, 1 in July and 1 in September. 1970 January 20-short, 1 lot February 3-wrong color, 36 pairs February 7-wrong color, 6 pairs February 12-short, 24 pairs February 17-short, 22 pairs February 21-short, 12 pairs February 25-short, 16 pairs February 26-short, 5 pairs March 6-short, 13 pairs March 9-short, 40 pairs March 12-short, 10 pairs March 16-short, 23 pairs March 25-short, 3 lots, 17 pairs, 17 pairs and 14 pairs respectively March 25-short, II pairs March 25-short, 6 pairs and pulled lot 29170 for lot 29172 March 31-short, 28 pairs March 31-short, 34 pairs, and 12 pairs wrong size April 9-short, 5 pairs April 11-short, 7 pairs April 13-short, 18 pairs April 20-short, 14 pairs and 19 pairs April 27-wrong color, 3 pairs April 27-wrong color, 12 pairs April 27-wrong color, 8 and 12 pairs April 29-short, 9 pairs Pineda was called and told of his errors by various supervisors including Soza, Meili, and Aguirre. On March 25, Soza told Pineda that maybe he would be better doing something else such as separating. Pineda replied that he would try harder to do better. Soza testified that Pineda was a high producer. His daily production averages in 1969 and 1970 were as follows: 1969 January-2,158 February-2,407 March-2,307 April- May June-1,592 July-1,975 August-1,748 September-1,780 October-1,985 November-1,764 December-2,075 1970 January-1,973 February-2,489 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March-2,474 April-2,134 Pineda worked for Respondent 2 1/2 years and was one of its high producers. He was talked to about transferring to another job, but Pineda said he would try harder to cut down on mistakes and it was not offered. He had no notations on his record as to errors from the time the practice of making such notations began in November 1969 until January 20, 1970, and only two notations of errors in the entire year of 1969. Pineda received six wage increases during his 2 1/2 years of employment, three in 1968 and three in 1969. His last increase was 20 cents per hour, whereas most increases are at the rate of 10 cents per hour. He joined the Union on January 3, 1970, and started overt union activities on about March 1, 1970. The first notation of an error was entered on January 20, 1970; then there were seven notations in February; nine in March; and nine in April. This is unquestionably a high quota of errors for the period of time involved, although it can be accounted for in some respects by Pineda's high rate of production; and if Respondent had had a practice of discharging employees who accumulated this number of errors without the Union being the cause of its adoption, then the selection of Pineda for discharge could not be questioned. But, Pineda was caught in Respondent's illegal change and tightening of requirements as to work errors. Pineda had worked for Respondent for about 2 1/2 years without discharge or being disciplined for errors until 1970, and I find that he would not have been discharged in this instance had it not been for the union activities of employees.13 9. Mario Porras discharged April 30, 1970 Mario Porras was employed by Respondent on Septem- ber 1968 as an order puller. He was discharged on April 30, 1970, and the reason assigned was "too many mistakes and also conduct was a factor." During his period of employ- ment, he received three wage increases, the last being effective the week ending December 3, 1969. Porras signed an authorization card on October 1, 1969 He solicited for the Union in the main corridor during the lunch period. In about the early part of April 1970, he began wearing a union button and on some occasions he wore two buttons. He distributed approximately eight buttons to other employees and distributed approximately 25 to 30 authorization cards; none of the authorization cards were returned to him. No supervisor said anything to him about the Union or about his distribution of union cards or about his wearing a union button. Shortly after lunch on the day of his discharge, April 30, 1970, Porras was pulling an order and a particular item of pants was missing from the shelves. He asked another puller where the surplus stock of these pants was located. As Porras left this employee, Supervisor Meili came to him and asked what he was doing. Porras told him that he needed a particular item of pants and that the location of the surplus of these pants was not marked down and that he got the information of the location of these pants from the other puller. Meili then asked him if he knew that he was not supposed to be talking. Porras answered yes but that he was talking about the job. Then Meili took out a book and wrote something down. Shortly before the afternoon break on the same day, April 30, Porras was called to the packing tables. Supervisor Soza, with Vice President Chemali present, told Porras that he had made an error. While they were talking, Meili came up and told Soza that Porras had been talking that afternoon. Porras explained to Soza and Chemali that he had been talking about work. Soza told Porras to be more careful. Shortly after the afternoon break that day, Porras was again called to the packing area and told by Soza that he had made another error; that he was going to have to let him go. Soza testified that Porras was terminated for making too many errors and that conduct was also a factor. The conduct which was a factor was the report by supervisors on several occasions that Porras was talking to other employees while in the shelving area. The production records of Porras show notations for errors and conduct as follows: 1969-one notation in January; two in February; four in June; two in August; and one with illegible date. 1970 January 8-wrong color, 37 pairs January 19-wrong color (quantity not shown) January 21-short, 8 pairs January 27-short, 43 pairs i4 February 4-wrong lot, 22 pairs February 6-short, 29 pairs February 13-wrong color, 5 pairs February 18-short, 18 pairs February 19-short, 20 pairs February 27-short, 12 pairs March 4-{not deciphered) March 5-short (quantity not shown) March 6-wrong color, 4 pairs March 9-2 wrong lots, 2 pairs and 3 pairs March 11-wrong color, 23 pairs March 18-short, 35 pairs March 24-wrong lot, 8 pairs March 24-wrong color, 2 lots (quantity not shown) April 20-wrong color, 18 pairs; cautioned about excessive talking April 21-2 wrong lots, 12 pairs and 5 pairs April 24-short, 3 pairs April 27-wrong color, 17 pairs April 27-short, 5 pairs April 28-told not to do so much talking in the shelves. April 29-short, 9 pairs April 30-told to concentrate more in his work instead of talking in the shelves all the time; 12:50 PM, short, 15 pairs; 3.15 PM, short, 16 13 Foster Co, 192 NLRB No 45 14 A duplicate entry of this error was made on January 28 FARAH MANUFACTURING CO. 687 pairs; talked to by Chemali about too much talking in the shelves; 3:50 PM, wrong lots, 79 pairs and 38 pairs. On March 24, when Supervisor Soza talked to Porras about a mistake, he told him that maybe he would be able to do better doing something else as a separator ; that if he needed additional training to let them know and they would help him. Porras answered that he would try to do better. Porras' daily production averages for 1969 and 1970 were as follows: 1969 January-1,391 February-1,822 March-1,672 April-1,770 May-1,550 June-1,455 July-1,734 August-1,085 September-1,389 October-1,507 November-1,382 December-1,862 1970 January-1,368 February-2,289 March-2,087 April-1,989 Porras' production averages for his last 4 months of employment ( 1970) were higher than they had been at any time in 1969. Porras had an excessive number of errors in March and April 1970. His production in 1970, however, was in the average range , and in each of the 4 months of 1970, his production was higher than during any month in 1969. Porras testified that he was making approximately the same number of errors in 1969 as in 1970. He worked for Respondent for a little over a year and a half and received three merit wage increases . I find that Porras was caught in Respondent's illegally motivated tightening-up measures and would not have been discharged absent the union activities in the plant. 10. Guillermo Chavez discharged May 5, 1970 Chavez was employed on July 1963 and discharged on May 5, 1970. At the time of discharge, he was an order puller and had been for approximately 2 years; prior to that, he had wqrked in several types of jobs in the shipping department. During his period of employment of almost 7 years, he received 12 wage increases . His last increase was effective the pay period ending January 14, 1970, at which time he was told by Supervisor Ekery that he had had a good December and a good start in 1970. His rate of pay was $2.50 per hour. In accordance with company policy, he received a Christmas bonus each year of his employment except 1963 . The reason assigned for his discharge was "too many mistakes." Chavez signed a union authorization card on September 30, 1969, and signed the Union's telegram to the Company dated October 22, 1969. Chavez was very active as a member of the organizing committee . He passed out union authorization cards at the plant cafeteria , in the central corridor, and outside the plant. He passed out approxi- mately 800 authorization cards and witnessed signatures of employees on approximately 50 cards. He attended all of the union meetings and spoke at most of them . He visited the homes of approximately 20 to 25 employees and in so doing obtained about 12 signatures on authorization cards. He wore three union buttons from the time they were distributed (January 1970) to the day of his discharge. He was one of the employees who attended the meeting of employees in the shipping room on December 12, 1969, set forth in paragraph E, 4. Chavez was a witness for the General Counsel in the case involving the discharge of Adan Gonzales, heard on January 14, 15, and 16, 1970. The Trial Examiner's Decision, which issued on May 6, 1970 , mentioned Chavez and three other witnesses as having testified to the effect that those engaged in closeout pulling during the period in question performed a "usual" amount of work. It is noted that the Trial Examiner's Decision issued after the discharge of Chavez. Chavez was talked to on two or more occasions by supervisors about his union solicitation. As mentioned in paragraph D, shortly after the Union 's telegram of October 22, 1969, President Farah told Chavez that he was not to go into the cutting department . In December 1969, Vice President Chemali reprimanded Chavez for "pressuring" other employees to sign union authorization cards. Chavez was discharged near the end of the workday on May 5, 1970. He was called to a packing table. There Vice President Chemali , in the presence of Supervisor Aguirre, told him that he had been making "too many mistakes." Chemali took Chavez to the shipping room office and showed him his production ledger and told him that he had been making more mistakes than anyone there and that he thought he would have to let him go. Chavez laughed or smiled . Chemali asked him why he was laughing and Chavez replied no reason. Chavez' production ledger shows notations for errors in 1969 and 1970 as follows: (Two references to conduct- shouldering another employee and hollering at someone- which are not a factor in his discharge are not included.) 1969-one notation in January; one in May; one in July, one in August; one in November; and three in December. 1970 January 9-duplicate packing slips. See note in office. January 26-short, 19 pairs January 26-wrong color, 8 pairs January 29-short, 3 pairs January 29-short, 4 pairs January 30-wrong color, 16 pairs February 6-2 wrong lots, 21 pairs February 7-wrong lot (quantity not shown) February 7-wrong lot (quantity not shown) 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 7-short, 16 pairs March 9-short, 6 pairs March 16-wrong lot, 16 pairs March 20-2 wrong lots, 27 pairs (pulled lot #25560 for lot #22560 and lot #25562 for lot # 22562)15 March 20-wrong waist, 9 pairs March 24-wrong lot, 8 pairs March 25-2 wrong lots (quantity not shown) March 30-short, 19 pairs April 3-wrong lot, 5 pairs April 6-short, 6 pairs April 14-short, 15 pairs and 4 pairs April 23-short, 17 pairs May 1-short, 11 pairs May 4-wrong color, 12 pairs May 5-short, 18 pairs In March 1970, when Vice President Chemali talked to Chavez about an error, he told Chavez that he might have to move him to do something else, maybe a separator, where he might be able to do better. Chavez told him that he had not been feeling well and was going to see a dentist about his gums. Reassignment to 'another job was not mentioned to him again. Chavez' daily production averages in 1969 and 1970 were as follows: 1969 January-2,358 February-2,498 March-1,438 April- May- June- July-2,114 August-2,002 September-1,736 October-1,319 November-1,634 December-2,305 1970 January-2,458 February-2,801 March-2,576 April-2,398 May-2,514 Chavez was a high producer and his daily averages during 1970 were exceptionally high. Chavez' record of errors shotlcs that his errors were not excessive in number. March was the month with the most number of notations -seven notations with two of them containing reference to two errors each. The number of notations for April and May was less than the average. Chavez worked for Respondent for 6 years and 10 months, and had been an order puller for approximately 2 years. He received 12 merit wage increases during his employment. I find that Chavez would not have been discharged absent the union activities in the plant. There is insufficient specific evidence, however, to relate Chavez' discharge to his act of testifying in the Adan Gonzales hearing, as separate and distinct from his union activities in general. Therefore, I find no violation of Section 8(a)(4) of the Act as to his discharge. 11. Ernie Marrufo discharged May 6, 1970 Marrufo was employed by Respondent in June 1968 and was an order puller. He received three merit wage increases, the last effective the pay period ending October 15, 1969. The reason assigned for his discharge on May 6, 1970, was "too many mistakes." Marrufo signed a union card on October 2, 1969. In December, he began soliciting on behalf of the Union and attending union meetings. In January 1970, he started wearing a union button. In January, he had a conversation with Supervisor Aguirre regarding the Union, which conversation is set forth in paragraph G and found to be noncoercive. In the afternoon of May 6, 1970, Marrufo was called to a packing table where Supervisor Soza showed him an error involving a shortage of six and four pairs of pants on an order. Then Soza took him to another packing table and pointed out an error of a shortage of 33 pairs of pants. Marrufo contended that he had not made this error and that he had been assisted in pulling it by stockman Joe Acuna. Acuna was called and acknowledged that he had helped Marrufo on an order, but he could not remember the sizes that he had worked on. Supervisors Meili and Aguirre were also present. A little later, Soza came to Marrufo and told him that he would have to let him go because he had made too many mistakes. Marrufo's production ledger shows notations regarding errors as follows: 1969-one in February; one in May; two in June; one in October; and one in December. 1970 January 8-short, 24 pairs January 14-wrong color, 11 pairs January 26-short, 14 pairs January 31-short, 14 pairs February 2-short, 8 pairs February 6-wrong color, 5 pairs February 6-wrong color, 10 pairs February 10-wrong color, 7 pairs February 10-wrong color, 30 pairs February 11-order had slip "do not pull" 28295 Blu. Forgot to write it on packing slip. February 26-short, 30 pairs February 27-wrong lot (quantity not shown) March 4-short, 11 pairs March I 1-wrong color, 15 pairs March 16-wrong color, 9 pairs March 17-short, 6 pairs April 6-wrong color (quantity not shown) April 10-wrong lots, 14 pairs April 13-short, 15 pairs April 22-wrong lot, 118 pairs April 28-short, 7 pairs May 4-short, 8 pairs 15 This illustrates how easily an error can be made with lot numbers containing five connected digits. FARAH MANUFACTURING CO. 689 May 6-short, 6 pairs and 4 pairs May 6-short, 33 pairs Marrufo's daily production averages for 1969 and 1970 were as follows: 1969 January-1,720 February-1,853 March-1,675 April-1,073 May-1,345 June-1,316 July-1,592 August-1,753 September-1,261 October-1,499 November-1,796 December-2,286 1970 January-2,044 February-2,183 March-2,000 April-not totaled May-not totaled Marrufo worked for Respondent 1 month less than 2 years and was given three wage increases. Prior to December 1969, his production was below the average range, but from December 1969 on it was well within the average range . His average of errors was not excessive; February 1970 was his poorest month with eight notations; March had four ; April had five; and May had three. I find that Marrufo would not have been discharged with his record of employment, production, and work errors in the absence of the union activities in the plant. 12. Carlos Vera discharged May 6, 1970 Vera was employed by Respondent in September 1968 and worked as an order puller. He received three merit wage increases, the last being effective the pay period ending October 15, 1969. The reason assigned for his discharge was "too many mistakes." Vera signed a union card on October 25, 1969. His name does not appear on any of the Union's telegrams. He attended most of the union meetings and solicited for the Union in the central corridor, but passed out no cards there. He passed out some cards in the cafeteria and received back about six or eight signed cards. He received a union button in January 1970, but he did not wear it throughout Sny day and some weeks he did not wear it at all. On various occasions, he would remove it so that supervisors would not see it . Supervisors Soza, Esman, Ekery, Meili, and Vice President Chemali testified that they did not see Vera wearing a union button. On the day of his discharge, May 6, Vera received a call to go to a packer's table. There Supervisor Soza called his attention to an error and told him he had made too many mistakes. He took Vera to another table and showed him some errors he had made on some "cash sales" of pants to employees. Soza said that he was sorry but that he would have to let him go. Notations of errors on Vera's production ledgers for 1969 and 1970 are as follows: 1969-one in January; two in May; and one in October. 1970 January 20-wrong lot, 9 pairs January 28-wrong color (quantity not legible) January 28-wrong color (quantity not shown) February 9-short, 18 pairs February 18-short, 19 pairs February 23-wrong color, 44 pairs February 25-short, 22 pairs February 25-short, 27 pairs February 28-wrong color, 7 pairs 16 March 2-wrong lot, 17 pairs March 4-short, 7 pairs March 16-short, 12 pairs March 17-wrong color, 11 pairs March 18-short, 16 pairs March 20-wrong color, 10 pairs March 31-wrong lot, 44 pairs April I-short, 4 pairs April 3-wrong lots, #3022 for #3020 and #3020 for #3022 (quantity not shown) April 6-wrong color, 20 pairs April 6-short, 7 pairs April?-wrong color, 10 pairs April 7-short, 36 pairs April 17-short, 40 pairs April 18-short, 16 pairs April 20-wrong lot, 21 pairs April 22-short, 8 pairs April 30-wrong lot, 22 pairs May 5-wrong color, 14 pairs May 6-wrong color, 19 pairs; also 5 "cash sale" tickets pulled wrong Vera's daily average production for 1969 and 1970 were as follows: 1969 ' January-1,602 February-1,679 March-1,385 April-1,708 May-2,195 June-1,895 July-1,414 August-1,558 September-1,678 October-1,824 November-1,826 December-1,961 1970 January-1,772 February-2,411 March-2,030 April-2,182 Vera worked for Respondent for 1 year and about 8 months; received three merit wage increases ; starting with IB Respondent's brief sets forth two notations for February 28, but Resp. Exh. 38 shows only one for that date. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 1970, his production averages were in the upper part of the average range; he had more than the average number of work errors in February, March, and April 1970 with 11 notations in April. Respondent had no knowledge of the union activities of Vera. Yet, prior to the advent of the Union, number of errors was not used as a sole basis for discharge In view of this fact, Vera's length of service, wage increases, and production rate, I find that he would not have been discharged in the absence of the union activities in the plant and Respondent's illegally motivated tightening-up measures.17 13. Gregorio Gutierrez discharged May 7, 1970 Gutierrez was employed by Respondent on March 18, 1969. The reason assigned for his discharge was "too many mistakes." Gutierrez received three wage increases during his period of employment; the last was received on February 25, 1970, and was in the amount of 20 cents per hour. He worked as an order puller in the shipping department. Gutierrez signed a union authorization card on February 5, 1970, and in March began wearing a union button; however, he wore it only intermittently. Supervisor Meili testified that he observed Gutierrez wearing a union button. Gutierrez also solicited on behalf of the Union in the central corridor. As previously set forth in paragraph G, sometime in February 1970, Gutierrez was talking with employee Ernesto Alfaro. Supervisor Aguirre came to Gutierrez and asked him what Alfaro had said to him and Gutierrez replied that he had told him something about the orders. Aguirre then asked him if he had signed a union card and Gutierrez said that he had not. Aguirre said that "this union bit is no good, don't sign." I have found that the interrogation constituted illegal interference. On May 7, 1970, the day of his discharge, Gutierrez was called to a packing table by Supervisor Soza, who told him that he had forgotten to pull 5 pairs of pants in a 25-pant order. Soza told him that he had been making mistakes, and he asked Gutierrez if he wanted to see his production book. Gutierrez replied in the negative. Gutierrez's production ledger shows notations of errors in 1969 and 1970 as follows: 1969-one error in May; one in June; one in July; one in August; two in October; three in November; and one in December. 1970 January 12-wrong lot, (quantity not shown) January 15-wrong lot, (#28077-78 for #28277- 78) 15 pairs February 4-wrong color, 15 pairs February 6-wrong lot, 8 pairs February 16-wrong lot, 19 pairs February 21-short, 4 pairs March 3-wrong color, 6 pairs March 4-wrong color, 6 pairs March 4-wrong color, 20 pairs March 6-wrong color, 8 pairs March 12-short (quantity not shown) March 17-wrong color, (quantity not shown) March 18-wrong color, 5 pairs March 20-wrong lot, 7 pairs March 20-wrong lot, 15 pairs March 30-wrong lot, 34 pairs March 31-short, 6 pairs and 6 pairs March 31-short, 4 pairs April 2-wrong color, 14 pairs April 13-short, 19 pairs April 15-short, 12 pairs April 17-wrong color, 10 pairs April 20-short, 7 pairs April 21-short, 6 pairs April 25-short, 4 pairs May 4-wrong lot (quantity not shown) May 7-short, 5 pairs The daily production averages of Gutierrez in 1969 and 1970 were as follows: 1969 April-1,318 September-1,618 May-1,281 October- 1,702 June-1,417 November-1,653 July-1,723 December-1,909 August-1,735 1970 January-1,855 February-2,313 March-2,082 April-No total May-No total Gutierrez testified that after he signed the union card on February 5, 1970, he paid more attention to what he was doing in his work because he was fearful of the possibility of a discharge and that he made less errors thereafter than he had made prior to that time. - Gutierrez and a few other employees worked during the period of the Christmas vacation in 1969. Supervisor Aguirre told Gutierrez that he was doing all right and that he would recommend him for a raise. In February 1970, Supervisor Ekery told Gutierrez he was doing all right and that he would get a raise. As previously noted, Gutierrez received a 20-cent-per-hour wage increase on February 25, 1970. Although he had signed a union card on February 5, he did not begin to wear a union button until March Gutierrez worked for Respondent approximately 1 year and 2 months; he received three merit wage increases; he received compliments from supervisors about his work in December 1969 and in February 1970. Gutierrez received a 20-cent-per-hour wage increase effective the workweek ending February 25, 1970 Gutierrez was illegally interro- gated in February; he started wearing a union button in March. His errors were excessive in number in March and April 1970, but better than average in all other months. His production average in 1970 was well within the average 17 Foster Co, 192 NLRB No 45 FARAH MANUFACTURING CO 691 range. I find that Gutierrez would not have been discharged in the absence of the union activities in the plant. 14. Isaac Soto discharged May 7, 1970 Soto was employed by Respondent in August 1967 and was an order puller in the shipping department at the Gateway plant. The reason assigned for his discharge was "too many mistakes." Soto received seven wage increases during his penod of employment, the last two being effective the weeks ending November 19, 1969, and April 15, 1970. The last increase was in the amount of 20 cents per hour Soto joined the Union on October 7, 1969. He attended most of the union meetings. He solicited on behalf of the Union and passed out approximately 20 authorization cards, none of which were returned to him; he engaged in this activity primarily outside the plant, in the parking lot, and in the restroom. He ate his lunch outside the plant, and recalls only one time that he participated in solicitation in the central hall. Soto did not wear a union button and his name does not appear in any of the union telegrams. There is no direct evidence that the Company had knowledge of his union membership or activities. On the day of his discharge, May 7, 1970, Soto was called to a packing table. Supervisor Soza called his attention to an order on which there was a shortage of 5 pairs of pants. Soza, in the presence of Supervisors Meili and Aguirre, told Soto that he had been making too many mistakes lately, and that he would have to let him go. The notations of errors on Soto's production ledgers for 1969 and 1970 are as follows: 1969-one error in May; one in June; one in July; one in November; and three in December. 1970 January 14--(Error not decipherable) February 2-short, 13 pairs February 5-wrong color, 6 pairs and short, 4 pairs February 12-wrong color, 22 pairs February 23-short, 8 pairs February 24-wrong lot, 51 pairs March 3-wrong color, 5 pairs March 10-wrong color, 5 pairs March 14-wrong lot (#22566 for #25566), 16 pairs March 18-wrong color, 10 pairs March 30-wrong color, 10 pairs and 10 pairs March 30-wrong size, 13 pairs March 30-wrong color, 4 pairs April 3-short, 17 pairs April 6-short 2 colors, 7 pairs April 13-short, 4 pairs April 13-wrong lot, 10 pairs April 14-short, 6 pairs April 18-wrong color, 23 pairs April 18-short, 4 pairs April 22-wrong lot, 26 pairs April 22-wrong color, 7 pairs April 24-short, 11 pairs April 27-2 wrong lots (quantity not shown) April 28-wrong lot, 5 pairs April 28-wrong color, 8 pairs May 4-wrong size, 17 pairs May 4-wrong color, 14 pairs May 5-wrong color, 6 pairs May 5-wrong color, 5 pairs May 7-short, 5 pairs Supervisor Soza testified that Soto was a high producer. His daily production averages in 1969 and 1970 were as follows: January-2,489 February-2,734 March-2,740 April-1,066 May-2,051 June-2,343 1969 July-2,072 August-2,054 September-1,975 October-1,466 November-2,067 December-2,243 1970 January-2,164 February-2,394 March-2,456 April-2,500 Soto worked for Respondent for 2 years and 9 months; he received seven merit wage increases, the last being effective the work week ending April 15, 1970, was in the amount of 20 cents per hour. Soto was a very high producer and was above the average range the last 2 months of his employment. When Supervisor Esman was assigned to the shipping department in the fall of 1969, Supervisor Ekery assigned Soto to train him and told Esman that Soto was one of their best workers and that he knew everything about the job. Soto's record of errors is excessive during the months of March and April 1970. Irrespective of Soto's high record of errors in April 1970, which is also the month he was given a 20-cent merit wage increase, and the fact that there is no evidence that Respondent had knowledge of Soto's union activities, I find that in consideration of his employment record and Respondent's illegally motivated tightening up on work errors, Soto would not have been discharged in the absence of the union activities in the plant. 15. Ernesto Alfaro discharged May 18, 1970 Alfaro was employed on September 23, 1965. He started as a bundle boy at the Third Street plant. In December 1965, he transferred to the shipping department in the Gateway plant as an order puller. He was discharged May 18, 1970, and the reason assigned was too many mistakes, low production, and conduct. During his period of employment, he received 10 merit wage increases with the last being on January 14, 1970. During his penod of employment, Alfaro trained eight or nine employees. Alfaro signed a union card on October 2, 1969. His name appears as the first name in the Union's telegram on 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 23. He was very active for the Union. He wore four or five union buttons. He talked to employees in the hall and in the cafeteria and in the parking lot and passed out about 50 to 60 union cards He witnessed the signatures on about 10 or 12 cards. He placed union stickers on the bumper of his automobile. He attended all union meetings except the first two. He participated in a union parade that was held on May 8 or 9, 1970. He was a member of the group of employees whose names were taken on December 12, 1969. (Para. E, 4.) On May 18, 1970, the day of his discharge, Alfaro had an appointment to see an eye doctor at 2:45 p.m. He told Supervisor Ekery that he had to leave at about 2:35 that afternoon. Ekery said it was okay and to let him know so that he could mark Alfaro out. At about 2 p.m., Supervisor Meili called Alfaro on the intercom. He told Alfaro to meet him at a certain place near the packing area. When Alfaro got there, Soza asked him if the order he had in his hand was Alfaro's order. Alfaro replied that it was. Soza told him that it was short three pants. Alfaro asked how that could be as he was sure he picked them out. Soza said, "Well, if they're not here, I'm sure you missed them." Alfaro insisted that he was sure he did pick them since they were the last item on the order and therefore the first item on top of the cart. Soza said the pants were not there. Then he took Alfaro to another part of the packing area and got another order and asked Alfaro if this was his order and Alfaro stated that it was. Soza said that it was missing eight pants. Alfaro testified that these were also the last items on the order and therefore would be on the top of the cart. Soza said that they were not here and that this meant he did not pull them. He asked Alfaro if he was saying that someone was cheating him or trying to foul him up Alfaro stated that if they were not there it meant that someone had taken the pants off the truck. Soza stated, "Well, we dust can't seem to be getting anywhere with you. You're making a lot of mistakes. We'll dust have to let you go." Then he turned to Meilh and told him to take Alfaro to the office. When an order puller delivers a completed cart to the work distribution area for packing, it is then assigned to a packer in due course for packing. Alfaro testified that he has seen packers go to this area and take one or two pants from a cart to complete another order that they are packing. Packers have taken pants from carts which have incomplete orders and which are being held for the arrival of particular items into stock. But there is no proof that packers take items from carts with completed orders. Occasionally, but infrequently, errors in orders are made in the office. When this is discovered to be the case, the error is not charged to the puller. On a couple of occasions this happened to orders of Alfaro On about six occasions in 1970, Alfaro was talked to about low production. On one occasion, he told Soza that his production was low because he was trying to be careful about making errors. On another occasion, he was shown some production figures by Mesh and told that his production was running about 500 to 600 pairs a day below the average puller. On one occasion, Soza told him that pullers with much less experience than he were having a higher production with fewer errors. Alfaro also testified that in the spring of 1970 his eyes were giving him trouble, but he did not mention this to a supervisor. Notations on Alfaro's production ledgers for 1969 and 1970 regarding errors, production, and conduct are as follows: 1969-six errors in February; two in June; one in September; and one in December. 1970 January 13-asked not to hold unnecessary conversation during working hours, see note in office. January 14-wrong color, 12 pairs January 15-short, 25 pairs January 23-wrong lot, 8 pairs February 3-short, 75 pairs February 6-told his production was low for the month of January February 17-short (quantity not shown) February 24-short (quantity not shown) February 24-told his production was better in January but still was low February 27-excessive talking in stock area March 3-excessive talking in stock area March 3-short, 9 pairs March 6-wrong color (quantity not shown) March I 1-wrong lots (quantity not shown) March 19-wrong color, 7 pairs March 31-wrong color (quantity not shown) April 6-short, 11 pairs April 9-short, 8 pairs April 9-low production April 10-wrong lot, 9 pairs April 29-low production May 4-short, 19 pairs May 4-wrong lot, 9 pairs May 12-short, 21 pairs and wrong color, 3 pairs May 13-talked to about low production May 14-talked to about his low production May 14-short, 8 pairs May 16-control numbers 271531-33 not signed May 16-wrong color, 21 pairs and short, 8 pairs May 18-short, 3 pairs May 18-short, 8 pairs The production averages for Alfaro in 1969 and 1970 were as follows: 1969 January-2,268 February-1,974 March-1,703 April-1,640 May-1,801 June-1,803 July-2,187 August-1,725 September-1,652 October-1,907 November-1,208 December-1,953 1970 January-1,474 February-1,765 FARAH MANUFACTURING CO 693 March-2,047 April-1,837 May-1,894 Alfaro worked for Respondent 4 months less than 5 years, and most of this was as an order puller. His production in 1969 and 1970 would average out at a little below the general average range; and in 1970 he made more mistakes than the average. Yet, during the tenure of his employment, his work merited 10 wage increases, the last one being effective the workweek ending January 14, 1970. He was also assigned to train new employees. Under all the circumstances, I find that Alfaro would not have been discharged in the absence of Respondent's illegally motivated tightening-up measures. I find that order pullers Emilio Casillas, Daniel Olivas, and Richard Carmona, and second separator Manuel Porras, and packer Richard Valenzuela would have been discharged by Respondent irrespective of the union activities in the plant and Respondent's illegally motivated tightening-up measures 16. Emilio Casillas discharged on January 22, 1970 Casillas was employed by Respondent on January 13, 1969, as an order puller. He was discharged a year later on January 22, 1970, and the reason assigned was that he was making too many errors and also conduct was a factor He received one wage increase dunng his period of employ- ment and that was on April 9, 1969. Casillas signed a umon card on October 22, 1969. He talked to about five persons about signing a union card, two of whom were his brother and sister. He did not distribute any union cards. The General Counsel contends that Respondent had knowledge that Casillas signed the union card on October 22, and this is based on the fact that Supervisor Serna was in the shipping room dunng the break period when Casillas signed a card upon solicitation by Guillermo Chavez. Serna was in the shipping room office area, a raised platform, about 90 feet from the packing table where the card was signed. Other packing tables were between them. Casillas testified that he observed Serna looking in his direction. Serna testified that he did not see Chavez sign up Casillas for a union card. On October 22, 1969, there was widespread distribution of union cards at Respondent's plant; this was shortly before the broad no-solicitation rule discussed in para- graph D was promulgated and enforced. President Farah had observed the distribution of union cards that day in the parking lot and in the shipping area before work started. Casillas did not wear a union button, although many of the union adherents started wearing them on or about January 8, 1970 In view of the equivocal nature of Casillas' testimony about his union activities and also about the work order that led to his discharge on January 22, 1970, I find that the extent of his union activities was the signing of a union card and talking to a few people about joining the Union. I find that Respondent had no knowledge of his union activities. Casillas was discharged on January 22, 1970, following an error on an order involving a shortage of 20 pairs of pants. Casillas' testimony about the matter is not clear and conflicts with his affidavit as to whether or not the order had been completed by him. He testified that the order was incomplete and that he did not turn it in for packing, yet in his affidavit he stated that it "had been completed and was ready for packing." The order involved items that were not in stock when Casillas first received it; he added to the order as items came into stock. He testified that the last time he added pants to the order was in December 1969, and that he had not turned it in for packing when he was called down about it being short 20 pairs of pants on January 22. On January 22, Casillas was called to a packer's table and talked to by Supervisor Soza and Vice President Chemali about the order. Soza asked him what had happened; Casillas replied that he did not know. Chemali asked him if he had any mistakes before, and Casillas replied, "Yes, a lot of mistakes." Soza then said, "Well, there is no hope for you. We're going to have to let you go. Entries on Casillas' production ledger regarding errors in 1970 are as follows: January 5-wrong color, 12 pairs January 15-wrong color, 35 pairs January 17-wrong color, 10 pairs January 17-wrong lot (quantity not shown) January 20-wrong color, 32 pairs January 20-wrong color, 35 pairs January 20-short, 15 pairs January 20-short, 10 pairs January 22-short, 20 pairs In 1969, there is only one entry on his production ledger for the period of November 1 to December 31 and that was on November 1 and was for conduct during the inventory. The entry is "laughing and disturbing the counters too much-sent home, also used profanity against man-in- charge of crew." He called an employee, who was serving as captain of a crew of employees, a son-of-a-bitch or a brown-noser; he spoke in Spanish. He was reprimanded for this conduct and sent home for the rest of the period of the inventory. This was on November 1, Saturday, and the inventory was completed on Sunday, November 2. For the remainder of the year 1969, the entries on his production ledger are as follows- two errors in January; one error in May; two errors in June; one error in July, two errors in August; two errors in September; and one error in October, a total of nine notations. Casillas' daily production averages were as follows: 694 February-1,235 March-1,301 April-1,643 May-1,532 June-1,471 July-1,483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1969 August-1,373 September-1,387 October-1,673 November-1,591 December-1, January 1970-1,522 In no month did his average production reach the average range. Due to Casillas' relatively short period of employment, poor work record and lack of wage increases, I find that he would have been terminated irrespective of the union activities in the plant and Respondent's illegally motivated tightening-up measures. 17. Daniel Olivas discharged January 26, 1970 Olivas was employed by Respondent in June 1969 as an order puller and was terminated on January 26, 1970, and the reason assigned was that he made too many errors. He received one merit wage increase during his employment and this was on December 3, 1969, and was an increase of 15 cents per hour. Olivas Joined the Union on November 18, 1969 His name appears in the Union's telegram of January 8, 1970, and Olivas started wearing a union button on that date Following that date, he passed out authorization cards in the central corridor at noon and attended union meetings On December 16, 1969, Olivas went to Supervisor Ochoa and asked if he would retrain him. Olivas testified that he did this because of an error he made that day; he became nervous and fearful about his job because he had put some tape on a plastic bag containing pants in order to keep them from slipping off the cart When he started to remove the tape, he found that he could not do so without tearing the plastic bags. Pursuant to his request for retraining, the next day Supervisor Esman worked with him part of the day. In January 1970, Olivas made errors on January 14, 23, and 26, and was talked to by Soza and Chemali on these occasions. On January 23, Olivas told them that he was having trouble with his eyes Later that day, he went to see the company doctor about his eyes and his skin condition. He testified that "I was doing errors and I had this problem, nerves, I guess." He testified that he broke out with skin rash because of his nervousness. The doctor asked him what was his problem and he told the doctor that he was nervous because of the pressure that was being put on him on his job. But Ohvas had had problems with his skin and his eyes before union organizing began and before Respondent began tightening up in the shipping department. He had had a skin rash before he started working for Respondent and also in July 1969, when it was caused by a personal problem. Also when Olivas was first employed by Respondent, he went to see Respondent's eye doctor and obtained glasses, and in October 1969 his eyes were reexamined and new glasses prescribed. On January 23, 1970, Olivas asked Supervisor Ekery if he could change his job. He asked him again on Saturday, January 24. Ekery told him that he would see about it on Monday. On Monday, January 26, Olivas asked him again, and Ekery replied that he was going to see about it right then. Later that day, January 26, Olivas was called to the packer's table and was talked to by Soza and Chemali about an error he had committed Soza told him that he was short six pairs of pants on the order. Olivas replied that his was a back order, that he had pulled those pants 2 weeks before, and that he did not know what could have happened to the pants. Soza told him that he would have to let him go because he was making too many errors. During 1970, Olivas worked from January 8 through 26. His production ledger shows entries for errors as follows: January 14-3-wrong color 25 pairs; short 1 color, quantity not legible; wrong lot, quantity not legible January 23-1-short I lot number January 26-2-short 1 lot number ; short I color During 1969, Olivas worked as an order puller from July 18 through December 31. His production ledger shows entries for errors as follows: two in August; one in September; two in November, and five in December Regarding Olivas' request for a transfer to another type of work, Respondent has no consistent policy on the matter. Some employees who have been unable to perform in one job have been offered transfers and some have been transferred; others have not been given transfers but have been discharged. From the evidence, I do not find that Olivas was discriminatorily refused a transfer to another job. Respondent's records (Resp. Exh. 110) show reason for discharge of Olivas as "too many mistakes; production below average." Yet, his production was not mentioned to him at the time of his discharge, nor is there any evidence that he was reprimanded for it or that it was discussed with him at any time or that he was warned of the possibility of discharge because of low production. In September, October, or November 1969, Supervisor Ochoa on several occasions and Supervisor Ekery asked Olivas if they could be of any help to him in his work. Supervisor Soza was asked to testify as to whether mistakes and low production were of equal consideration in the discharge of Olivas or whether either one stood out, and he testified, "The mistakes, too many mistakes." Olroas' daily production average during his employment as an order puller from July 1969 through January 1970 is as follows: 1969 July-826 October-1,300 August-I,300 November-1,045 September-927 December-1,405 January 1970-1,311 On December 3, 1969, Olivas was given a 15-cent-per- hour wage increase, and thereafter his production showed a noticeable increase; yet throughout his employment his production average was well below the average range. Olivas worked for Respondent as an order puller about 6 FARAH MANUFACTURING CO. 695 months. He was a very low producer. He had a physical condition involving his eyes, skin, and nerves, which, apparently, the tension of the job affected. He was given a wage increase on December 3, 1969. But, considering all factors, I am inclined to the view and find that Olivas would have been discharged for lack of potential and progress irrespective of the union activities of employees 18. Ricardo Carmona discharged February 13, 1970 Carmona was employed by Respondent in January 1969 as an order puller. He had two wage increases, the first effective the week ending April 9, 1969, and the last effective the week ending January 14, 1970. The reason assigned for his discharge was "too many mistakes" and "production below average." Carmona signed a union card on September 30 and his name appears on the Union's first telegram dated October 22, 1969. He attended some union meetings, he solicited and distributed authorization cards in the central corridor, and he wore a union button for about 3 weeks when they were distributed in the first part of January 1970. He was one of the employees attending the employee meeting on December 12 in the shipping department when supervisors took down the names of all present. (See para. E,4.) In the latter part of January 1970, Carmona discontinued wearing his union button, and also in January he discontinued soliciting in the hallway for the Union except perhaps a time or two. On February 13, 1970, shortly before 9 a.m., Supervisor Soza came to Carmona at one of the packing tables and, in the presence of Vice President Chemali, asked him if he was having any trouble with the orders and told him if he was, he should have called a supervisor; he told Carmona that he was making too many errors and that this last one was a big error and that it meant he was going to have to let him go. On that occasion, Carmona had pulled 30 pairs of pants of a wrong color. Carmona's production ledger shows notations of errors as follows: 1970 January 6-short, 47 pairs January 16-short (illegible number) pairs January 17-short, 23 pairs, and a 5-pair error on same order January 19-short, 10 pairs January 30-wrong lot (quantity not shown) January 30-short, 7 pairs February 5-wrong color (quantity not shown) February 7-short, 4 pairs February 9-wrong lot (quantity not shown) February 11-short, 16 pairs February I1-short, 13 pairs February 13-color wrong, 30 pairs No notations from January to September 1969, but: September-l notation of wrong color October-no notation November-2 notations, wrong color and a wrong lot December-6 notations, 4 wrong colors, I wrong lot and I short Carmona was talked to by supervisors about errors in both 1969 and 1970 and was told to be more careful. In January 1970, Supervisor Aguirre or Moreno told him on one occasion that he had about eight or nine errors and to be more careful because he was wasting the time and money of the factory. Shortly before Christmas in 1969 Carmona was told by Supervisor Ekery, "I've been looking over your records, and you had good production. You're going to get a raise " Carmona received a 15-cent-per-hour wage increase effective the pay period ending January 14, 1970. Carmo- na's production rate showed improvement in December 1969 and January 1970 His daily production averages are as follows: February-892 March-1,148 April-1,416 May-1,537 June-1,399 July-1,197 August-1,406 September-1,372 October-1,262 November-1,333 December-1,567 January 1970-1,733 Carmona's production during his entire employment was very low; in fact, at no time did his average daily production reach the average range. When his production showed some improvement, his errors exceeded the average range for errors and continued so for his last 3 months. Although Carmona's production improved some in December 1969 and in January 1970 and he was given a wage increase based thereon, his overall work performance was very poor and he had worked for Respondent only I year and 1 month. I find based thereon that Carmona would have been terminated irrespective of the union activities in the plant. 19. Manuel Porras discharged. April 24, 1970 Porras was employed in October 1968, and was dis- charged April 24, 1970. During this period, he was second separator. The reason assigned for his discharge was low production. He received three wage increases, the last being received on December 3, 1969. He signed a union card on October 23, and his name is on the Union's telegram of December 12, 1969. He wore a union button and attended all meetings after joining. He talked to employees in the hall, gave out about 25 cards, none of which were returned to him. On about February 16, 1970, Supervisor Esman separat- ed the as second separator-stockers, 9 were assigned as stockers and 18 as second functions of second separating and stocking. Of the employees classified separators. Porras continued to work as a second separator. Because of the separation of these functions, the average production of the second separators increased. Porras' average daily production was consistently below that of the other second separators and in fact his daily average production was lower than that of any other second separator. Esman 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talked to all separators on a daily basis about their production. When he would talk to Porras, Porras' production would increase temporarily. Esman tried to work with Porras to increase his production. On April 22, Esman spoke to Porras about his low production of April 21. His production on April 21 was 4,758, and on April 22 he increased it to 5,983. Esman reviewed his production record again on Friday, April 24, and noticed that Porras' production for April 23 had dropped to 5,282. The average or expected daily production of second separators after February 16, 1970, when they ceased stocking, was about 6,000 pairs of pants per day. Although some of the other second separators were below average part of the time, there is no question but that Porras had a much poorer production record than any other second separator. On April 24, 1970, Esman called Vice President Chemali and reported that he wanted to discharge Porras because his production was the lowest and he did not improve. Chemali looked at the production record of Porras and talked to him and asked him what was wrong. Porras replied that sometimes he could do it and sometimes he could not. He was discharged on April 24 because of his low production. I find that the discharge of Porras would have occurred irrespective of the union activities in the plant. 20. Richard Valenzuela discharged on July 30, 1970 Valenzuela was employed by Respondent on March 3, 1970, as a packer at the Gateway plant Two weeks later his pay was increased 10 cents per hour, from $1.70 to $1 80. He had previously worked for Respondent in the summer of 1968 and left on August 21, 1968, to return to school. His timecard after this period of employment was marked, "No rehire." Valenzuela was terminated on July 30, 1970, and the reason assigned was too many errors. Valenzuela signed a union card on April 15, 1970; his name appears on the union telegram of May 7, 1970. Valenzuela participated in a union demonstration in downtown El Paso in May and thereafter became rather active on behalf of the Union. He started wearing a union T-shirt and a vest containing about 25 union buttons, and he distributed buttons to others. Valenzuela was discharged on July 20, 1970, after an accumulation of errors in his work as a packer and after repeated warnings about his errors and also about his low production. The previously mentioned average daily production and monthly average number of work errors was for pullers and is not applicable to packers. On July 10, Valenzuela was warned a second time about his low production. On July 20, he was reprimanded for packing several orders that had not been completely checked. Again, on July 30, he packed an order that had not been checked. For this, as the culmination of a poor work record, he was discharged. Based on the short period of employment of Valenzuela, the notation on his record to the effect that his prior period of employment was not satisfactory, and the poor work record that he accumulated from March to July 1970, I find that he would have been discharged on these considerations irrespective of his union activities or the union activities in the plant and irrespective of Respon- dent's tightening-up measures. 1. Discharges in Other Departments Related to Low Production 1. Gerardo Ciriza discharged January 28, 1970 Ciriza was employed by Respondent on October 3, 1968, as a topper in the pressing room at the Gateway plant. A topper is an employee who presses the top part of pants by a machine designed for this purpose. Respondent employs approximately 100 to 125 toppers. Toppers are employed on approximately 20 production lines, there being 5 or 6 toppers on each of these lines. At the time of his discharge, Ciriza was on a line doing the pressing on "executive" models or types of pants. Some types of pants, such as men's shorts and hard-weave executive pants would be harder to press than the executive models that Ciriza was working on. Other lines were doing models or types of pants that would be easier for the presser than the executive models. The reason assigned for the discharge of Ciriza on January 28, 1970, was that he was the lowest producer on his production line. During his period of employment, Ciriza received one wage increase and this was given to him on April 9, 1969. Ciriza signed a union authorization card on October 22, 1969, and his name appears on the union telegram dated October 23, 1969. He attended union meetings and stood in the central corridor during the lunch period and solicited on behalf of the Union. -Shortly after the Christmas holidays in 1969, Ciriza's supervisor, Stan Okies, was replaced by Supervisor Jimmy Flack. Flack talked with Ciriza frequently about his low production. Also, Department Supervisor Ernest Goeldner spoke to him about his production, telling him to bring it up. Ciriza was discharged on January 28 by Goeldner with Flack being present. Goeldner told Ciriza that he had been told many times about his production and that they had tried to help him and that his production was dust not coming up and they had to let him go. Ciriza's production was substantially and consistently below that of the other four toppers on the same executive line of production. Ciriza seldom had days on which he pressed in excess of 40 pairs of pants, whereas the other pressers on the same line seldom pressed less than 41 pairs a day. It is noted, however, that Ciriza's production remained at substantially the same level throughout the entire year of 1969 and the first month of 1970. The General Counsel contends that there are other pressers on other lines whose production was no better than that of Cinza's, but there is no accurate basis for comparing the work of Ciriza on the executive line with toppers on other lines pressing other types of garments. The production records on the various toppers differ widely; for example, topper Julieta Martinez consistently pressed between 10 and 16 pairs of pants per day during the period of January through August 1969. Starting with March 1970, she consistently pressed in excess of 40 pairs of pants per day This wide variance suggests that the FARAH MANUFACTURING CO 697 pressing was done on these different months on different types of garments. In view of the fact that Ciriza's production was consistently less than that of any other topper on his production line, he had been repeatedly spoken to and reprimanded about his production, he had received only one wage increase in his 1 year and 3 months of employment, I find that he was discharged for the reason assigned and that it would have occurred irrespective of the union activities in the plant. 2. Rosa Maria Castro discharged on May 13, 1970 Castro started working for Respondent as a sewing machine operator on September 15, 1966, at the Paisano plant. She received four wage increases in her first 2 years of employment, the last being given on February 7, 1968. She was discharged on May 13, 1970, and the reason assigned was low production. Castro signed a union card on April 6, 1970 She solicited on behalf of the Union and participated in a downtown demonstration on May 9, 1970. She had eight union stickers on her automobile containing the words "Go Union ACWA." Castro's solicitation of employees consist- ed of talking to two girls at the plant and two employees outside the plant and passing a union card to one employee. She testified that on the day of her discharge and about 25 minutes before discharge, she wrote on the reverse side of a pink production slip the words "ACWA at Farah " With tape she stuck this to her sewing machine. The piece of paper was 9 1/2 inches long and 3 inches high. She taped the paper on the side of the sewing machine table. She testified that she placed this there because earlier that day some employees had solicited her to purchase a "happy" button distributed by others opposed to the Union. On May 13, 1970, at about 10.20 a.m., Castro's machine broke down. She turned on the signal for a mechanic, but one did not come She then approached her supervisor, Johnny Mansour, and he called a mechanic. Castro started sewing again at about 11:30. A few minutes later, Plant Supervisor John Isaac came to her machine and asked her why she had done only 15 items as of that time and she replied that this was the usual amount that she had completed by that time. He told her that she was not doing enough work and he would have to let her go. Of the 14 operators performing the samejob function as Castro, Castro had the lowest production. Her poor work record is further evidenced by the fact that she received no wage increase in the last 2 years and 3 months of her employment and by the fact that her Christmas gratuities in 1968 and 1969 were substantially less than in 1967-$7 and $10 for the last 2 years and $41.50 for 1967. Christmas gratuities are based on length and caliber of service and normally increase from year to year Also, her 1970 production record shows several notations of reprimands regarding "low production" and "no improvement" made throughout her 4 1/2 months of employment in this year The union demonstration in downtown El Paso occurred on Saturday, May 9. Part of it was on television and it involved approximately 200 persons. Castro did not wear a union button and did not solicit actively at the plant. The General Counsel contends that Respondent must have had knowledge of her union activities because of the sign she placed on her desk the morning of her discharge and/or because of her participation in the demonstration on May 9 and/or because of the sticker that she placed on her automobile. Both Mansour and Isaac credibly testified that they did not see the sign Castro placed on her workbench that morning nor had they seen her on television in connection with the demonstration on May 9. On May 14, 1970, the Union sent Respondent a telegram listing employees who were members of the Union and on its committee and the list includes the name of Rosa Maria Castro; but this was the day after Castro's discharge. Castro's production was substantially below that of most of the other sewing machine operators doing the same type of work, but her production had been low throughout 1970 (a record of her production in prior years is not in evidence) A question arises as to why Respondent retained this employee for 3 1/2 years if her production in prior years was no better than it was in 1970 and then discharged her about 5 weeks after she joined the Union; but in view of the extreme poorness of her work record, as further evidenced by her lack of wage increases and reduction in amount of Christmas gratuities, I find that she was discharged for the reason assigned rather than union activities. J Discharges Related to Absenteeism or Lateness 1. Discharge of Hector Caballero and Roberto Rodriquez on November 29, 1969 The reason assigned for the discharge of Hector Caballero and Roberto Rodriquez on November 29, 1969, was their failure to report to work on Friday, November 28, the day following the Thanksgiving holiday without an adequate excuse. Respondent has had a rule for some time that an employee will be discharged if he does not report for work following a holiday or on a Monday, Friday, or Saturday unless he has an acceptable explanation for his absence. Normally, such employee may reapply for work as a new employee at any time after 2 weeks following such termination. Both Caballero and Rodriquez live in the town of San Elizario which is about 20 miles from the Gateway plant. On Thanksgiving Day, November 27, 1969, it snowed in the El Paso area and it snowed again on Friday, November 28. Since September 1969, Rodriquez had been riding to and from work with Caballero. Their reporting time is 7:30 a.m. each workday. On Friday, November 28, at about 7:30, Caballero called the plant and talked with his supervisor, Joe Serna, and told him that he was having car trouble and that Roberto Rodriquez was with him. Serna told him, "Well, come to work as soon as you can." Caballero then picked up Rodriquez shortly after 7:30 a.m. The route he followed to work goes through the towns of Socorro and Ysleta, and from Ysleta he turns to Interstate Highway 10 On Friday morning, they had proceeded about 5 miles to the outskirts of Socorro when Caballero's truck slid off the highway. They spent about 30 minutes trying to get it back on the road but they were 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unable to do so. Caballero then walked to a house nearby and called Serna and told him that they had skidded off the road and could not get his car out. Serna told him to come to work as soon as he could. Caballero and Rodriquez tried for a little longer to get the truck out of the ditch but were not successful. They then proceeded to walk back to the house of Caballero, cutting through fields. Caballero had his father dnve his automobile to the scene of the accident and they attempted to pull the stuck truck from the ditch but were unsuccess- ful. They then proceeded to the town of Ysleta and obtained a tractor from a brother-in-law of Caballero. With this, they were able to get the truck out of the ditch. The time was shortly after noon . As the battery of the truck was dead, they towed it to Ysleta. They were able to get the car started with jumper cables. They then returned to their homes in San Elizario. The time now was about 1:45 p.m. They were dirty and wet and decided that there will be no point in going to work at that late hour since it would require about 45 minutes to make the trip , and this would leave little time left in the workday. The next morning they reported for work at 7:30 a.m., but their timecards were not in the rack They waited to talk with Serna . A number of other employees had failed to report for work on the pnor day and were also waiting to talk with a supervisor. Before talking with Caballero and Rodriquez, Serna called Vice President Chemali and told him that they had called him twice on the pnor morning, one time to tell him that they had car trouble and a half hour or so later one of them called to say that the car was stuck and that therefore he "had two stories." Chemali and Serna went to the hall where the two employees were waiting, and Chemali asked them why one had called in and said they had car trouble and the other called in about 30 minutes later and said they were stuck . He asked, "Now, what is the story?" Caballero said that what they were trying to say was that the car trouble was that the car was stuck Chemali said that it seemed to him that they could have gotten the car out and managed to come to work by noon . Caballero said that it took all day; that they had to get a tractor to pull it out. Chemali told them that they should have been able to get the car out in half a day and gotten to work by noon; that they had not made any effort to come to work . He testified that as far as he was concerned they just took the day off, so he discharged them 18 Rodriquez and Caballero started to work for Respondent in January and March 1969, respectively ; Rodriquez as a cleanup man in the shipping department and Caballero as a puller. Each received two wage increases . Both signed union authorization cards on October 22, 1969, and Caballero was included in the union telegram of November 26, 1969. Rodriquez testified that he was not at the union meeting on the night this telegram was signed by the employees . Rodriquez attended only two or three union meetings and asked three or four friends tojoin the union. He distributed no authorization cards. I find that Respon- ix Caballera's testimony is contradictory as to whether he called in once or twice and for this reason and the standpoint of plausibility some doubt is cast on the credibility of some of Caballera's testimony , and I find the facts dent had no knowledge of the union activities of Rodri- quez. Rodriquez also explained that a reason he did not call in when they reached home after the accident was that Caballero had already called once, and he had been told by Caballero that Serna said it was all right and to make it to work if he could Respondent's record of application of the rule about absences before or after holidays is as follows: In 1968, three employees were discharged for being absent before or after the Thanksgiving holidays. In 1969 there were no discharges for absences in connection with the Fourth of July holiday or Labor Day holiday; following the Thanks- giving holidays in 1969, however, 15 employees were terminated for absences-3 from the Third Street plant, 6 from the shipping department of the Gateway plant, and 6 from phase II of the Gateway plant. In 1970, 10 employees were discharged for absence after the Fourth of July holiday; 3 employees were discharged for absence after Labor Day, and 1 employee was discharged for absence following Thanksgiving. There seems to be an inordinate number of discharged after Thanksgiving in 1969. The weather conditions that prevailed in the El Paso area during this period could have accounted for an increase in number of absences, and at the same time this condition should have been an acceptable explanation for many of the absences . The purpose of the rule was to prevent any tendency of employees to take long weekends or long holiday periods; absenteeism before and after weekends and before and after holidays had been a problem for Respondent The issue here is whether or not Respondent applied the rule more strictly in November 1969 as part of its tightening-up program of retaliation because of the union activities of employees or whether it was applied as it would have been in the absence of union activities in the plant. Serna and Chemali thought Caballero and Rodnquez were not telling the truth with their "two stories," when in fact they were. Also, Chemali testified that he thought that with the problem they reported, they should have been able to correct it and get to work by noon . Caballero and Rodriquez were in fact out of the ditch shortly after noon, and in Ysleta they were about half way to the Gateway plant Having been working with a stuck truck most of the morning, they were muddy and wet apparently in need of a change of clothing. In view of the fact that Respondent had, about 30 days prior to this, discharged the instigator of the Union and had started a program of tightening up work rules and work standards, as evidenced throughout this Decision, and in view of the extraordinarily high number of discharges made in application of this rule in November 1969, I am convinced and find that in the absence of the union activities in the plant at this time , Chemali would not have been so strict and suspicious and of a closed mind as to the explanation of Caballero and Rodnquez for their absence on the Friday following Thanksgiving in 1969. I to be as I have set them forth in the body of this decision I do not credit the testimony of Caballero that Serna told him that if he could not get his truck out and could not make it work , it would be all right FARAH MANUFACTURING CO. 699 find that they would not have been discharged under the facts that existed herein in the absence of the union activities in the plant. 2. Ruben Lucero discharged June 19, 1970 Lucero was employed in February 1967 at the Gateway plant as a bundle boy. His immediate supervisor was Luis Rico. The reason assigned for the discharge of Lucero on June 19 was lateness in getting to his work station. During his period of employment, Lucero received seven merit wage increases and received Christmas bonuses in 1968 and 1969. He was very active on behalf of the Union. He solicited and gave out authorization cards; he distribut- ed about 100 union buttons; he wore about 4 union buttons-3 on his apron and 1 on his left shoulder; he wore a union T-shirt for about 2 or 3 months before his discharge. He had union stickers on the bumpers of his car. He signed a union authorization card on September 30, 1969, and signed the union telegram dated October 23, 1969. He attended all union meetings except two or three and participated in the union parade and rally in May 1970. On four occasions, he noticed President Farah just standing and looking at him. He was told on one occasion by a girl employee that Farah was watching him and when he looked up he noticed Farah looking at him and then Farah turned and looked another way. These occasions occurred after the union telegram. Prior to the Union's telegram, Lucero saw Farah about once a month or once every other month in his work area. After the telegram, he saw him almost everyday. In April 1970, Lucero was subpenaed to be present at a representation hearing involving employees of Respondent in Case 28-RC-2023. The hearing was conducted on April 15, 16, 17, 20, and 21, and Lucero was present in the hearing room during the last 4 days of the hearing. He showed his subpena to Rico. At the hearing, Vice President Chemali spoke to him. The day after the representation hearing, Supervisor Rico asked Lucero why was it that he was just barely on time to work Lucero replied that as long as he was not late, Rico could not say anything to him about it. This was the first time anyone had spoken to Lucero about lateness in getting to a work area. A few days later Supervisor Goeldner and Vice President Chemali came to Lucero and Chemali asked Lucero if he had been engaging in any union activity that morning and Lucero said that he had not. Then Chemali asked him, "Didn't you pass any union button this morning?" Lucero replied that he did. Chemali said that this was considered to be union activity. Lucero told Chemali that as he came out of the restroom that morning during the break period a girl asked him for a button and he gave her some. Chemali told him that this sort of activity could not be tolerated in a working area at any time. Lucero said he thought he could do this during the breaks and at lunch. He was told again that he could not engage in this type of union activity in a working area at any time. This incident is set forth in paragraph D and found to constitute an unfair labor practice. The next person to speak to Lucero about lateness was Victor Valverdi, a mechanic supervisor. This was in May 1970. On several occasions, Lucero would see Valverdi as he came from the timeclock to his work area and Valverdi would make a motion toward his watch. This particular morning Valverdi hollered at Lucero and Lucero did not pay any attention to him but kept on walking. Valverdi caught up to him and asked why he had not stopped when Valverdi called him. Lucero told him that he did not like to be yelled at and that was the reason he had not paid any attention. Valverdi told Lucero to follow him. They went to the hallway and called Supervisor Victor Chemali. Valverdi told Chemali that Lucero did not pay any attention to him when he called him. Chemali asked Lucero why he did not pay any attention and Lucero said that he did not like to be yelled at. Victor Chemali then told Valverdi not to yell at Lucero, and he told Lucero to try to get there earlier in the mornings. On the day of his discharge, June 19, Lucero got to his work area dust as the bell was ringing. He punched the timeclock that morning at 7.28 a.m. Valverdi came to him and told Lucero to follow him. They went to the hallway and waited for Victor Chemali. Chemali asked Lucero if he did not understand before that he was supposed to be at his work station by 7:30 and Lucero replied yes and said that he was not late but had arrived at his work area at the time the bell sounded. Lucero does not have a machine or a table or an exact place of work. As a bundle boy, hisjob is to pick up piece goods and take them to a marker to be marked. He gets his assignments on the day before. The timeclock is located about 500 feet from his work area. Lucero was late for work on only two occasions in 1970 and this occurred in the early part of February on two succeeding days. It was due to car trouble; he called and talked with Supervisor Ernest Goeldner and the lateness was excused. Starting with May 20 and continuing to June 12, Supervisor Valverdi made notations on Lucero's pro- duction record that he was"late to area" on eight occasions. Employees Lucero, Guillermo Chavez, and Manuel Porras testified that they have been told they are to be at their work areas by 7.30 a m, but, if there was such a rule prior to the union activities at the plant, it was not mentioned or enforced. An employee is not late for work if he punches in by 7:30 a.m. There is no contention that Lucero was late for work at any time in 1970 except the two excused latenesses in February. The first time that lateness to the work area was mentioned to Lucero was his first workday after the representation hearing in April 1970. Thereafter, and after 3 years and 4 months of employment with seven wage increases, Respondent became very concerned about the moment that Lucero arrived at his work area. Supervisor Goeldner said it would be pretty hard to walk 500 feet in 2 minutes; Lucero testified that on June 19 he walked fast and arrived at his work area just as the bell was sounding, and I find that he did. Lucero's timecard is not in evidence, and there is no evidence as to the exact moment he punched in on other dates. I find that Lucero would not have been discharged in this instance in the absence of the union activities in the 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant and in particular his presence at the representation hearing conducted in April 1970. 3. Oscar Arellano discharged October 8, 1970 Arellano was employed by Respondent on January 23, 1968. He started as a presser and later became a mechanic at the Paisano plant. He received four wage increases during his employment, the last effective on February 25, 1970. Arellano was terminated on October 8, 1970, and the reason assigned was primarily his repeated lateness, and secondly, his poor work record. Arellano joined the Union on May 13, 1970, and his name was included on the Union's telegram of May 14, 1970. Thereafter, he solicited on behalf of the Union and distributed authorization cards and generally wore a union button. The General Counsel contends that the reason assigned for the discharge of Arellano was a pretext and that the real reason was his union activities. The starting time for mechanics at the Paisano plant is 7 a.m., Tuesday through Friday, and 7:30 a.m. on Monday and on Saturday. During 1970, Arellano was late for work on the following occasions: April 28, Tuesday-7:18 April 29, Wednesday-8 29 August 19, Wednesday-7.32 August 25, Tuesday-7:17 September 1, Tuesday-7.38 September 2, Wednesday-7:18 September 17, Thursday-7:24 October 8, Thursday-7:01 Supervisor Gustavo Lopez spoke to Arellano on the occasions of his lateness and posted the fact of the lateness on his production record. On one occasion, Plant Supervi- sor John Isaac spoke to Arellano about his lateness. On October 8, Lopez observed Arellano walking fast toward his work station; Arellano had clocked in 1 minute late. Lopez called Isaac and told him, "Oscar is late again." Isaac told Lopez that he would take care of it. Isaac then decided that he would discharge Arellano because he had been talked to before about coming in late and was late again, and also because he had received reports from time to time from other supervisors about the work performance of Arellano-that Arellano was having difficulty fixing the sewing machines He called Vice President Chemali and explained the situation to him and secured Chemah's approval for the discharge. Isaac then called Arellano and told him that his work performance was very poor and that he was constantly coming in late and was showing no improvement and therefore he was being terminated.is Supervisors Johnny Mansour and Jimmy McLaughlin testified about instances of poor work performance by Arellano. Mansour was the production supervisor at the Paisano plant. McLaughlin is the quality supervisor at the Paisano plant. In March 1970, Mansour made a notation in the production record of Arellano that he had no hustle. On this occasion, Mansour observed and concluded that Arellano was not getting around to the machines and trouble as quickly as he should. On another occasion, a girl operator had to wait 30 to 45 minutes for Arellano to come to her machine to repair it. When the girl reported that a mechanic had not come to her machine, Mansour began looking for Arellano and found him in another area talking to another mechanic. This occurred on May 26, 1970, and was entered by Mansour on the production record of Arellano. On one occasion in July 1970, Arellano was called back three times to repair the same machine. McLaughlin testified that on one occasion a girl operator complained that Arellano had worked on her machine for 4 days and she was still having difficulty with it McLaughlin called Arellano and Arellano said he could not repair the machine and that there was nothing wrong with it. McLaughlin then called Lopez who sent the head mechanic over to fix the machine. I find that Arellano was discharged for the reasons assigned and not because of his union activities. K Discharges for Alleged Misconduct 1. Jose Velarde discharged November 6, 1969 Jose Velarde was employed by Respondent on April 20, 1968, as a packer in the shipping department and was discharged on November 6, 1969; the reason assigned was that he failed and refused to purchase some scissors or clippers to replace a pair that had been lost or stolen and which he needed in his work, after having been given a direct order to do so. Velarde was given merit wage increases on July 17 and November 27, 1968, and on April 9, 1969. He signed a union card on October 14, 1969, and his name was included on the Union's telegram of October 29, 1969. Velarde attended all union meetings after he joined the Union; he passed out about 15 union authorization cards in the central corridor of Respondent during lunchtime and solicited there on behalf of the Union. On the day following the union telegram of October 29, a fellow employee stated aloud in the presence of Supervisor Arthur Aguirre that Velarde had joined the Union. Velarde testified that thereafter Aguirre started putting pressure on him, but his testimony is very vague and general in this regard, and insufficient to support a finding as to this contention He testified that Aguirre told him he was stacking his pants wrong, although it was the way he had been doing it all along; that Aguirre told him he was not keeping his tape machine organized; that this contin- ued until he was discharged. On November 4, 1969, shortly before quitting time, Velarde noticed that his scissors were missing. Sometime the next morning, November 5, he was looking for them and Aguirre asked him what he was looking for. He told Aguirre, and Aguirre told him to try to find them and, if he could not, then to get some. In the afternoon, Aguirre asked him if he had gotten his clippers and he stated that he had not. Aguirre told him not to forget to get some and to have them the first thing the next morning. On the morning of November 6, 1969, Aguirre asked 'y I do not credit the testimony of Arellano that neither Isaac nor Lopez made any mention to him on that day about his being late for work FARAH MANUFACTURING CO. 701 Velarde if he had gotten his clippers, and he replied that he had not. Aguirre told him that he had "better go get them." Velarde said he had already bought one pair and was not going to buy another pair. The first pair of clippers is issued to a packer. Thereafter, he obtains clippers from Respondent's office and the cost thereof is deducted from the employee's pay. Shortly before lunch, Vice President Chemali came to Velarde with Aguirre and asked him if he had not been told to get his clippers. Velarde replied that he had forgotten to, and Chemali then told him that they did not need him any more. At one point in his testimony, Velarde testified that Aguirre told him to get the clippers at the lunchbreak on November 6, yet, he also testified that he did not get a pair during the lunch period on the contention that the office is empty at lunchtime as everyone is eating lunch. He also testified that he understood the rule to be that they could not leave their work and go to the office during working time. I think it is quite clear that Aguirre told Velarde to go to the office and purchase clippers on the morning of November 6 and that he had told him to get some on two occasions on the prior day. Velarde had to borrow clippers from a fellow workman during the time he was without his own. He had to have some to perform his work. They are used to clip off threads on pants prior to packing. He was also asked why he did not purchase a pair during the afternoon break on November 5. He testified that "it didn't occur to me because I was using the other clippers." I find that Velarde was discharged for the reason assigned. 2. Manuel Bonilla discharged May 6, 1970 Bonilla was employed by Respondent in April 1967 and worked in the shipping department as an order puller. He received eight wage increases, the last two effective the workweeks ending November 19, 1969, and March 18, 1970 Bonilla signed a union authorization card on September 30, 1969, and his name appears on the Union's first telegram of October 22, 1969. He was active on behalf of the Union and this information was known to Respondent. He was a witness on behalf of the General Counsel in the Adan Gonzales case in January 1970. The reason assigned for his discharge on May 6, 1970, was misconduct that occurred on that day During the noon hour on that day, a large group of employees from the shipping department went over in a group to that part of the cafeteria where employees from the cutting room were seated. They gathered around the cutting room employees and urged them to join the Union and to come to union meetings. Luis Alvarez spoke to the group in a voice loud enough that they all could hear. The people from the cutting room began to clap their hands and to make noises Some of the employees from the shipping room were walking up and down between the tables and shouting "Viva la Union"; "Don't be afraid to sign." Victor Chemali was in the cafeteria and observed this and told the employees not to be hollering, parading, or creating a disturbance and to move over to the side of the room. Victor Chemali called Vice President Joe Chemali. Vice President Chemali told him to bring the employees into the main hallway. Three employees, Luis Alvarez, Felipe Castaneda, and Valentin Lopez were still addressing the employees. Victor Chemah told the group to go to the hallway. Alvarez continued to address the other employees. Victor Chemali asked him if he were refusing to do what he was asked to do, and Alvarez replied that he was not through talking. Alvarez then made a few more remarks and joined the group going to the central hallway. In the central hallway, the employees were lined up against the west wall. Vice President Chemali came and told the supervisors to take the names of the employees. He then gathered the group around him and told them that Respondent was not going to tolerate any parades, loud yelling, or demonstrations; that employees went to the cafeteria to relax, and at times there were buyers or suppliers in there; that as long as they solicited for the Union in an orderly way, they would not be bothered. Chemali then repeating this in Spanish and told them to go back to work. At that moment, Bonilla clapped his hand and shouted "Yeah," as he started back to work. Chemah called to Bonilla to stop, but Bonilla continued walking. Supervisor Soza then called to Bonilla and cut across the area and caught up with Bonilla and put his hand on his shoulder or arm to stop him, whereupon Bonilla whirled around, doubled up his fists, and drew his arm back. Alvarez came over and, shaking his finger at Soza, stated, "If you want him, call him by his name, but don't grab him or touch him." Soza raised his hands up parallel with his face and backed away. Bonilla testified that "Jaime Villenueva got in front of me, so I wouldn't hit Soza because I was angry." The situation was rather tense. The employees returned to work and Vice President Chemali told Bonilla to come to the office. He asked Bonilla if he had any belongings in the shipping room and Bonilla said that he had his glasses. Chemali sent someone to get the glasses. While they were waiting, he asked Bonilla, "Manney, I don't understand why you did this, assaulted one of my supervisors." Bonilla replied, "Assault- ing one of your supervisors, I didn't hit him, he grabbed me, so if anybody grabs you from behind, you are going to turn around to see who it is." Then Chemali stated, "Right after we told you all not to make any more loud noises or disturbances." Bonilla replied, "Well, I was happy, I didn't know why I did it. I was happy, I thought I was going to get fired, so it just came to me. I clapped my hands." Chemali then told him he was discharged. As previously mentioned, the situation was tense; Bonilla ignored both Chemah and Soza when they called to him; when Soza touched him, he turned around ready to fight. If he was indeed in a happy mood when he clapped and yelled, his other actions were certainly not consistent with that mood. I find that Chemali had a reasonable basis for believing that Bonilla was defiant in his conduct and that he was discharged for this reason. I find that Bonilla's discharge was not causally related to union activities or his act of testifying in the Adan Gonzales case. 3. Lorenzo Rivas discharged May 28, 1970 Rivas was employed by Respondent in January 1970; from the latter part of March 1970, until his discharge on May 28, he worked under the supervision of Douglas 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ramey in the cutting room. The reason assigned for his discharge was that he went into other areas not pertaining to his work during working time and in spite of instructions not to do so and he was disrespectful to his supervisor Rivas signed a union card on January 10, 1970, and in the first part of April he started wearing union buttons, wearing six or seven at one time. He distributed about 50 union buttons to other employees and also he distributed about 70 to 100 union authorization cards in the restroom, parking lot, and the main corridor. On April 8, 1970, Rivas received a 10-cent-per-hour wage increase. In the performance of his work, usually once each day, Rivas took a forklift truck and went into another area to get some pants. On May 28, 1970, the day of his discharge, he was directed to do this by Ramey. Because of some construction work that was in progress near the main corridor, Rivas was delayed while another forklift truck moved a heavy beam that was lying in the hallway. He was gone about 45 minutes and on his return Ramey asked him why he had taken so long Rivas replied that he was working, and stated, "You want me to go fast and run over people." Later the same day, Rivas went to another area to get some bundles of pockets. He cut through a working area to reach this place. On this trip he stopped to talk to an employee in the adjacent working area about some boots the employee was wearing. Ramey came up to him and asked what he was talking about. He also asked the other employee what they were talking about. They explained to him that they were talking about the boots. Ramey told Rivas that he was getting tired of telling him not to talk to other employees out of his work area and during work time. Rivas then stated, "If you don't like it, fire me." Ramey then called Supervisor Erich Goeldner and told him about it, Goeldner talked with Rivas. Goeldner told Rivas that he heard that Rivas was giving Ramey some trouble. Rivas replied, "Well, he is always following me, he is always telling me not to talk to people." Goeldner checked with Vice President Chemali about the matter and then told Rivas that he would have to let him go because he had been giving supervisors a hard time Rivas had previously been warned about going into other working areas during worktime and talking with employees. He repeated this conduct on May 28 and when reprimanded about it, he was unnecessarily flippant with his supervisor In fact his remarks to Ramey when reprimanded that morning were in the same vein. I find that Rivas was discharged for the reason assigned and not his union activities. 4. Johnny Rodriquez discharged June 5, 1970 Rodriquez was employed by Respondent on September 5, 1967 He worked in the cutting room in phase III at the Gateway plant The reason assigned for his discharge on June 5, 1970, was throwing a firecracker at two female employees along the driveway between the plant and the parking lot. It is also contended by the General Counsel that Respondent attempted to isolate Rodriquez from other employees and discriminatorily transferred him to a less desirable job before discriminatorily discharging him. Rodriquez was the most active supporter of the Union in the cutting room. He signed an authorization card on January 5, 1970, and started wearing union buttons in March 1970. He increased the number he was wearing until he had 20 to 30 buttons on at a time. He wore these on a vest. Rodriquez's name was on the union telegram on May 7, 1970. On May 12, 1970, Rodriquez, along with employee Felipe Castaneda, addressed the cutting room employees in the cafeteria on behalf of the Union.20 Castaneda was suspended for what occurred on this occasion and Rodriquez was told to go back to his work. No unfair labor practice was found in this regard. (See para. L.) During his period of employment of 2 years and 9 months, Rodriquez received nine wage increases, the last was effective on April 8, 1970. In 1968 and 1969, he received Christmas bonuses of $79 and $157, respectively. Rodriquez's supervisors, Ben Donathan, Bernd Wolfinger, and Erich Goeldner, all testified that Rodriquez was a very good worker. On February or March 1970, Rodriquez was changed from the job of "shading" to "bandwinding." The General Counsel contends that by this action Rodriquez was assigned to less desirable work because of his union activities and that it was a step backwards in job progression. Shading requires more mental ability and skill than bandwinding; bandwinding is more physical and routine. In about July 1968, Rodriquez was transferred from the job of a spreader to that of bandwinding. In August 1969, he was moved to the job of a shader and in February or March 1970, he was moved back to the job of bandwind- ing, where he remained until his discharge. This transfer back to bandwinding was occasioned by the fact that employee Hilario Loya went on sick leave. Rodriquez was transferred to fill this position on the premise that he was an experienced bandwinder. During the period that Loya was out, the work for the bandwinders increased. To meet this problem, new bandwinding machines were ordered and also Supervisor Donathan discontinued the practice of the winders getting their own material and assigned employees to perform this function for them so that bandwinders would not lose time at their machines. There were five bandwinders. Rodriquez remained as a bandwind- er after the return of Loya. There was no change in pay in the two jobs, and, in fact, Rodriquez received a 10-cent- per-hour wage increase in April 1970. Rodriquez was transferred from shading to the job of bandwinder before he started wearing a union button. Although I find therein that Rodriquez was discriminatori- ly discharged and although Respondent could have had ulterior reasons in making the job change as to Rodriquez, yet at this point of time his union activities were not as extensive as later and the actions taken by Respondent had business justifications. I, therefore, find that the evidence is insufficient to find that the transfer of Rodriquez from shading to bandwinding was discriminatonly motivated. 20 Transcript is hereby corrected to show correct spelling of name of Felipe Castaneda to be as appears herein FARAH MANUFACTURING CO. 703 Also, I find that the evidence is insufficient to support the contention that the assignment of another employee to get material for the bandwinders was done in an effort to isolate Rodriquez because of his union activities. On the day of Rodriquez' discharge, June 5, shortly after the noon hour, employee Maria Castaneda came up to Vice President Chemalt in the hallway and told him that as she was on her way to the plant clinic a car passed by her in the driveway and a firecracker was thrown at her and that when the explosion occurred she twisted her neck and was in great pain. Employee Maria Garcia was with her. Chemalt asked if she knew who did it and she said that it was the real big guy that wears a jacket with a lot of union buttons on it. They did not recognize any other occupant of the car Chemalt sent her on to the clinic. At the time, Maria Castaneda was on the way to the clinic to get one of her shots which she gets every 3 days. After she had visited the clinic, Chemalt sent her and Garcia into the cutting room with Supervisor Donathan to see if she could identify the person involved. This was before the end of the lunch period. They returned and said that they did not see him. After the lunch period was over, Chemalt called Rodriquez and asked him if he had thrown a firecracker at some girls during the lunch hour and he replied that he had not. Chemalt told him that two girls said that he had thrown a firecracker at them. Rodriquez then said he knew who it was-that it was the two girls who were in the cutting room at noon with Donathan. Apparently, Rodri- quez had seen them and they had not seen him Chemali asked him again if he had thrown the firecracker and Rodriquez replied that he did not Then Chemalt asked him if he was in a car leaving the plant at noon and he said that he was. While Chemalt was talking with Rodriquez, he called the supervisor in the department where Maria Garcia worked and had him send her over to the main corridor in the Gateway plant. She came into the corridor while Chemali was talking with Rodriquez, and after he sent Rodriquez back to work, he asked her if Rodriquez was the man who threw the firecracker. She replied that he looked like the man, but that without his dark glasses she 'could not be sure Chemali then decided that since Rodriquez fitted the description in that he was a big man with long sideburns and had a jacket with union buttons, he would discharge him for the incident. He then had Rodriquez brought back to the hall and told him that he was going to discharge him for throwing the firecracker. As Rodriquez was leaving the building after being discharged, he put on sunglasses and Chemalt had Maria Garcia come down from her work area and go outside and take another look. This time she reported that Rodriquez was the man in the car at noon. Maria Castaneda was unable to participate in this further conversation or identification as she had become hysterical when she returned to work that afternoon and was taken to the clinic to recuperate. Chemali testified that it was his understanding that Castaneda had been taking some shots of some kind and also was given a pill on her visit to the clinic this day. On June 5, Rodriquez went to lunch in a car driven by Danny Valencia; they had to stop at a crosswalk between the main plant and the parking lot to let employees go by; and then, after they proceeded, he heard a noise like a backfire coming from behind them. When Chemalt was talking to him in the hallway, Rodriquez asked Chemalt to talk to the persons who were with him in the car. The only person that Rodriquez recognized at the crosswalk was Luis Alvarez, who was passing by at the time. He did not see Castaneda or Garcia on this occasion but had had words with Castaneda in the central corridor on prior occasions. Castaneda and Garcia were opposed to the Union and had seen Rodriquez soliciting for the Union on prior trips through the central corridor on their way to the clinic. It seems very unlikely that Rodriquez or anyone in the car would have thrown a firecracker or other explosives out of the car at this time and on this occasion; he could not have known that the two female employees involved would have been at the crosswalk prior to arriving there. To toss a firecracker or other explosives at that point would have taken some preparation and premeditation. From all indications, Maria Castaneda is a very nervous person and was having physical problems of some sort necessitating a shot every third day. It seems more plausible that a backfire of an automobile occurred; yet Chemalt took the word of Castaneda and Garcia that it was a firecracker and did not talk to the other two occupants of the automobile about the incident. To come to a decision regarding the Job future of an employee with Rodriquez' outstanding work record for the reason that he allegedly threw a firecracker, and on such little evidence of the likelihood that a firecracker was in fact thrown, and without investigating it further, and in fact before even a positive identification had been made, indicates the existence of a more underlying motive for his termination. In consideration of this and Rodriquez' extensive union activities and Respon- dent's illegal efforts to thwart union activities in general, I find that Respondent utilized the alleged firecracker incident to terminate Rodriquez for his union activities. Respondent contends that Rodriquez is not eligible for reinstatement because of conduct that occurred after his discharge. He is alleged to have assaulted employee David Espinoza on the evening of June 5. He is alleged to have thrown parts of a dead rabbit at employees Yolando Garcia and at Maria Castaneda on November 4, 1970, and he is alleged to have assaulted a supervisor at one of the other plants on August 14, 1970. He was fined $25 for the assault on Espinoza and a total of $400 on the incidents involving Garcia and Castaneda, although this matter is on appeal. The charge against Rodriquez for the assault against Supervisor James Murphy was dismissed for lack of identification at the scene of the assault in view of evidence presented that Rodriquez was at the union hall that evening. David Espinoza circulated a petition in the central corridor against the Union. Rodriquez was also in the hallway and was aware that Espinosa was doing this. After work on June 5, Espinosa and a friend stopped for a beer at the Tahitian Bar. While they were there, a person came into the bar that Espinosa did not know but had seen before. This person told him that Jesus Martinez was outside having trouble with his car and wanted to know if Espinosa could come out and help him. Espinosa went 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside to see Martinez Rodriquez was outside and came up to Espinosa and started punching him two or three times on the head. Espinosa stumbled and fell and his glasses were broken. James Murphy testified that on August 14, 1970, at about 8.45 p.m. as he was leaving the Third Street plant, a red and white 1955 or 1956 Chevrolet station wagon drove by with several people in it and someone hollered at him. The car stopped and backed up when he answered the call. He walked toward the car. As he approached the car, the driver opened the door and got out and walked toward him. Murphy did not recognize the person and started to leave and the person hit him on the ear and kicked him in the groin. Murphy then tried to get back to the plant office and another person jumped on his back and was hitting him on the top of the head. The men then got in the car and drove off as a guard came out of the plant. Murphy went to a hospital and was checked over and was told that he was not hurt badly enough to be hospitalized. He was under a doctor's care for 3 weeks, however, as his testicles were swollen and discolored and he had a small cut on his ear. Murphy described his assailant as being about 6 feet or more, weighing about 240 pounds, with black hair that was combed back, a beard but not a heavy beard, a round face, and was a heavy type person. He went to the police department and after looking at a set of 14 or 15 pictures he identified one of Johnny Rodriquez as his assailant Prior to this time, Murphy had never seen or knew Johnny Rodriquez. Also, Murphy visited the Gateway plant on August 27 while Johnny Rodriquez was engaged in picketing. He testified that he recognized Rodriquez as his assailant. On November 4, 1970, employees Yolanda Garcia, Manuela Morales, and Maria Castaneda were passing out antiunion leaflets outside Respondent's Gateway plant. Rodriquez was riding in the back of a pickup truck that went by these employees. Pieces of a rabbit were thrown from the truck; one piece struck Garcia and another piece came very near to Castaneda. There were two other persons in the back of the truck with Rodriquez Although there is a conflict in the testimony as to whether or not he threw the pieces of the rabbit, I find for the purposes of this proceedings that he is the one who threw the pieces. The Murphy incident is the most serious of these incidents. Although the court of law could not conclude from the evidence presented to it that Rodriquez had been sufficiently identified as the assailant, yet he was identified by Murphy as his assailant, and his description of the assailant fitted Rodriquez. I find that Respondent had sufficient basis and was warranted in its judgment that Rodriquez had assaulted Murphy. As Respondent con- tends that this incident constitutes just cause for discharge and for refusal to reinstate, it is an issue before me as to whether or not Rodriquez committed the assault on Murphy. Although in another proceeding a court found the evidence of assault to be insufficient, I must make a determination from the evidence before me and cannot adopt or be bound by the findings of fact or conclusions of another tribunal. From the evidence before me and for the purpose of this proceeding, I find that Rodriquez did commit the assault and that it constituted just cause for discharge and for refusal of remstatement.21 The assault on Espinoza on June 5 occurred off the company premises and was a matter between two employees for which the aggrieved employee had redressed before a state tribunal. Had the fight or assault occurred on the company premises, Rodriquez would have been subject to discharge under company rules; but Respondent has no rules governing or policing fights or assaults between employees off its premises and that do not affect the operations of its plant. I find that Rodriquez' assault on Espinoza on June 5 does not justify a refusal of reinstatement for the discriminatory discharge of him on that date. Also, I find that the incident of Rodriquez throwing pieces of rabbit at two employees on November 4, 1970, not to be of such a nature as would relieve Respondent of its obligation to reinstate Rodriquez for its unfair labor practice against him. 5. Luis Alvarez discharged July 10, 1970 Alvarez was employed by Respondent in 1950 and was discharged on July 10, 1970. During this period he spent 2 years in military service. His rate of pay when discharged was $3.40 per hour. He received Christmas gratuities of $442 in 1967, $595 in 1968, and $609.50 in 1969. In view of his high rate of pay, the large gratuities he was receiving at Christmas, his length of service, and the testimony of his work ability, there is no question as to the value of Alvarez to Respondent as an employee. There is no dispute as to Alvarez' s union desires and activities, and as pointed out by Respondents' attorneys in their brief, his activities on behalf of the Union during the 9-month period from October 22, 1969, to July 10, 1970, were exhaustive. Alvarez was an acknowledged leader of the Union's organizing campaign at the Gateway plant. He was also a witness in the Adan Gonzales case and was one of the two employees illegally interrogated by Supervisor Joe Serna in October 1969. The reason assigned for his discharge on July 10 was insubordination-his refusal to lower his voice while making a speech to employees in the central hallway during the noon hour, after being request- ed to do so three times by Vice President Chemah The General Counsel also contends that Alvarez was discrimi- natorily transferred on November 17, 1969, to a more arduous and less agreeable job task. The change that occurred at that time was from the position of a checker and working with pants being closed out or sold as irregulars to the job of handling store returns, that is, merchandise returned by customers. The reason assigned by Respondent for making this job change was that a procedural change in paperwork eliminated most of the time required by Alvarez as a checker to complete this function; there was a need for additional work in the store returns area, and during his years of employment Alvarez had had considerable experience in that position. The 21 Carthage Fabrics Corp, 101 NLRB 541 , Alabaster Lime Co, 194 NLRB No 173 FARAH MANUFACTURING CO General Counsel contends that the latter job is more arduous because it required Alvarez to stand most of the day, whereas as a checker he was allowed to sit about three-fourths of the day; also the work of a checker was not as confining There was no change in rate of pay or employee benefit. Significant or material differences in the two jobs would be difficult to assess. The most significant difference in the two jobs is that in store returns Alvarez was confined to one area of the shipping room and had little contact with other employees. His prior job was to check the packing slips made out by the packers and to check the stenciling on the boxes going out for shipment; once a month he would take inventory of closeouts and irregulars . In store returns, his job was to open returned packages of garments and inspect them and make out claim memos. During the first 5 days that Alvarez was in the new job, there was a stool that he used. Alvarez testified that it started disappearing and he asked Supervi- sor Joe Serna if he was taking it, and Serna replied that whoever needed it in the office was taking it into the office. The procedural change that eliminated many of the hours that Alvarez was spending in the checkingjob was as follows- Prior to the change in November 1969, about 75 percent of Respondent's customers were being furnished packing slips which broke down the order as to quantity by style, color, and size. The preparation of these slips and the checking of them for accuracy was taking considerable time. The new procedure was that packing slips were furnished only to about 25 percent of the customers and then only if they needed them. Also, the new slips did not specify each item ordered, that is, by color and different sizes Under all the circumstances, I cannot find that the transfer of Alvarez from the checking job to the store returns Job was discriminatory. As previously mentioned in this decision, much solicita- tion for and against the Union occurred in the central hallway during the lunch periods and the break periods. During the period of about 6 weeks prior to his discharge, Alvarez made a number of speeches to employees gathered in the hallway. On June 10, the day of his discharge he was so engaged along with Felipe Castaneda. There was also a female proponent for the "happies" making a speech about 60 feet down the hallway. Apparently, in an effort to be more convincing and to be heard by more employees in the hallway the speakers were addressing the employees in loud tones. Vice President Chemalf and other supervisors were walking down the hallway telling employees to move to the sides of the hall to keep the passageway open. He told the speakers to lower their voices. There were many employees in the hallway this particular day. Alvarez arrived in the hallway at about the time that Chemalf was telling Castaneda and the female proponent for the "happies" to lower their voices. Alvarez testified that Castaneda lowered his voice and said that he could not hear him. Then Alvarez started speaking. Chemalf came down the hallway to where Alvarez was speaking and told the employees not to block the passageway. Alvarez told the employees.that the reason Chemalf was standing there 22 Alvarez testified that he did lower his voice after each of the orders to do so, but if he did so, it was not to a perceptible degree, and I find that he 705 talking was because he was trying to drown Alvarez out so that he could not be heard, that Chemali did not want the people to hear what he was saying. Chemalf told Alvarez to lower his voice, but Alvarez continued to talk in a loud voice ignoring Chemali. A little later, Chemali told Alvarez again to lower his voice. Alvarez stated to his audience that Chemali was trying to shut him up and that there was such a thing as freedom of speech and that he had that right and as long as he had that right he was going to keep on talking; that if he ever was fired for that, he was pretty sure that the United States Government would protect him and that the union lawyers would back him up. Three times Chemali told Alvarez to lower his voice, that he was too loud, but Alvarez ignored these instructions or orders.22 The bell ending the lunch period sounded shortly thereaf- ter and the employees returned to work. Chemali told Supervisor Norman Ekery to bring Alvarez to the main hallway. Chemali told Alvarez that he had been speaking too loudly. Alvarez replied that he had to talk loud to be heard. There were about 100 employees in his audience. Chemalf told Alvarez that he was making him look bad by not obeying his orders and that since he had ordered Alvarez to lower his voice and Alvarez had not done so, he was being discharged. Under all the circumstances in this case, I find that Alvarez was not discharged for his union activities but for his failure to comply with the order to lower his voice. It is true that he was engaged in union activity at the time Speechmaking was in fact freely engaged in by prounion and proemployer employees. It is reasonable to expect that where two employees are speaking to the same general group and endeavoring to present opposite points of view that each would desire to be heard above the other. Although I am inclined to the view that the disciplinary action taken in this case is extreme in view of the tenure of employment of Alvarez with Respondent, nevertheless I believe Chemali was motivated by a need to maintain order in the hallway and to prevent the disruptive effect of extremely loud speechmaking and that the discharge action was taken for this cause and not the union activities of Alvarez. 6. Gilbert Minjarez discharged July 17, 1970 Minjarez was employed by Respondent on March 18, 1969. He worked as a pants separator under the supervi- sion of Salvador Ybarra and Ernest Goeldner. He received three wage increases, the last being effective the week ending March 11, 1970. The reason assigned for his discharge is that he initiated a fight with another employee. Mmlarez signed a union card on February 6, 1970, and his name appears on the union telegram of May 14. Following the receipt of the telegram, he began wearing four to five union buttons at one time and from time to time he wore a union T-shirt. He attended union meetings, engaged in solicitation in the central hallway, had union stickers on his automobile, and participated in the demonstration in downtown El Paso in May 1970. He continued to speak in a very loud tone Minjarez also testified that Alvarez lowered his voice 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD passed out union buttons, authorization cards, and T- shirts Other separators of pants that worked along with Minjarez were Ladislado Sifuentes and Helidoro Hmojoso. They worked on several tables and would carry pants from one table to another . The tables were fairly close together. Starting in January 1970, MmJarez began having difficulty with Sifuentes . Minjarez could not account for this except from a remark made by Sifuentes inquiring if Minjarez was a hippie and from the fact that at the Christmas party Minjarez wore a headband. Sifuentes started calling Minjarez bad names , making movements toward him as though he were going to hit him, and attempting to trip him. On about three occasions, Sifuentes asked Minjarez to come to the bathroom to fight Also he told Minjarez that he would get him after work. In March, Minjarez went to Supervisor Ybarra and told him that Sifuentes was calling him bad names , trying to hit him, and hindering him in his work , and he asked Ybarra if it were possible for him to separate them Ybarra said that he would talk to Sifuentes. Minjarez saw Ybarra talk to Sifuentes, but he did not hear what was said . Sifuentes, nevertheless, continued to bother and annoy Minjarez. Minjarez told his leadman of the situation and asked him to inform Ybarra. On another occasion, after an exchange between Minjarez and Sifuentes, Minjarez observed Ybarra talking to Sifuentes and then Ybarra came to Minjarez and told him that , if Sifuentes picked on him any more, to be sure and let him know. In May 1970, Minjarez again brought the matter to the attention of Ybarra and asked him if he could please separate them. Ybarra said that he would talk to Sifuentes. On July 17, 1970, Minjarez had about 20 pairs of pants in his arms that he was carrying to place on a table to separate . Just as he was putting them down , Sifuentes came by with a load of pants in his arms and as he passed Minjarez he hit him on his side with his elbow causing Minjarez to drop the pants on the table and crouch to one side. Minjarez then pushed Sifuentes . Sifuentes told Minjarez, " 'I'm going to knock the s- - - out of you,' " and he struck at Minjarez but did not hit him . Minjarez rushed him and tried to pin his arms down and pushed Sifuentes backward . Other employees including Hinojoso separated them . This occurred at about 9 a.m., shortly before the morning break. A short time later that morning, one of the girl employees in the area called Supervisor Ybarra and told him that there had been a fight between two of the boys and she pointed to Minjarez and Hinojoso . Ybarra called Ernest Goeldner and told him of this and he told Ybarra to bring Hinojoso to the clinic . Hinojoso told them that the fight was between Minjarez and Sifuentes ; that Sifuentes was carrying a bundle of pants from the first separating table to the second separating table ; that he bumped into Minjarez ; that Minjarez pushed him; that Sifuentes lost his balance but got up and pushed Minjarez; that they started wrestling. Goeldner then told Ybarra to take Hinojoso back 1o work and to bring Sifuentes . Sifuentes told them that as he was carrying one bundle of pants from one table to another he accidently brushed into Minjarez , that Minjarez shoved him and he shoved Minjarez back; that Minjarez hit him and they started fighting. Sifuentes then returned to work and MinJarez was called. Goeldner asked Minjarez what happened and Minjarez said they had a fight . Goeldner then said, "You know what happens when you fight on company property?" Minjarez stated that Sifuentes has had it in for him for sometime and that he has told Ybarra about it. Goeldner asked Ybarra if this is true and Ybarra stated that it was and that he had talked to both of them in May and that he has heard nothing about it since that time and thought the matter was settled . Goeldner then stated , "You know, Sifuentes said that he brushed you accidentally with a bundle of pants that he was carrying, or brushed by you accidentally when he was carrying a bundle of pants, and you shoved him, and that you both got into a fight, is this more or less what happened?" Minjarez replied, "Yes sir, more or less." Goeldner then stated, "You more or less shoved Sifuentes, then he started the fight?" Minjarez replied, "Yes, sir." Goeldner then stated, "Ybarra, did you hear that he shoved Sifuentes and started fighting, is that nght?" Goeldner then called Joe Chemali and told him of the circumstances of the case and he agreed that they should discharge Minjarez. Then Goeldner told MmJarez he was discharged. Sifuentes testified that he and Minjarez would kid around and call each other bad names and that Minjarez could not take it. Sifuentes testified that he did not discontinue this practice after he saw that Minjarez could not take it . Sifuente did not wear a union button nor did he wear a happy button In view of the relationship and conduct of the two employees, I do not credit the testimony of Sifuentes that it was accidental that he hit Minjarez with his elbow on July 17. Respondent has a rule or policy that if it can be determined which employee has started a fight, that employee is to be discharged for fighting on company property . If it cannot be determined which of the two employees started the fight , then both employees are to be discharged. It is noted that Goeldner did not ask Minjarez for his version of the fight but told him what he had been told and asked Minjarez if this was more or less correct. Apparently, Goeldner considered Minjarez's shove of Sifuentes as the start of the fight or at least the first aggressive contact that started the fight. It appears that because of the prior reports of the difficulty between these two employees and the prior reports by Minjarez of the conduct of Sifuentes, that Respondent was too quick to accept Sifuentes' statement that his contact with Minjarez was "accidental" or "an accident." This, being the first bodily contact, was passed off too quickly as accidental, in view the prior relationships of these two employees. In view of this and the nature of the interrogation of Minjarez by Goeldner, I find that the decision to terminate Minjarez was a pretext. Following the discharge of Minjarez and at a hearing before the Texas Employment Commission, Respondent learned for the first time that during the break on the morning of July 17, Minjarez and Sifuentes had a fight in the restroom . There was no further investigation after that time of this incident to determine if one or both parties FARAH MANUFACTURING CO. were responsible. Sifuentes is still employed by Respon- dent. I find that this incident does not constitute a basis for denial of reinstatement to Minjarez. L. Felipe Castaneda Suspended May 12, 1970 Castaneda started working for Respondent in May 1960. He was a marker in the marking room of the cutting department. He joined the Union on April 1, 1970, and became very active on behalf of the Union. His name was on the Union's telegram of May 7, 1970, and he wore a vest with 25 to 30 union buttons in it. On May 12, 1970, Castaneda was suspended for the remainder of that day following the morning break at about 9:30 a.m. The reason given for the suspension was the fact that he made a speech to the persons who were assembled in the plant cafeteria. The General Counsel contends that this was a discrimination against him because of his union activities. The essential facts are not in dispute., Castaneda had obtained a copy of the Trial Examiner's Decision in the Adan Gonzales case, which issued in May 1970. On May 12, he took it with him into the cafeteria at the morning break, he called for the attention of those in the cafeteria and started reading the document, or parts of it, to them and talking to them about unionizing the plant. Supervisor Victor Chemali approached Castaneda and told him that he could talk to employees at a table but that he could not address the entire group Castaneda continued to address the group for a few moments and then went with Chemah to the main hallway where they were met by Vice President Chemali. Johnny Rodriquez, who had been talking to employees in another part of the cafeteria, came along with them into the hallway. I find that Victor Chemali had not directed him to go along but that he came along to see what was going to happen to Castaneda. Vice President Chemali told Castaneda that just the week before he had told employees that Respondent would not tolerate any shouting or disturbance in the cafeteria and that for having done this, he would be suspended for the remainder of the day. Chemali told Rodriquez to go back to work. There is no question but that Castaneda was engaging in union activities in the cafeteria and he was suspended for these activities. But, on the prior week, employees had engaged in speechmaking in the cafeteria and Respondent had reprimanded them for this and told them that it would not be tolerated. The central issue here is whether or not Respondent can limit union activities in this way-that is, preclude speechmaking in the plant cafeteria during break periods. I find that Respondent can place reasonable limitations on union activities of employees in the plant. Since not only employees use the cafeteria but also visitors and customers, and since those in the cafeteria are engaged in eating or drinking, Respondent's rule precluding speech- making or demonstrating in the cafeteria is a reasonable one. Soliciting on behalf of the Union in the cafeteria is not precluded and speechmaking in the central hallway is permitted. Thus, I find that Castaneda's suspension of part of 1 day for violating this rule was not discriminatory I 707 find that no discriminatory action was taken against Rodriquez. M. Alleged Misconduct Subsequent to Discharge Respondent contends that as to some of the employees involved herein, a denial of reinstatement would be warranted because of misconduct, in the event their discharges are found to be discriminatory. The conduct of Johnny Rodriquez subsequent to his discharge has been discussed in paragraph K, 4, and it has been found that for conduct occurring on August 14, 1970, a denial of reinstatement after that date would be warranted. Respondent also contends that Clemente Escalante and Ernie Marrufo should be denied reinstatement for conduct discovered after discharge or for postdischarge conduct. At some time prior to his discharge in February 1970, Escalante solicited employee Rosa Perez Chavira to join the Union. She resisted and he insisted. Finally he told her, "How would you like to wake up in the morning and have your car all flat or all of your windshield broken?" She said she would not like that. He told her, "Well, come on and sign," and she said she would not. He then said, "We're going to stop talking, our friendship is going to stop here." She said, "Fine," and walked away. She testified that she did not own an automobile, and that Escalante started speaking to her again at a later unspecified time. Respondent learned of this incident after the discharge of Escalante. I find that it would not warrant a denial of reinstatement. In October 1970, Ernie Marrufo, Johnny Rodriquez, Felipe Castaneda, and Luis Alvarez were engaged in passing out union literature at one of Respondent's gates. Employee Angelina Bonilla was passing out literature in opposition to the Union Marrufo told her that the Union was going to win and that if it did not he was going to throw rocks at the buses carrying employees to work. Rodriquez told her that she was a bastard, an ass kisser, and a whore, and that if she would bend over he would assault her from behind. Rodriquez, Marrufo, and Cas- taneda were on her side of the street. As cars came by, one of them would shout, "Look at the prostitute giving out papers. Don't get any papers from her. She is against the Union " She then told them that they were not men, that if all of the men in the Union were like them they were nothing but queers. Some days later, Bonilla was again passing out antiunion literature at one of the Farah gates when a green pickup truck drove by. Marrufo was standing in the back of the pickup and threw a piece of a rabbit in her direction. It hit the fence near her and she believes it would have hit her had she not ducked on warning to do so by a fellow employee. Marrufo then made an obscene gesture. Charges were brought against Marrufo for the incident and he was fined $100. Also, on October 15, 1970, the day after a representation election at Respondent's Gateway plant, Marrufo was solicited on behalf of the Union at one of Respondent's gates when employee Joseph Avila came through. Marrufo asked him if he had joined the Union and Avila replied that he had not. Marrufo then said, "Don't worry about it because I know where you live " 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the conduct and statements of Marrufo and Rodriquez are not of such a nature as would warrant a denial of reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, occurring in connection with the operations of Respondent described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following- CONCLUSIONS OF LAW 1. Farah Manufacturing Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Clothing Workers of America, El Paso District Joint Board, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has (a) by the continued existence and enforcement of a broad no-solicitation rule precluding union solicitation in work areas or in other departments during nonwork time, and by changing colors of name tags as a means of identifying and interfering with employees soliciting for the Union in other departments during nonwork time; (b) by instituting and maintaining a practice of close surveillance of employees while at work and during nonwork time as to their conduct, their work errors and their violation of company rules and proce- dures, and augmenting such close surveillance by assign- ment of additional supervisors to engage in it, by confronting employees with Vice President Chemah as to each transgression, and by utilizing a recording of such transgressions as a pretext for discharge or other discipli- nary action because of union activities in Respondent's plants; (c) by the instituting of a rule restricting all personal conversations during worktime because of union activities; (d) by the instituting of a rule that a packer is to be discharged for a single error of packing an order without it being checked because of union activities in the plant; and (e) by the interrogation of an employee as to whether or not he had signed an authorization card, engaged in interference, restraint, and coercion violative of Section 8(a)(I) of the Act. 4. By the discharge of the following named employees because of union activities by employees in its El Paso plants, Respondent has discriminated against them to discourage membership in the Union and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act: Ernesto Alfaro Manuel Montoya Hector Caballero Manuel Pedroza Guillermo Chavez Guadalupe Pineda Clemente Escalante Mario Porras Jesus Espinoza Ramon Rios Gregorio Gutierrez Johnny Rodriquez Ernie Marrufo Roberto Rodriquez Gilbert Minjarez Isaac Soto Juventino Morales Carlos Vera 5. By the discharge of the following named employees because of the union activities by employees in its El Paso plants and because they gave testimony under the Act, Respondent has discriminated against them to discourage membership in the Union, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3), (4), and (1) of the Act. Ruben Lucero Jose Villagran 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has engaged in no unfair labor practice by the discharges of the following named employees: Luis Alvarez Gerardo Cinza Oscar Arellano Daniel Olivas Manuel Bonilla Manuel Porras Emilio Casillas Lorenzo Rivas Ricardo Carmona Richard Valenzuela Rosa Marie Castro Jose Velarde 8. Respondent has engaged in no unfair labor practices by the alleged reassignments of Luis Alvarez and Johnny Rodriquez, nor by the alleged suspension of Felipe Castaneda and the alleged reprimand of Johnny Rodnquez for conduct on May 12, 1970, as alleged in paragraph 10 of the complaint. 9. Respondent has engaged in no unfair labor practices as alleged in paragraphs 8(b), (h), (i), (1), (m), (q), and 9(a) of the complaint nor as to other alleged unfair labor practices not found herein. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the purposes of the Act. I shall recommend that Respondent offer to the employees discriminatorily discharged, except Johnny Rodriquez, immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay that they may have suffered by reason of the discrimination against them, by paying each a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of reinstatement, less net earnings during such period in accordance with the Board's formula set forth in F.W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as prescribed in Isis Plumbing and Heating Co, 138 NLRB 716. Due to the finding of misconduct by Johnny Rodriquez, I shall recommend that Respondent make him whole for any loss of pay that he may have suffered by reason of the discrimination against him from the date of his discharge FARAH MANUFACTURING CO. until August 15, 1970. As the act of misconduct occurred in the evening of August 14, 1970, I shall recommend that he be reimbursed for loss of wages through that date, less net earnings during such period, in accordance with the Board's formula set forth in F.W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as prescribed in Isis Plumbing and Heating Co., 138 NLRB 716. Since Spanish is the primary language of many of Respondent's employees, I shall recommend that the notice to employees attached hereto be posted in both English and Spanish. 709 I have found that Respondent instituted a change in color of name tags as a means of identifying and interfering with employees soliciting for the Union in other departments during nonwork time; however, as I am recommending in the Order that Respondent cease and desist from maintaining and enforcing a broad no-solicita- tion rule, I shall recommend only that it not utilize the colored name tags as a means of enforcement of this rule, which if the Order is complied with, will no longer exist. I shall not recommend that the use of colored name tags be discontinued. [Recommended Order omitted from publication.]