Carrizo Manufacturing Co., Inc.

CARRIZO MANUFACTURING CO. Salant Corporation, d/b/a Carrizo Manufacturing Co., Inc. and Obreros Unidos Independientes. Cases 23-CA-4938-1 and 23-CA-4938-2 October 22, 1974 DECISION. AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 31, 1974, Administrative Law Judge Lo- well Goerlich issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief,, and the General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith z and to adopt his recom- mended Order, as modified herein. 1. The Administrative Law Judge found, and we agree, that the' Respondent violated Section 8(a)(1) and (3) of the Act by discharging Carlos D. Juarez, Jr., Pedro Patlan, and Rebecca Patlan. We also adopt his finding that Respondent violated Section 8(a)(1) when its supervisor, Bill L. McClain, interro- gated Juarez on December 8, 1973,3 asking him if he knew anything about meetings held by dissatisfied employees on the 2 preceding days. In addition, we agree with the Administrative Law Judge that Respondent's grant of benefits announced December 12, 1973, violated Section 8(a)(1). 2. The Administrative Law Judge also found that Respondent discharged employees Alberto Esquivel and Jose Sosa in violation of Section 8(a)(1) and (3) of the Act. Respondent contends that Esquivel, the assistant mechanic at Respondent's plant, was dis- charged for poor work performance and because he had not purchased tools necessary for the proper per- formance of his work. It asserts that Sosa, a clothing press operator, was discharged for refusing to follow The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent's request for oral argument is hereby denied as, in our opin- ion, the record in this case , including the exceptions and briefs, adequately presents the issues and positions of the parties. I Unless otherwise specified , all dates referred to herein are in 1973. 171 Respondent's incentive or piece-rate production sys- tem, for tampering with his press machine, and for producing an inferior product. Respondent further contends that it had no knowledge of the concerted activities in which Esquivel and Sosa participated. For the reasons given below, we are not persuaded that Esquivel and Sosa were unlawfully discharged. The record contains testimony which supports Respondent's contention that Esquivel and Sosa were discharged for work-related reasons, but the Administrative Law Judge concluded that these as- serted reasons were pretextual. However, a finding that the discharges were motivated by the employees' concerted activity would not be warranted unless there is evidence that Respondent was aware of such activity.4 And this the record does not support. . The Administrative. Law Judge made such an in- ference because a nonemployee, Joaquin Salgado, passed the Texas Migrant Council building at the time of the employees' December 7 meeting, while Sosa's automobile was parked in front of the building and Esquivel was standing in front of a window, whose curtains were drawn 10 inches.' According to the Administrative Law Judge, "it may reasonably be inferred that Salgado reported these facts to the Re- spondent." However, the Texas Migrant Council building is used by the community for birthday par- ties, showers, bingo, and meetings in general, and it does not appear that Salgado knew of the employees' meeting therein at the time he drove by; according to Salgado, he was on his way to his cousin's house a quarter of a block away. The General Counsel does not allege unlawful surveillance. Finally, Salgado was a local city councilman who had a contract with Respondent to truck goods, and the evidence does not show that he was acting as agent for Respondent for any purpose. In these circumstances, we are not satisfied that Salgado was actually aware of the presence of Sosa and Esquivel in the Texas Migrant Council building on the night of December 7. But even if he were, there is insufficient basis for attributing that knowl- edge to Respondent on agency principles set forth by the Administrative Law Judge. We therefore con- clude that the General Counsel has not met his bur- den of establishing an unlawful motivation for the discharges of Sosa and Esquivel. Accordingly, we shall dismiss the 8(a)(1) and (3) allegations with re- spect to the discharges of Sosa and Esquivel. 3. Salgado learned of the aforementioned employ- 4 The Administrative Law Judge's finding that the matter of Respondent's knowledge of Sosa's organizational activity was an immaterial factor in fixing Respondent's guilt is without merit in the circumstances of this case. 5 The testimony as to these .facts was given by Sosa and Esquivel, not Salgado. 214 NLRB No. 21 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees' meeting on December 8. He questioned Pedro Patlan about it, telling him, "If there is any way I can help you, that's how come you've got me here as a city councilman to help you out." In the circum- stances described in his Decision, the Administrative Law Judge concluded that Salgado interrogated Pat- Ian at the direction of Respondent and that Salgado was therefore acting as agent of Respondent, which was responsible for his conduct. But the circum- stances upon which he relied do not necessarily es- tablish that as a fact . Salgado's visit to Grave's office is consistent with his role as an independent trucking contractor doing business with Respondent , and his approach to Patlan, as he indicated, was in the role of a city councilman concerned about potential labor problems at the plant; moreover, Patlan had no rea- son to believe otherwise. We are therefore unable to conclude that the General Counsel has demonstrated by a preponderance of the evidence that Salgado's interrogation of Patlan restrained and coerced him, in violation of Section 8(a)(1) of the Act. According- ly, we shall dismiss the 8(a)( l) allegation regarding the conversation between Salgado and Pedro Patlan. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Sa- lant Corporation, d/b/a Carrizo Manufacturing Co., Inc., Carrizo Springs, Texas, its officers , agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete the names of Jose Sosa and Alberto Es- quivel from paragraph 2(a). 2. Substitute the attached notice for that of the Administrative Law Judge. WE WILL offer the above-named employees their former jobs or , if their jobs no longer exist, substantially equivalent positions and will re- store their seniority. WE WILL pay them any backpay they have lost because we discharged them. WE WILL NOT discharge any employee for the same reasons for which the Board found that we discharged the above-named employees. WE WILL NOT unlawfully discharge employees for lawfully engaging in union activities or pro- tected concerted activities. WE WILL NOT unlawfully interrogate any em- ployees with respect to their union or concerted activities. WE WILL NOT unlawfully grant wage and other employee benefits for the purpose of dissuading our employees from organizing or supporting a union or engaging in concerted activities. The laws of the United States give all employees these rights: To organize themselves To form, join, or help unions To bargain as a group'through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things, sub- ject to the union-security requirements of Sec- tion 8(a)(3) of the National Labor Relations Act, as amended. All of our employees are free to remain, or refrain from becoming or remaining, members of a labor or- ganization. SALANT CORPORATION, d/b/a CARRIZO MANU- FACTURING., INC. 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 , after a trial in which all parties were permitted to introduce evi- dence, found that we discharged Pedro Patlan, Re- becca Patlan, and Carlos D. Juarez, Jr., unlawfully and that by their discharges we discouraged our em- ployees from engaging in concerted activities and from becoming members of Obreros Unidos Inde- pendientes or any other labor organization. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge in Case 23-CA-4938-1 filed by Obreros Unidos In- dependientes on December 17, 1973 , against the Respon- dent, Salant Corporation , d/b/a Carrizo Manufacturing Co., Inc., was served on the Respondent on the same date by registered mail. The charge in Case 23-CA-4938-2 filed by Obreros Unidos Independientes on December 17, 1973, was served on the Respondent on the same date by regis- tered mail. An Order Consolidating Cases and Consolidat- ed Complaint and Notice of Hearing was issued on Janu- ary 30, 1974. The consolidated complaint charged that the Respondent had unlawfully interrogated employees and CARRIZO MANUFACTURING CO. 173 had granted them benefits for the purpose of dissuading them from organizing and supporting the Union in viola- tion of Section 8(a)(1) of the National Labor Relations Act, as amended, herein referred to as the Act. The consol- idated complaint also charged that the Respondent had violated Section 8(a)(3) of the Act by unlawfully discharg- ing five employees, Pedro Patlan, Rebecca Patlan, Jose' Sosa, Alberto Esquivel, and Carlos D. Juarez, Jr. The Respondent filed a timely answer denying that it had engaged in any of the unfair labor practices alleged. The cases came on for trial at Eagle Pass, Texas, on March 12, 13, 14, and 15, 1974. Each party was afforded full opportunity to be heard, to call, examine and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. and secretary. Antonio Rios, Jr., is the incumbent presi- dent. The Union has executed a labor agreement with Del Monte Foods, Inc., Crystal City, Texas, which expires in accordance with its terms on January 14, 1977. The unit covered by the agreement was certified by the Acting Re- gional Director of Region 23 on November 6, 1973. The labor agreement covers employees' conditions of employ- ment and among other things provides for a grievance pro- cedure and arbitration. Since the Union is an organization in which employees participate and exists for the purpose "of dealing with employees concerning grievances, labor disputes, wages, rates of pay, hours of employment" and "conditions of work," it is a labor organization within the meaning of Section 2(5) of the Act. - III. THE UNFAIR LABOR PRACTICES FINDINGS OF FACT,I CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under the laws of the State of New York, where it maintains its principal office. At all times material herein Respondent, a manufacturer of men's, boys', and children's apparel, with plants in several states and Mexico, has operated a plant in Carrizo Springs, Texas. . Within the past 12 months, a representative period, Re- spondent, in the course of its business, sold and shipped apparel products valued in excess of $50,000 directly from its Carrizo Springs, Texas, plant to its customers located outside the State of Texas. Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED In its answer the Respondent denied that Obreros Uni- dos Independientes, hereinafter called the Union, was a labor organization within the meaning of the Act. The constitution of the Union states that its purpose is "to, organize and represent workers, except management and supervisory personnel in connection with their em- ployment." Membership encompasses "Any person who works in any industry, except management and supervisory personnel in the State of Texas." Annual elections provide for the election of a president, vice president, treasurer, The facts found herein are based on the record as a whole and the observation of the witnesses . The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits , with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic- tion to the findings herein , their testimony has been discredited , either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredulous and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record . No testimony has been pretermitted. A. The Setting Salant Corporation is the parent company of wholly owned subsidiaries Thompson Company, Chester Manu- facturing Company, Summerville Manufacturing Compa- ny, Salant & Salant, and Peerless Buckeye Company. Car- rizo Manufacturing Company, Inc., Carrizo Springs, Tex- as, is a division of Chester Manufacturing Company. At the time the events herein detailed occurred, Joseph Lip- shie was' the president of the Salant Corporation and Perry Stubblefield was the 'general manager of the Carrizo Springs plant as well as three of the Respondent's plants located in Piedras Negras, Mexico.. Stubblefield expressed the labor policy of the Respondent in These terms: "the company. policy is that we negotiate in good faith with organized' labor in the locations where they represent the people. And, of course, also our policy is that where they do not represent the people that we use legal means to combat them in those plants that are not organized." 2 Stubblefield also stated that the "Company policy through- out is to have more or less an open door attitude. to the employees that work for us, that we will discuss their prob- lems with them regardless of what they might be. The Respondent commenced its cutting operation in an old armory building located in Carrizo Springs, Texas.' In July 1973, the cutting operation was moved to a new build- ing in Carrizo Springs' which the Company now occupies. Thereafter finishing was commenced in October 1973 and shipping in November 1973. The Company's products are men's work pants and boys' and girls' jeans. Of the new building the finishing department occupies 20,000 square feet and the warehouse 70,000 square feet. Employees in the cutting department "cut the parts and package them up or case them up to ship to [Piedras Neg- ras] Mexico by truck for the sewing operation.," After the garment has been stitched in the Respondent's Mexican plants it is returned by truck to the Carrizo Springs plant. "All it needs is two buttonholes and to be top pressed, leg pressed, and inspected and put through the oven on a con- veyer chain to cure the permanent press resin in the fab- 2 The Respondent has not always confined itself to the use of legal means to "combat" organized labor. See 164 NLRB 1013 (1967); 162 NLRB 264, 267 (1966); 92 NLRB 417 (1950); and 66 NLRB 24. 3 Carrizo Springs has a population of slightly over 5.000 persons. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ric." These operations are performed by employees in the finishing department. After the garment is finished it is stored in the warehouse until shipped to the customer. These functions are performed by the employees in the warehouse department. Bill L. McClain, a salaried employ- ee, is foreman of the finishing and the warehouse depart- ments. Stubblefield spends about one-fourth of his time at the Carrizo Springs plant. Assigned to the plant are also Hobart Graves, office manager, Harpo Garcia, personnel manager, Richard Ray, engineer for the Carrizo Springs and the Piedras Negras plants, and Fred Rios, chief me- chanic for the Carrizo Springs and the Piedras Negras plants. Rios supervised the mechanics and janitors at the Carrizo Springs plant where he spent little time. Harold Kane is the head mechanic at the Carrizo Springs plant. According to Stubblefield the "people he [Kane] supervises are his helper and the janitors or watchmen in the plant." Employees in the finishing department had been paid the Federal minimum of $1.60 an hour. On November 30, 1973, Stubblefield "held meetings with the personnel from each operation in the -finishing department explaining to them the wage structure of a piece rate system. ... " The Respondent had been operating under "start up condi- tions" and it was believed that by the end of, November "the people were sufficiently trained to be sufficiently im- pressed. . by the incentive pay plan" The base rate un- der such plan was established at $2.05 per hour.' This piece rate system was implemented on December 3, 1973. The employees' workweek ended on Friday at which time they received 2 weeks' pay. This represented wages earned during a 2-week period ending on the prior Friday. On December 3, 4, and 5, 1973, the Respondent held an "opening celebration or dedication for the building of the manufacturing plant in Carrizo Springs, Texas." President Lipshie and Vice President Walter Bullwinkel attended. According to Stubblefield, during Lipshie's visit Lipshie in- formed him that it was time that the Carriso Springs plant "moved ahead with [its] program of wage rates, benefits, and this sort of thing." Lipshie advised Stubblefield that he would discuss this matter with other officials of the Re- spondent and that he would be back in touch with him the following week to let him know what the changes should be. As explained by employee Pedro Patlan, during the peri- od of the Respondents' operation "a lot of the employees in the plant had complaints and they wanted ... to find a way to do something about them and they were talking about getting together somewhere and discussing some of these things." Patlan agreed to find a place. He contacted Cruz Sanchez and Armando Criel who worked for the Tex- as Migrant Council which provided social services for the community and Patlan arranged for an employees' meeting at its building located at 912 Adams Street, Carrizo Springs, on December 6, 1973. Twenty to thirty employees were present at the meeting. Sanchez and Criel attended. At the meeting those present realized that they knew little about organizing. Thus it was decided to muster more em- ployees and contact someone who could give the employ- ees advice on how to start organizing. After the meeting Patlan, his wife, Rebecca Patlan, Sanchez, and Criel jour- neyed to Crystal City, Texas, where they contacted repre- sentatives of the Union. On the next night, December 7, 1973, about 20 employ- ees met again in the Texas Migrant Council building. An- tonio Rios, Jr., president of the Union, and Hector Rodri- guez, a union organizer, attended. The employees dis- cussed conditions of employment noting that there were no fringe benefits. Rios and Rodriguez spoke to the employ- ees, described the Union's experiences at Del Monte, dis- cussed the problems of organization, and offered the Union's help. The employees decided that they would, wait before taking any action until the following Friday when their checks would come out since these checks would re- flect the new incentive pay system. No action was taken toward joining the Union since, as explained by Patlan, all the employees wanted was information. Nevertheless, a committee of four individuals was elected, a spokesman for each of the departments. The committee members were to inform the employees in the_departments "exactly what was trying to be accomplish and to try to get the majority from each department to come to the meetings." A meeting was set for Friday; December 17, 1973. While the meeting of December 7, 1973, was in progress employee Alberto Esquivel, who was attending the meet- ing, saw Joaquin Salgado, a Carrizo Springs city council- man with whom the Respondent has contracted to truck cut work from Carrizo Springs, Texas, to its plants in Pie- dras Negras, Mexico, drive past the Texas Migrant Council building three times during a period of 4 or' 5 minutes. Salgado admitted that he saw his friend Juan Lopez, an employee of the Company, going into the building, which he could not identify by name although other witnesses had no difficulty identifying it by name. On the next 'morning, Saturday, December 8, 1973, be- tween 7 and 7:30 a.m., Salgado was observed by Rebecca Patlan in Graves' office together with Stubblefield, Ray, and Graves. Salgado left the group and walked into the plant. He returned "a while later." Ray then left and re- turned "a little while later" with McClain and the meeting continued until around 9 a.m. According to Salgado he had contacted Lopez who told him to "ask Patlan. Salgado asked Patlan "what went on last night." Patlan answered that the employees were trying to find out the benefits for the employees. Among other things Salgado said "If there is any way I can help you, that's how come you've got me here as a city councilman to help you out." 5 Ray listened briefly to the conversation.6 According to Salgado he "went back to Mr. Stubblefield" and told Stubblefield "There is some people here that want to find out what benefits they've got and all that." After some prompting Salgado agreed that he had mentioned 5 Patlan's testimony as to this conversation was more extensive . Accord- ing to Patlan the employees' grievances were discussed and he told Salgado that the "reason" for the employee meetings was to organize "some kind of committee" to present grievances . Salgado responded , "We don't want a union in here" Apparently Salgado took the word "committee" to mean "union ." Where there is a conflict between the testimony of Salgado and Patlan, Patlan is credited. Such amount was paid to the employee who attained "100 percent of 6 The conversation was in Spanish. Ray said he could not understand production or the quota that was established for the particular operation." Spanish. CARRIZO MANUFACTURING CO. 175 Patlan's name to Stubblefield. Stubblefield testified that Salgado, at about 8 a.m., en- tered Graves' office. Salgado informed him of the employ- ees' meeting and that the employees were concerned about their benefits and wages. Salgado said he thought the bene- fits related to insurance, vacations, and holidays.7 Upon Stubblefield's inquiring as to where he obtained the infor- mation Salgado answered that he had talked to Patlan who had attended a meeting. On Monday morning, December 10, 1973, Stubblefield, Ray and McClain were in the plant observing the employ- ees for "mostly all day." This was an unusual procedure for Stubblefield. Stubblefield said that he was in the plant on Monday because he felt that "if someone was real dissatis- fied they might accidentally say something to [him] about the situation." Stubblefield discussed Patlan with McClain and pointed out to him that "Pete was standing leaning against a table talking to someone." That same day Patlan, his wife, and Jose Sosa were fired. After his discharge, at about 4 o'clock, Sosa entered Stubblefield's office and among other things, according to Stubblefield, said "something to the effect that we're going to have a union in here whether you like it or not." That same day Stubblefield called Lipshie and reminded him of the conversation of the previous week. He pointed out to Lipshie that dissatisfied employees were holding meetings. He asked Lipshie to "speed up" and "hurry this thing up a little." On December 11, 1973, employee Alberto Esquivel'was discharged. On December 12, 1973, Lipshie responded to Stubblefield's urgings after which Stubblefield assembled the employees and announced wage increases, weekly pay- checks, holidays, vacations, hospitalization and medical life insurance, and optional dependent coverage. After pointing out that the Respondent gave its employees wages and benefits which compare favorably with- the industry because "we work together, we solve our problems, togeth- er, and in this way we can progress together," Stubblefield closed his remarks as follows: "As a matter of fact this Company has been in existence since 1893. Salant Corpo- ration has 29 Plants. In the United States only 9 Plants have a Union and most of these came on during World War II. The last Plant that was organized was in 1966. Unions have tried'since then and have not succeeded be- cause our employees said No to the Union. Let us work together here as we have during the past month and let us grow together in this way, so I can always talk to you about happy news as I did today." On this day Carlos D. Juarez, Jr. was fired. the meaning of the Act at the time of their discharges. First: At the time of his discharge Juarez worked in the warehouse under the supervision of McClain who spent about 50 percent of his time in the warehouse. Fourteen men and ten women were employed in the warehouse. The women were inspectors of small pants for children. Other employees performed sorting, picking, packing, checking, putting stock in bins, and loading and unloading trucks. Juarez had not worked in a garment plant before. Juarez' separation slip listed him as an assistant supervi- sor which information came to Juarez as a surprise since he had not been previously informed of this title. McClain had never mentioned to him that he was a supervisor nor had any of the employees been given such information. Juarez was hired on October 2, 1973. After about 2 weeks of doing various jobs in the finishing department McClain 8 told him that he was going to "help" him in the finishing department. After the fourth week McClain told Juarez that he wanted him to "help" him in the warehouse where he continued to work until he was fired on Decem- ber 12, 1973. Each morning Juarez met with McClain at which time McClain gave him orders to transmit to the warehouse em- ployees.' Most of the time Juarez performed the same man- ual labor as the other warehouse employees. Juarez did not receive a wage raise when he was first assigned to the job, but around 2 weeks before he was discharged (November 24, 1973) his wages were raised 15 cents an hour to $1.75 an hour. Sometimes, after an employee had finished a job, Juarez transferred the employee to another job which had been designated by McClain. When no job was designated, oc- casionally Juarez would make the transfer but then would check with McClain. Occasionally McClain would transfer an inspector to an- other job and instruct Juarez to choose the one for the transfer. Since the inspectors performed the same work it made little difference which one was chosen. Sometimes Juarez and other employees remained at work after Mc- Clain had left for the day. On these occasions McClain told Juarez what was to be done. After the work was completed the employees left. McClain determined when overtime would be assigned but some times Juarez chose the employees who were to stay, usually volunteers. This work involved the loading and unloading of trucks. McClain asked Juarez to inquire of employees why they were late for work, to whom Juarez suggested a few times that they not make a habit of it, that "after doing this too much they might get fired."10 Twice McClain was absent for part of a day. On these occasions McClain instructed Juarez what was to be done. B. The Alleged Supervisory Status of Carlos D. Juarez, Jr., and Pedro Patlan The Respondent concedes that if employees Carlos Jua- rez, Jr., and Pedro Patlan are not supervisors, they were discharged in violation of the Act. Thus the threshold ques- tion is whether Juarez and Patlan were supervisors within Juarez followed the orders. ' On one occasion a dispute arose between Roger Marti- 8 McClain did not testify although he was in the court room. 'Juarez explained some of these orders as follows: "... like this morn- ing let's put three men over here stacking these boxes and take this other four men stacking pants over there on the shelf. And if we had some orders to be picked up, he said put so and so, he would give me the names, differ- ent names of the employees, and put those to get the orders out" 10 Juarez explained , " He [McClain] didn't tell me that but I figured myself 7 Insurance benefits and vacation benefits were not in effect at the time . that this could happen." 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nez and Juarez as to who was to give orders. McClain told employees Juarez would give the orders. Juarez punched a timeclock and was paid overtime as other employees. He attended no supervisors' meetings. He had no disciplinary authority. Juarez was not replaced af- ter he was discharged. Pedro Patlan had worked for the Respondent for 7 weeks at the time of his discharge. For about 2 weeks after his employment he sorted, sized, and boxed materials com- ing out of the oven for which he received $1.60 an hour, the statutory minimum. Thereafter he was given the job in the finishing department formerly occupied by Juarez before he was transferred to the warehouse. McClain was Patlan's supervisor. About 30 to 35 employees worked in the finish- ing department. Some employees operated buttonhole ma- chines, top pressers, leg pressers, and zipper machines; other employees hung garments for the oven and cut elas- tic. Some were repair operators. All were routine tasks. On the day Patlan assumed Juarez' job McClain told him that he "was going to be promoted to assistant supervi- sor" and that he was taking Juarez' place; that he would be earning the same wages and that Juarez would show him "what to do on the job." I I Juarez for a period of about 30 minutes then showed Patlan how to pick up the production count for each employee and said that if he needed any- thing else to ask him or get in touch with McClain. The short period of instruction required depicts the simplicity and routine character of Patlan's job. Patlan described his daily routine as follows: The first thing I would do is I would hand each of the employees the sheets 12 that they would place the tickets on and then I would find out . . . if there was anyone absent and ... try to get them situated so they would get started. . . . If there was anybody ab- sent, I would report that to Mr. McClain and let him know. And from there during the day .. . other than picking up the counts, I would make sure that they had whatever material they needed to work with and a lot of times they would call me that they needed a mechanic. . . . So that in general was all I did during the day to make sure that they had whatever they needed. . In regard to Patlan's work the credible record reveals, further: He did no work on the machines. Upon the request of McClain he told pressers to go to the warehouse. He did not handle requests for time off. He handled-no warnings except on one occasion McClain told him to tell some em- ployees to'quiet down. A few times when machines broke down he told employees to work on another vacant ma- chine. (Sometimes the employees made the transfers them- selves.) He had no disciplinary authority. He was never 11 The Respondent's personnel records show that Patlan 's wage was in- creased . to $1.675 an hour on November 24, 1973. These were referred to as gum sheets to which the operator would paste the ticket from the bundle of pants on which he was working; "each ticket represented so many dozens ." Patlan obtained the count from these tickets which he placed on the production sheet. asked by McClain what he thought of an employee's work. He never assigned employees to cleanup work. On a couple of occasions he indicated that a garment would not pass but he had never been instructed "on what kind of qual- ity." He entered employees' downtime on the gum sheets which was necessary for payroll purposes. He entered an employee's absence on the production sheet. He entered information on the gum sheet and the production sheet: he made an entry thereon when the employee was on repress- ing. He supplied materials for the repair girls. He moved toppers to leggers and vice versa on instructions from Mc- Clain. On several occasions he assigned overtime to em- ployees which was determined on the basis of McClain's instruction: "If there is so many benches out there per each worker, then if there is more than that amount they should stay and if not, they can go home at the regular hour." He did not transfer present employees if employees were ab- sent. He "had to see that everybody had the material to work with." He did nothing if the pressers were over load- ed. He did not check the inspector's work. He did not, on his own, balance the lines when overloading occurred. He did not, on his own, transfer employees for lack of work. He assigned overtime per instructions on a day McClain. was absent. On instructions, of McClain he inquired of an employee why his production was down. On instructions of McClain he sent leggers to the warehouse. On several occa- sions when repress work piled up he decided who would be assigned to repress work. He did not- know how to operate the machines or the methods the employees were using in their operation. He did not know the leg pressers were to be activated for 5 seconds. He did not instruct new em- ployees on their jobs. An employee witness for. the Respondent testified that McClain had never told him that Patlan was his boss nor had anyone ever called Patlan an assistant supervisor. Patlan envisioned his supervisory authority -as follows: "I considered myself being there as nothing more than a messenger boy and somebody to get the little knicknacks. I never felt that I had any authority there whatsoever." Stubblefield described the alleged supervisory authority of Patlan as follows: His responsibilities would be to assign the work to. balance the work load between operations, to check quality coming off of the various operations, keep cer- tain records of production, even earnings after the piece rates were established. He has the authority to approve or disapprove, whichever the case might be, the off standard time that an operator might have when their job assignment is a piecework job and they have to be moved from this job for any reason. In addition Stubblefield said Patlan had authority to transfer employees from one job to another, and grant time off and overtime.13 13 Stubblefield had not personally spoken with either Juarez or Patlan about their authority. McClain, who had been present in the courtroom and who would have had personal knowledge of the work performances of Pat- Ian and Juarez, unexplainedly did not appear as a witness. Not only was Stubblefield's testimony secondary but there is no credible evidence that the alleged. extent of the authority of Juarez or Patlan was ever communicated CARRIZO MANUFACTURING CO. Second: Section 2(3) of the Act excludes from the defini- tion of the term "employee," and therefore excludes from the protection of the Act, "any individual employed as a supervisor." Section 2(11) of the Act defines "supervisor" as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to ad- just their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. "[T]he employer cannot make a supervisor out of a rank- and-file employee simply by giving him the title and the theoretical power to perform one or more of the enumerat- ed supervisory functions." N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958); "what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demons- trating the existence of such authority." Oil, Chemical and Atomic Workers International Union v. N.L.R.B., 445 F.2d 237, 243 (C.A.D.C., 1971). Thus the title assistant supervi- sor, if bestowed, was meaningless within the statutory defi- nition unless the supervisory power as envisioned by the statute was actually exercised and exercised at the time of the employee's discharge. If the evidence is interpreted most favorably in support of the Respondent's claim, the authority of Juarez and Pat- Ian was limited to transferring, assigning, and responsibly directing employees. Had Juarez and Patlan actually exer- cised such authority, to satisfy the definition of supervisor, the exercise of such authority must have been "not of a merely routine or clerical nature," but must have required the "use of independent judgment"; for the exercise of some supervisory tasks in a merely "routine," "clerical," "perfunctory," or "sporadic" manner is not sufficient to bring an employee under the statutory definition of super- visor. N.L.R.B. v. A. E. Nettleton Co., 241 F.2d 130, 132 (C.A. 2, 1957). Nor will the existence of independent judg- ment alone suffice; for "the decisive question is whether [the individual involved] has been found to possess authori- ty to use [his] independent judgment with respect to the exercise by [him] of some one or more of the specific au- thorities listed in Section 2(11) of the Act." N.L.R.B. v. Brown & Sharpe Manufacturing Company, 169 F.2d 331, 332 (C.A. I, 1948). The credited evidence in this case does not support a finding that Juarez and Patlan at the time of their dis- charges exercised job functions which aligned them with management. Juarez worked as other employees; he was little more than a "conduit" for McClain who neither held him out to the employees as a boss nor vested in him the right to exercise judgment in respect to the specific authori- ties listed in Section 2(11) of the Act. Patlan described his duties well when he testified: "I considered myself being to them or that such authority was exercised by them. Thus Stubblefield's self-serving testimony merits little weight. 177 there as nothing more than a messenger boy and somebody to get the little knicknacks. I never felt that I had any authority there whatsoever." The work which Patlan performed in connection with the production and gum sheets was of a plant clerical na- ture in that it involved simple record keeping of a routine nature. Moreover, McClain did not hold Patlan out to be a boss nor did he bestow upon him any of the supervisory powers listed in Section 2(11) of the Act. There was no showing that the duties of Juarez or Patlan gave the feeling of control, power, or superiority that one finds in a supervisor. See N.L.R.B. v. Security Guard Ser- vice, . Inc., 384 F.2d 143 (C.A. 5, 1967). As was true in such case the title and minor decision making power of Juarez and Patlan, if it may be considered as such, did not com- plete the picture of petty panjandrums. In any event the rule de minimis applies here. "If any authority over some- one else, no matter how insignificant or infrequent, made an employee a supervisor, our industrial composite would be predominately supervisory. Every order-giver is not a supervisor. Even• the traffic director tells the president of a company where to park his car." Idem. 14 Patlan's wage rate of $1.675 an hour and Juarez's wage rate of $1.75 an hour were incompatible with their alleged roles as supervisors since rank-and-file employees, at the time of their discharges, were being paid a base rate of $2.05 an hour, an amount exceeding either that of Patlan or Juarez. It is obvious that a feeling of power and superi- ority did not emanate from these marginal wage rates. Moreover, it seems contra to the realities of the industrial world that the Respondent would have turned over to Pat-' lan and Juarez the exercise of independent judgment with- out- additional training when their experience in the gar- ment field was limited to a few weeks. Additionally Stubblefield's testimony suggests that the Respondent's claim that Patlan and Juarez were supervi- sors was prompted as a contrived defense against their dis- charges for statutorily protected activities, for Stubblefield was quick to deny the supervisory status of Kane whose supervisory authority, if any, was more pronounced than that of Patlan or Juarez. Not only did Kane pass on the hire of Esquivel but he, as head mechanic, was the only representative of management directly over Esquivel and the janitors in the Carrizo Springs plant. (Rios was seldom at Carrizo Springs; he spent almost all his .time in the Mex- ican plants.) Stubblefield testified that the "people he [Kane] supervises are his helper and the janitors or watch- men in the plant." If the Respondent did not consider that Kane was a supervisor within the meaning of the Act it was hypocrisy for it to have hung the title of supervisor on Juarez and Patlan. Accordingly it is found that Juarez and Patlan at all times herein mentioned were employees within the mean- ing of the Act and as such employees were entitled to its benefits. See Purity Food Stores, 150 NLRB 1523, 1524, 1525 (1965), and American Coach Company, 169 NLRB 1065 (1968). 1e'•The legislative history of §2( 11) ten is to support the Board's view that certain employees with minor supervisory duties, such as straw bosses and leadmen, were not intended to be excluded from the coverage of the Act." N.L.R.B. v. Quincy Steel Casting Co., 200 F.2d 293, 296 (C.A. I, 1952). 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Discharge of Pedro Patlan According to Pedro Patlan's separation slip he was dis- charged for "unsatisfactory performance on the job." Nev- ertheless, his work performance was satisfactory. The real reason for his discharge as expressed by Stubblefield was: "He was discharged because it was deemed that a person in supervision should not be maintained on that job when they were attending meetings with dissatisfied, allegedly dissatisfied employees without telling his supervisors in the organization." Stubblefield initiated the discharge of Pat- lan. On the day of Patlan's discharge McClain told Patlan when he asked for a specific reason for his discharge, "you just didn't work out." On being pressed further McClain said, "the women on the buttonhole machines, they are talking too much and not doing enough work." On the same date Stubblefield said that he had observed Patlan "standing leaning against a table talking to someone" and remarked to McClain that he didn't think Patlan "was per- forming his supervisory duties as he should" because while they were standing there Patlan was "not doing anything really." 15 D. The Discharge of Rebecca Patlan Employee Rebecca Patlan, the wife of Pedro Patlan, was also discharged on December 10, 1973. Her separation slip also cites "unsatisfactory performance on the job" which was not the true reason for her discharge. According to Stubblefield, who initiated the discharge of Rebecca Pat- lan, "the real reason we discharged Rebecca was the fact that we were discharging her husband because he was dis- loyal supervisor with the Company. Due to Rebecca's posi- tion in the office handling matters that, typing my letters, for instance, certain records, it was quite obvious that if she had good relations with her husband she would be disgrun- tled and unhappy about that and I didn't feel that-she would be an employee that could be trusted with that con- fidence after we had discharged her husband." Rebecca had accompanied her husband to Crystal City, Texas, when he sought help for the employees from the union representatives and had attended both employee meetings. She had mentioned to Graves that she "wasn't satisfied." At the time of her discharge she was in training for a payroll clerk which entailed computing the amount that the employees earned from the payroll cards. At the time she was training several girls to take over the job she was leaving. She described this job as a receptionist, "girl Friday," typist, and file clerk. She also placed calls and answered the phone. She worked in the general office area. The credited record does not establish that she was a confi- dential employee. is The remark of McClain at th4pdischarge exit, and Stubblefield's obser- vation of Patlan in the plant and 'his remark to McClain, arouse a likely inference that the Respondent was preparing for a defense against the charge of pretext and that the supervisory defense was an afterthought. E. The Discharge of Jose Sosa Employee Jose Sosa's separation slip also discloses that he was discharged on December 10, 1973, for "unsatisfac- tory performance on the job." Sosa had worked about 2 months before he was discharged. He operated a leg pres- ser which was required to remain in the press position for 5 seconds during each press operation. Its time cycle was controlled by a timing valve which could be manually ad- justed. to At the piecework explanation employee meeting on No- vember 30, 1973, according to Stubblefield, Sosa remarked that "people could make that much working in the field." Thereafter Stubblefield reported to McClain that Sosa "seemed to have a poor attitude, negative attitude to the approach of our number of dozens we were asking for on the job to make production" and that he "thought he should keep an eye on him." Sosa attended the employee meetings at the Texas Mi- grant Council building on December 6 and 7, 1973. Sosa invited about 15 employees to the meeting. At the meeting Sosa parked his 1970 station wagon in front of the build- ing, where it was in the view of Salgado when he passed the building. Salgado was acquainted with Sosa and the auto- mobile which Sosa parked in front of the Texas Migrant Workers building. Salgado and Sosa lived on the same street about three or four blocks apart. On Monday, December 3, 1973 (December 3 was the date on which the incentive pay plan was put in effect), Ray adjusted, the timer on Sosa's presser at which time he also adjusted the timer on other pressers. Prior to Ray's advent Sosa had adjusted the timer because its pressing sequence was too long, but after Ray's adjustment Sosa did not again meddle with the timer. On Tuesday morning, December 4, the press was "staying down too long." Sosa requested the mechanic to adjust the timer which he did. The mechanic's adjustment did not accommodate. the 5 second cycle. Ray appeared and adjusted the timer and told Sosa that if ".the timer was off again" he would be fired. Sosa tried to explain to Ray that the mechanic had adjusted the timer but Ray did not believe him and re- sponded, "Oh, come on-Don't give me that sh-." 11 According to Ray, on Monday morning December 10, 1973, Ray saw Sosa's presser operating out of cycle 18 and went to Stubblefield whom he advised that he intended to discharge Sosa. Stubblefield approved. Stubblefield testi- fied that "Sosa had moved the timer. on his legging ma- chine on different occasions to speed up the time cycle on the machine and he had been warned repeatedly 19 that this 16 If the pressing cycle was less than 5 seconds an inferior press resulted; however, the operator, if on incentive work, could earn more money. On the da of his discharge Sosa was not engaged' on incentive work. 7 According to Ray he adjusted Sosa's presser on three occasions. On the third occasion Ray said he "sort of lost [his] temper," at which time Sosa denied that he had meddled with the timer: Ray responded, "that's a bunch of stuff." Ray also reminded Sosa that if the machine was not running properly he should "call a mechanic or let somebody know it wasn't work- ingsright" . . Apparently (if Ray is to be believed) Sosa's presser operated out of cycle from Monday'morning until about 4 o'clock Monday afternoon at which time Sosa was fired. 19 According to Ray Sosa had been warned only once. Sosa had received no written warnings. CARRIZO MANUFACTURING CO. could not be tolerated by the Company. He continued to do this and in spite of the warnings so Mr. Ray, Richard Ray, our engineer, finally after several warnings discharged Mr. Sosa for this particular instance." 20 On December 10, the day of Sosa's discharge, he was assigned to repressing which was not a piecework job. Shortly before 4 o'clock (4 o'clock was Sosa's quitting time) Sosa was called to Garcia's office and informed that that was "all for him." Sosa asked, "Why?" Garcia replied, "I don't know." On departing Sosa saw Stubblefield to whom he asked to speak. Both went to Stubblefield's office where Sosa asked Stubblefield why he was fired. Stubblefield an- swered that "he had been observing [him] all day and he wasn't satisfied with [his] emphasis on the job." Sosa told Stubblefield that he was "pressing more than anybody." Stubblefield answered that "he knew" but there were "some other people doing as much or pretty close to that." Sosa described the remainder of the conversation. "I told him that I knew about Joaquin [Salgado] told him about our meetings and about us getting a union over the factory. At this point he just, you know, looked at his desk. He didn't answer. And I started talking again and then he started staring at me. I told him, `Even though I'm fired and no longer have the job here, we are still going to get this Union in here.' " 21 Although Stubblefield said that he was aware of the charge against Sosa of tampering with the timer on the day of his discharge, he did not tell Sosa the nature of his un- satisfactory services. On December 10, 1973, McClain remarked to Juarez, "Look at Sosa. He's not working. He's working too slow." 22 On the day of his discharge Sosa indicated that his presser was not operating properly. There were about 8 or 10 pressers in the finishing depart- ment. From time to time McClain, Harold Kane, mechan- ic, Alberto Esquivel, mechanic's helper, and Ray adjusted the timers on these machines. Patlan explained, "some of the other employees would tell me that it was going up too fast or it was staying down too long but I couldn't tell the difference so I would just tell them to go over on another machine until we got a mechanic to fix it." Esquivel testified, "the presser would go down too slow or go up too slow. I would move the knobs under the ma- chine or set it somewhere and I would fix it." 20 Employee Bustamante, a 19-year-old leg presser , testified on behalf of the Respondent in respect to the Sosa incident . Bustamante first testified that he saw Ray fix the timer on Sosa's presser one time after which Sosa readjusted it. Later he testified that he saw Ray adjust the timer on Sosa's presser three times and Sosa readjusted it "three or more" times . On cross- examination Bustamante testified that he could not see the timer valve from where he worked and that he had not paid too much attention. Bustamante had been invited by Sosa to attend the employees ' meeting at the Texas Migrant Council building but did not attend . First Bustamante denied that he had been asked by Sosa to attend . Later he admitted it. Bustamante was not a reliable witness and where his testimony conflicts with other credited witnesses it is discredited . He was obviously trying to accommodate his employer. Stubblefield admitted that the remark referring to the Union was made but denied Sosa's remarks about Salgado . On this point Stubblefield is dis- credited. 22 The uncontroverted and credited testimony of Juarez. 179 F. The Discharge of Alberto Esquivel Alberto Esquivel was hired on October 10, 1973, and discharged on December 11, 1973. Thus he worked 2 months. He was hired as a mechanic's helper. He had no previous experience, which he related to Harold Kane, head mechanic, when he interviewed him for hire. Kane said that "was O.K. because he was going to teach [him]." Kane told Esquivel that he needed tools but since he had none he would allow him to use his tools. While Esquivel knew that he needed tools, he did not purchase tools be- cause of a lack of money which fact he related to Garcia. Ray said it was not a requirement that mechanics buy tools. Esquivel attended the two meetings of the employees in the Texas Migrant Council building. As Esquivel moved over the plant.on his work assignments he notified about 25 employees of the meetings. He told the employees that there was to be a meeting "pertaining to complaints of some of the workers and about the price, it was kind of low, and that if possible we might try to organize a union." At the second meeting, while "facing toward the picture window" Esquivel saw Salgado drive past the Texas Mi- grant Council building three times. Prior to his discharge, Esquivel had received no warn- ings with respect to his work performance. On December 11, 1973, Ray approached Esquivel while he was working on a sewing machine plug and asked him to follow him to Garcia's office, where he discharged him. Ray said that Esquivel "didn't have any tools to use and [he] wasn't a good mechanic and then he asked [him] if [he] were to get any other job and needed a reference to have the one that [he] was going to get the job, to have them call him for a reference"; that he would "tell them that [he] wasn't a good mechanic. but [he] was a good worker." Shortly before Esquivel was discharged Kane had been sent to Dallas for a week's course on the repair of Reece buttonhole machines. Fred Rios, chief mechanic, filled in for Kane for the week in December. Rios arrived on Mon- day, December 10, 1973. On Monday afternoon, according to Rios, he reported to Ray that "the helper ... wasn't much interested in learning" although he spent little time with Esquivel that day. On Tuesday Rios advised. Ray that "it would be best to replace him." Rios testified that he saw Esquivel once wiring a little trolley drop cord. To the ques- tion, "Did you observe him doing anything else while you were there those three days?" Rios answered "No sir, I didn't. I didn't know where he was. I had work to do. I just went and did the work." Rios further stated he had not observed him. Esquivel received no assignments from Rios. Kane never complained to Rios about Esquivel.?3 According to Ray he recommended Esquivel's discharge to Stubblefield based on the recommendations of Rios.24 23 It is clear from Rios' own testimony that Rios had no factual basis for reporting to Ray that Esquivel was not interested in learning or that it would be best to replace him, which recommendation no doubt was not given . Rios was a disingenous witness and I conclude that the critical parts of his testimony were fabricated to accommodate his employer. Moreover, the testimony of Ray and Rios on the subject does not jibe. 24 According to Ray one of Rios' specific complaints in respect to Esquiv- el was that Esquivel did not know how to put a wheel on a spreader. Rios Continued 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ray told Stubblefield, "Fred (Rios) has been working with him yesterday and today and Fred says he is terrible. He won't even try." Stubblefield recited the reason for Esquivel's discharge as follows: His supervisors advised that he showed lack of in- terest, inability to perform, the lack of adhering to instructions that were given him by his supervisor to the point that he would not develop into the type me- chanic that we would expect and must have. And after several weeks of this type performance, it was deemed necessary to discharge him and start someone else G. The Discharge of Carlos D. Juarez, Jr. Carlos D. Juarez, Jr., was discharged on December 12, 1973, according to his separation slip because of "dissatis- fied work" which Stubblefield explained: the foreman he worked for had repeatedly asked Car- los if he knew anything about any meetings, if he knew anything about any dissatisfied employees, and he asked him many times if in fact he did, if he would come and talk with him, who was Billy McClain, or if he didn't want to discuss it with Billy, if he would come and talk with me about it with any information he might have of dissatisfied employees. And Carlos instead of, according to Billy, instead of advising him and telling him what he knew or what he learned from the people that worked for him, he avoided him, he shunned him, and if it is anything a company can't tolerate, it is disloyal supervisors.. . . Juarez attended the Friday, December 7, 1973, meeting at the Texas Migrant Council building. Juarez told the em- ployees present that if they thought he could help them he would talk to McClain. On the next morning, December 8, 1973, McClain was summoned to the office. Upon his return he asked Juarez if he knew anything about the meetings. Juarez answered in the affirmative. McClain asked why Juarez had not told him about the meetings. Juarez indicated that he hadn't had a chance, whereupon McClain asked Juarez what the employees wanted. Juarez responded, inter a/ia, that the employees were not satisfied with their wages. McClain re- plied, "don't you think $1.60 is enough?" Juarez responded by saying that the $1.75 he was getting was not enough, and that there were no benefits. Juarez further indicated that he went to the meeting "to find out what they want- ed." McClain reminded Juarez that he was working for the Company. Juarez responded that he knew he was working for the Company, "but it looked to [him] as if [he] was in the same situation as the workers because [he] didn't re- ceive any paid holidays or insurance benefits either." On December 12, 1973, about 11:30, Garcia summoned Juarez to the office where McClain was sitting. McClain said, "Carlos. .. . I don't know how I am going to tell you this, but you're been my best friend in this area . . . but the only thing is that I have to terminate you from the job because of unsatisfactory work." Juarez protested saying that the discharge was because he asked for more money and benefits. H. The Unlawful Interrogations Whether the Respondent is guilty of unlawfully interro- gating employee Patlan rests upon a finding that Joaquin Salgado was an agent of the Respondent. The following factors support the finding that Salgado acted as the Respondent's agent: (1) Employee Rebecca Patlan, whose testimony is credited, observed Salgado confer with Stub- blefield, Ray, and others in Graves' office, leave, and then return, which strongly indicated that Salgado was sent on a mission. (2) Ray, after leaving Graves' office, approached Salgado and Patlan while in conversation in the plant and listened in on part of the conversation, all of which indi- cated that Ray had knowledge of Salgado's mission. (3) Salgado, after testifying about his conversation with Pat- Ian, said, "I went back to Mr. Stubblefield," the clincher which confirms that Salgado had visited with Stubblefield prior - to his accosting Patlan. (Emphasis supplied.) See N.L.R.B. v. Dayton Motels, Inc., 474 F.2d 328, 331 (C.A. 6, 1973), and N.L.R.B. v. General Metal Products Company, 410 F.2d 473 (C.A. 6, 1969), cert. denied 396 U.S. 830 (1969). Accordingly, it is found that by Salgado's interrogation of Patlan and Supervisor McClain's interrogations of Car- los D. Juarez, Jr., as above detailed, the Respondent violat- ed Section 8(a)(l) of the Act. See N.L.R.B. v: Super Toys, Inc., 458 F.2d 180 (C.A. 9, 1972); Hendel Manufacturing Company, Incorporated, .197 NLRB 1093 (1972). 1. The Discriminatory Discharges The five discharges may not be viewed as isolated inci- dents. Each was an integral part of a machination engi- neered by the Respondent to discourage membership in a labor organization and to stifle employees' zest (which was apparent at the time) to engage in concerted activities for their mutual aid and protection. The discharges were inex- tricable occurrences and may not be disassociated one from the other. That the Respondent knew or suspected that its employees had been in contact with the Union seems obvious from Salgado's gratuitous remark to Patlan, "We don't want a union in here." Moreover, Stubblefield admitted that Sosa, upon his discharge, warned him, "we're going to have a union in here whether you like it or not." After this remark there can be little doubt that the Respon- dent knew a union had been in the picture and its actions thereafter cannot be defended on the ground that it had no knowledge of union activity." In any event, in that a union was in the offing, the discharges which were unlawful un- did not mention this deficiency in his testimony even though he was asked 25 Esquivel and Juarez were discharged after Stubblefield learned from several times on cross-examination to specify what work Esquivel could not Sosa that a union was in the picture . Had Patlan and his wife been dis- perform . charged prior to Sosa 's discharge (a circumstance which is unclear in the record) the same situation would have existed. CARRIZO MANUFACTURING CO. 181 der Section 8(a)(1) of the Act inherently discouraged em- ployees from becoming members of the Union. Respondent concedes that, if Patlan and Juarez were not supervisors, they were wrongfully discharged. However, as- suming, arguendo, that these employees were supervisors, their discharges were nevertheless in violation of Section 8(a)(l) of the Act and the remedy would be the same. The discharges of Patlan and Juarez were part of the Respondent's strategy to squelch its employees' concerted activities and dissuade them from a movement toward the Union. Their discharges had a tendency to deter employees from engaging in concerted activities and furthering any union organizational aspirations. The discharges were an integral part of a pattern of conduct aimed at penalizing employees for exercising their rights under the Act. The grounds utilized by the Respondent to substantiate the dis- charges of Patlan and Juarez were advanced for the pur- pose of concealing its real motive; i.e., to stamp out con- certed activity and stymie the prospects of employee union affection. See Krebs and King Toyota, Inc., 197 NLRB 462 (1972); Miami Coca Cola Bottling Company d/b/a Key West Coca Cola Bottling Company, 140 NLRB 1359 (1963); and Fairview Nursing Home, 202 NLRB 318 (1973), en- forced 486 F.2d 1400 (C.A. 5, 1973); 26 N.L.R.B. v. J. B. Martin Company, 395 F.2d 690 (C.A. 4, 1968). The discharge of Rebecca Patlan fell in the Respondent's same pattern of misconduct and was in vio- lation of the Act. Her discharge manifests the Respondent's penchant toward violating the Act in order to scotch its employees' resort to collective endeavor; for an employer may not discharge a relative of an employee engaged in protected concerted or union activity if the dis- charge is related, as it was here, to such activity. Tolly's Market, Inc.-Ben Franklin, 183 NLRB 379 (1970); Golub Bros. Concessions, 140 NLRB 120 (1962); The Colonial Press, Inc., 204 NLRB 852 (1973); Big Y Supermarkets, 173 NLRB 405 (1968); and Champion Papers, Inc. (Ohio Divi- sion) v. N.L.R.B., 393 F.2d 388, 395 (C.A. 6, 1968). Sosa's automobile was parked where Salgado could have seen it while Sosa was attending the employees' meeting at the Texas Migrant Council building. Esquivel was standing "facing toward a picture window" in the same building while Salgado passed the building three times. Thus, since it may reasonably be inferred that Salgado reported these facts to the Respondent, it appears no coincidence that Sosa and Esquivel were chosen for discharge. While Sosa's and Esquivel's discharges were a part of the Respondent's pattern of misconduct there are other factors which establish that the Respondent's "real motive" 27 in 26 In the light of McClain's interrogation of Juarez and the reasons given for his discharge, the following language from N.L.R.B. v. Brookside Indus- tries, Inc., 308 F.2d 224, 228 (C.A. 4, 1962), is appropos: "[His] discharge ... had the effect of interfering with and restraining the unionists in their membership by frightening them with reproof of a supervisor for not report- ing on union activity." See, also, N.L.R.B. v. Better Monkey Grip Company, 243 F.2d 836 (C.A. 5, 1957). 27 "[T]he 'real motive' of the employer in an alleged §8(a)(3) violation is decisive...." N.L.R.B. v. Brown d/b/a Brown Food Store, 380 U.S. 278, 287 (1965). "It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test" Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Mo- tor Express] v. N.L.R.B., 365 U.S. 667, 675 (1961). discharging Sosa and Esquivel was unlawful. Sosa's dis- charge occurred shortly after he had attended and invited employees to attend a union meeting and within 1 workday after the employer had learned of its employees' organiza- tional activities.28 Sosa's discharge followed the expression of Stubblefield's dissatisfaction with Sosa's attitude as it was reflected in an employee protest and an admonition to McClain to "keep an eye on him." While the credible evi- dence indicates that Sosa was warned only one time in respect to the speedup of the cycling of his presser, Stub- blefield maintained that he was discharged after "several warnings." Stubblefield's stretching of the truth in this re- gard adds weight to the inference that Sosa's discharge was of a pretextual nature as does the fact that Stubblefield, although he was asked, failed to reveal to Sosa the alleged real reason for his discharge in the post-discharge conver- sation. While the Respondent implied that Sosa had med- dled with the timer to increase his piece rate earnings, such implication has no factual support because on the day of his discharge he was not on a piece work rate. Thus Ray must have known Sosa lacked this incentive and probably had not fiddled with the timer. Moreover, if Sosa's alleged meddling had been the real reason for his discharge it is unreasonable that Ray would have permitted Sosa to oper- ate the presser, which Ray' claimed would have produced defective work, from Monday morning when Ray first ob- served the fast cycle until Monday afternoon at almost 4 o'clock. If Sosa's machine was out of cycle, Ray unexplain- ably paid it little heed, which indicates that either the pres- ser was not out of cycle, Ray had not observed it, or Ray considered that it was not producing defective work. In- deed there is some question whether Sosa's presser was out of cycle to the extent of producing poor quality since on the day of Sosa's discharge Stubblefield "had been observ- ing [him] all day and he wasn't satisfied with [his] emphasis on the job." Surely if Sosa's presser had been detrimentally out of cycle Stubblefield's practiced eye would have ob- served it and he would have corrected it. Moreover, Mc- Clain's remark to Juarez that Sosa was "working too slow" does not indicate that Sosa was operating the presser at a detrimental speed. It is further significant that Ray caused the discharge of Sosa without accosting him with his al- leged infraction or making an inquiry as to the cause of the alleged excessive speed of the presser.29 Sosa was denied an opportunity to respond to the charge against him and at his postdischarge confrontation with Stubblefield, Stubblefield failed inexplicably to reveal what later the Respondent claimed was the "real reason" for Sosa's discharge. The "real reason" for Sosa's discharge was to discourage- its employees' organizational activity protected by the Act. Whether the Respondent knew of Sosa's organizational ac- tivity is immaterial in fixing the Respondent's guilt since Sosa's discharge, which was without justifiable cause and inextricably a part of the unlawful discharges of Patlan and 28 The discharge of an activist hard on the discovery of organizational activity "strongly indicates" that the discharge was unlawfully motivated. N.L.R.B. v. Overnite Transportation Co., 308 F.2d 284, 287 (C.A. 4, 1962). 29 "Perhaps most damning is the fact that [the employee was] summarily discharged after reports of . . . misconduct . . . without being given any opportunity to explain (his conduct] or give [his] versions. United States Rubber Company v. N.L.R.B., 384 F.2d 660, 662 (C.A. 5, 1967). 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his wife, was effected by the Respondent for the purpose of discouraging organizational activity and inherently accom- modated such unlawful purpose ,30 a fact which the Re- spondent must have reasonably known . Such conduct bears its own indicia of intent.31 The Respondent 's claim that "the sole motivating factor behind Sosa's discharge was a work-related reason" is at odds with the credited record herein and is not well taken. Esquivel's discharge likewise falls within the pattern of the Respondent's misconduct. In the light of this pattern Esquivel was a likely candidate for discharge for at least three reasons : ( 1) He was an activist in rounding up em- ployees for the employees ' meetings ; (2) As a mechanic's helper he had full run of the plant and thus the opportunity was available for spreading the word; (3) As an inexperi- enced mechanic's helper there were arguably grounds for his discharge . Ray discharged Esquivel "for poor perfor- mance, including failure to have necessary tools." 32 In re- spect to Ray's complaint about the absence of tools, Ray admitted that the Respondent had not made it a require- ment that employees have tools. Moreover , Kane had of- fered Esquivel the use of his tools and "at that time" the Respondent had "bought a full set of tools" which it had "for the mechanics ." Thus this reason for Esquivel's dis- charge advanced by the Respondent was false. As to the charge of poor performance , albeit Stubble- field maintained that Esquivel was discharged "after sever- al weeks of this type of performance," Esquivel had re- ceived no warnings nor had Head Mechanic Kane, who supervised him, complained of poor performance .33 Indeed Esquivel had been employed for only 4 weeks which seems a rather brief period for an employee to have become profi- 30The Respondent insists that Patlan was not told the truth in respect to the reason for his discharge, because to have informed him that "he was being discharged for concerted activity ... might have had a tendency to dissuade rank-and-file employees." The Respondent's concern has a spe- cious ring since it would have been a dull employee indeed who would not have connected the discharges of Patlan and his wife, otherwise satisfactory employees, on December 10, 1973, to their attendance at the employees' meeting on December 6 and 7, 1973. To conclude otherwise would stretch credulity to its breaking point. 11 Cf. Erie Resistor Corporation v. N.L.R.B., 373 U.S. 221 (1963); Signal Oil and Gas Company v. N. L. R. B., 390 F.2d 338 (C.A. 9, 1968). . an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his ac- tion was such encouragement or discouragement . Concluding that en- couragement or discouragement will result, it is presumed that he in- tended such consequence . In such circumstances intent to encourage is sufficiently established . (The Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17, 45.1 And where as, here, the employer's conduct causes an employee to suffer adversely as the result of his espousal of or adherence to a union, such conduct has the inherent effect of discouraging union activity and carries with it the implication of the required intent. Specific evidence of intent is not an indespensible element of proof of violation of § 8(a)(3) and an employer's protestation , in such circumstances, that he did not intend to discourage union adherence or activity is unavailing. Cf. Radio Officers' Union, etc. v . N.L.R.B., 347 U.S. 17, 45, 74 S. Ct. 323, 98 L.Ed. 455; Local 357, International Brotherhood of Teamsters, etc. v. N. L. R. B., 365 U.S. 667, 675, 81 S.Ct. 83, 85, 6 L.Ed.2d 11. (N. L. R. B. v. Merchants Police, Inc., 313 F.2d 310, 312 (C.A. 7, 1963).1 32 Resp . br., p. 11. 33 Stubblefield's testimony is viewed as a subreptious attempt to enhance the Respondent's defense. cient in the care of machines some of which were so com- plicated as to require Head Mechanic Kane's attendance at a seminar concerning repair and maintenance of the Reece buttonhole machines. It is clear from the credible evidence that Rios, upon whom Ray claimed he relied for the action taken, had not, by his own admission, observed the work of Esquivel to an extent necessary to have formed a fair opinion as to his work performance. It is doubtful whether Rios and Ray discussed Esquivel's work performance. As noted Rios is not a credited witness nor is Ray a credible witness insofar as his testimony relates to the reason for Esquivel's dis- charge. The absence of Kane as a witness is an additional factor which contributes to a finding that Esquivel's discharge was pretextual. Kane had approved the hire of Esquivel, and had assumed the role of his teacher. Certainly he would have been the ideal witness to have testified as to Esquivel's future worth as an employee to the Respon- dent.34 Accordingly it is concluded that Esquivel was discharged in violation of Section 8(a)(1) and (3) of the Act. J. The Respondent's Grant of Benefits The Respondent's expedited 35 grant of benefits an- nounced December 12, 1973, contemporaneous with the discharge of five employees, activists in employee organi- zation, was the coup de grace administered to arrest any movement of the employees toward the Union. That such was the Respondent's purpose is implicit in the language used by Stubblefield when he emphasized to the employees that since 1966 Respondent's employees had said "no" to unions and in the next breath bade the employees work together with the Respondent so that the "happy news" which he announced could be repeated again . Unmistak- ably "happy news" depended on no union.'No employee could have missed such a clear implication. For its coup de grace the Respondent struck with the "fist inside the velvet glove" 36 and its 8-year record of non- union organization since 1966 in its plants was preserved, at least in the Carrizo Springs plant. In that the Respondent's grant of benefits interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent thereby violated Section 8(a)(1) of the Act. The Respondent's unfair labor practices herein found have furthered its policy "to combat" labor unions in its unorganized plants and gratified its antiunion animus 37 of 34 "The production of weak evidence when strong is available can lead only to the conclusions that the strong would have been adverse . Silence then becomes evidence of the most convincing character." Interstate Circuit. Inc. v. U.S., 306 U.S. 208, 226. See also Threads-Incorporated, 124 NLRB 968, 971 (1959). 35 Provoked by employee dissatisfaction and meetings Stubblefield asked Lipshie to "speed up" and "hurry this thing up a little." 6 See N. L. R. B. v. Exchange Parts Co., 375 U.S. 405 (1964). 37 The Respondent's antiunion animus was clearly demonstrated in this case by its quick action in dismissing Patlan and his wife when it learned of Pedro Patlan's employee organizational efforts . In this regard so anxious was the Respondent to scotch its employees' organizational aspirations that it summarily fired Patlan solely upon the representations of Salgado without allowing Patlan to relate his side of the story. CARRIZO MANUFACTURING CO. 183 long standing; "every equivocal act that was done may be properly viewed in the light of respondent's animus toward the effort to organize its men." N.L.R.B. v. Houston and North Texas Motor Freight Lines, Inc., 193 F.2d 394, 398 (C.A. 5), cert. denied 343 U.S. 934 (1951). As was noted by the Board (92 NLRB 417, 501) the Respondent's unlawful conduct "discloses a fixed purpose to defeat self-organization and its objectives." CONCLUSIONS OF LAW 1. Obreros Unidos Independientes is a labor organiza- tion within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act for jurisdiction to. be exer- cised herein. 3. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed them by Section 7 of the Act, the Respondent engaged in unfair labor practic- es within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Pedro Patlan, Rebecca Patlan, and Jose Sosa on December 10, 1973, Alberto Es- quivel on December It, 1973, and Carlos D. Juarez, Jr., on December 12, 1973, the Respondent engaged in unfair la- bor practices in violation of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take affirmative action de- signed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Pedro Patlan, Rebecca Patlan, Jose Sosa, Al- berto Esquivel, and Carlos D. Juarez, Jr., it is recommend- ed that Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy 38 that the Respondent offer said employees immediate and full rein- statement to their former positions or, if such positions 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 earnings that they may have suffered as a result of the discrimination against them by payment to them of a sum of money equal to the amount they would have earned from the date of their discriminatory discharges to the date of an offer of rein- statement, less net earnings during such period to be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Accordingly, upon the basis of the foregoing findings of 38 See The Rushton Company, 158 NLRB 1730, 1740 (1966). fact, conclusions of law, and the entire record in this pro- ceeding, and pursuant to Section 10(c) of the Act, it is recommended that the Board issue the following: ORDER 39 Respondent Salant Corporation, d/b/a Carrizo Manu- facturing Corporation, Inc., Carrizo Springs, Texas, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities of its employees or membership in the Obreros Unidos Independientes, or any other labor organization, by unlawfully, discriminatorily discharging any of its employees, or by unlawfully discrim- inating in any manner in respect to their hire and tenure of employment or any term or condition of employment in violation of Section 8(a)(1) and (3) of the Act. (b) Unlawfully interrogating its employees regarding their union or concerted activities. (c) Unlawfully granting wage and other employee bene- fits to its employees for the purpose of dissuading its em- ployees from organizing and supporting said Union or en- gaging in concerted activities. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join Obreros Unidos Independientes or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, subject to the union-security requirements of Section 8(a)(3) of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Pedro Patlan, Rebecca Patlan, Jose Sosa, Al- berto Esquivel, and Carlos D. Juarez, Jr., immediate and full reinstatement to their former positions or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges, discharging if necessary any employees hired to re- place them, and make them whole for any loss of pay that they may have suffered by reason of the Respondent's dis- crimination against them in accordance with the recom- mendations set forth in the section of this Decision entitled "Recommended Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its premises at the Salant Corporation d/b/a Carrizo Manufacturing Corporation, Inc., Carrizo Springs, Texas, copies of the attached notice marked "Appen- 39 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102 .48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dix." 40 Copies of said notice , on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by it 40 In the event that this 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." immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director of Region 23, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.