West Point Pepperell

442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mission Valley Mills, a subsidiary of West Point Pep- perell and Southwest Regional Joint Board, Amal- gamated Clothing Workers of America, AFL-CIO. Cases 23-CA-5717, 23-CA-5737, 23-CA-5767, 23-CA-5813, and 23-RC-4277 June 30, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On April 14, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Respondent, the Charg- ing Party, and the General Counsel filed exceptions and supporting briefs. 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 and to adopt his recommended Order, except as modified herein. Contrary to the Administrative Law Judge, we find that the discharge of Leandro Aguirre and the failure to recall Jessie McKee were discriminatorily motivated in violation of Section 8(a)(3) of the Act. Aguirre allegedly was discharged on September 4, 1975, for having received four written disciplinary warnings within a 12-month period, which, under the Respondent's disciplinary system, is cause for dis- charge. Although the Administrative Law Judge found that the Respondent was aware of Aguirre's union activities and that in other instances it had manipulated its warning system as part of a broad pattern of unlawful discrimination, he found the evi- dence insufficient to establish that any of the warn- ings to Aguirre had been discriminatorily motivated. We need not decide whether or not that last conclu- sion is correct, because the record establishes that Aguirre had not received the necessary four warnings within a 12-month period. The Administrative Law Judge found that Aguirre received warnings on June 16 and 28, August 27 (ac- tually August 29), and the last on September 4. Aguirre also received a warning September 21, 1974, within the 12-month period before his discharge, which the Administrative Law Judge does not men- tion. However, neither the June 28 nor the August 29 warning can be relied upon to support the discharge; the June 28 warning, which the Respondent itself did not rely upon, because it had been issued more than 12 months earlier in 1974, and not in 1975, and the August 29 warning because it was not a "warning" within the meaning of the Respondent's disciplinary system. Richard Kawazoe, head of the carding department in which Aguirre worked, testified that the August 29 warning, for safety violations, was not a "warning" within the meaning of the disciplinary system. It was intended only to make Aguirre more conscious of safety and to place him on notice that if he continued unsafe practices he would be subject to a disciplinary warning in the future which would count under the system. Kawazoe's testimony is confirmed by the document itself, which provides that if Aguirre "vio- lates the safety rules again he will be subject to a written warning and disciplinary action will be tak- en." Including the September 21, 1974, warning, Aguir- re had only three warnings when he was discharged; those dated September 21, 1974, June 16, 1975, and September 4, 1975. Kawazoe himself prepared the September 4, 1975, warning, noting it was Aguirre's fourth, and suspended him pending discharge. Thus, Aguirre's discharge was not a mistake made by someone who misinterpreted the August 29 warning, which had been issued by Kawazoe less than a week earlier. Accordingly, as Aguirre's discharge is not supportable on the basis of the Respondent's discipli- nary system, even as a mistake, we find, in light of the Respondent's knowledge of Aguirre's union ac- tivities and its hostility to the Union, that his dis- charge was discriminatorily motivated in violation of Section 8(a)(3) of the Act. We also find that the Respondent refused to recall Jessie McKee from an economic layoff for discrimi- natory reasons. The basic issue, as the Administra- tive Law Judge noted, is whether she was offered, and declined, reinstatement to one of the Respondent's plants in New Braunfels in May. Although frequently discredited elsewhere, in this instance the Administrative Law Judge credited the testimony of Derek Davis, Respondent's personnel director. Davis testified that Jessie McKee was one of 75 or 80 employees to whom he had offered rein- statement in May and June, and, although he kept no records, one of about 30 of the 250 laid-off employ- ees who declined reinstatement. According to Davis, she was willing to accept reinstatement only at the same plant where her husband worked. Jessie McKee testified that she was never offered reinstatement in New Braunfels, the town in which she was working when laid off, but had been called by a secretary during the first week in June and of- fered a job in Mexia, about 135 miles away, which 225 NLRB No. 59 MISSION VALLEY MILLS 443 she declined. In October, she learned that Diana Martinez, who was immediately below her on the se- nority list, had been recalled. McKee tried to call Davis on numerous occasions , but her calls were re- fused. The Board does not normally disturb an Adminis- trative Law Judge's credibility resolutions to the ex- tent they are based on demeanor because the Board has not had an opportunity to observe the witnesses.' However, the Administrative Law Judge did not rely on demeanor in crediting Davis rather than Jessie McKee, but on what he mistakenly believed to be the General Counsel's theory of the case and the facts. The Administrative Law Judge correctly stated that the issue with respect to Jessie McKee was not whether she had been discriminated against because of her own union activities, but rather whether she had been discriminated against because of her husband's union activities. Her husband, Joe McKee, was found to have been discriminatorily discharged in July. Following that line of reasoning, the Admin- istrative Law Judge concluded that he was being asked to find that the Mexia offer was discriminato- rily motivated. Since Jessie McKee testified that the offer was made during the first week in June, and, as her husband had not become active in the Union until some time after June 13, he concluded that at the time of the alleged Mexia offer there was no rea- son for the Respondent to discriminate against her and discredited that testimony. However, there was no contention that the Mexia offer was discriminatorily motivated. Following testi- mony concerning her attempts to secure reinstate- ment in New Braunfels, Jessie McKee was asked whether anyone from the Company had, at any time, contacted her about going back to work. She replied that the only job she had been offered was in Mexia, which she declined because of the distance. Appar- ently, the Administrative Law Judge believed that of- fering a wife and mother a job 135 miles away was absurd and, on that basis, concluded that the Gener- al Counsel was contending that the offer was based on union animus. In fact, there was no such conten- tion, nor was the testimony absurd. Davis himself testified that his secretary had called employees to find out if they were willing to move to Mexia. The Administrative Law Judge also found that Jessie McKee must have known that employees with less seniority were being recalled before October. From that, he reasoned that she had not attempted to contact Davis earlier about reinstatement because she knew she was not entitled to recall. But Jessie 1 Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951) McKee testified that the first employee with less se- niority to be recalled was Diana Martinez, who was reinstated in October, prompting her attempts to speak to Davis. There was no contrary testimony on that point and Davis conceded that he had refused as many as 15 calls from her. There is nothing in Jessie McKee's testimony to provide a basis for discrediting her; indeed, she was partially corroborated by Davis. Conversely, Derek Davis was frequently discredited by the Administra- tive Law Judge. Davis' testimony that Jessie McKee had refused reinstatement was based only on his me- mory of an alleged phone call occurring long before there was any reason for it to have been significant, unsupported by any records. The reinstatement of Martinez, Jessie McKee's immediate junior , in Octo- ber suggests that Jessie McKee had not declined re- instatement in May. If she had, Martinez would have been offered the job McKee had refused. Had she too declined , as Jessie McKee was alleged to have done, then the disparate treatment with respect to reinstatement would nonetheless remain unex- plained. We credit Jessie McKee. The Administrative Law Judge concluded that Da- vis' refusal to accept phone calls from "the wife of a union ringleader who was bringing suit against the Company" is understandable. But those phone calls were made by Jessie McKee in an attempt to secure reinstatement. No matter how understandable, the refusal to reinstate Jessie McKee because of her husband's union activities is nonetheless a violation of Section 8(a)(3) of the Act. Having found, contrary to the Administrative Law Judge, that Leandro Aguirre and Jessie McKee were discriminated against in violation of Section 8(a)(3) of the Act, we shall amend his recommended Order and notice accordingly. 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 herein and hereby orders that the Respondent, Mis- sion Valley Mills, a subsidiary of West Point Peppe- rell, New Braunfels, Texas, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Insert the names "Leandro Aguirre, Jessie Mc- Kee," in paragraph 2(a) immediately following the word "Offer." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held Octo- 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 23 , 1975, in Case 23-RC-4277 be, and it hereby is, set aside, and that Case 23-RC-4277 be, and it hereby is, remanded to the Regional Director for Re- gion 23 for appropriate action pursuant to the Ad- ministrative Law Judge's recommendations, which we hereby adopt. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promulgate, maintain, or en- force a discriminatory no-solicitation rule for the purpose of obstructing the organizational ac- tivities of our employees. WE WILL NOT coercively interrogate our em- ployees concerning their union sympathies and activities. WE WILL NOT promise improvements in eco- nomic benefits for the purpose of inducing our employees to abandon their union activities. WE WILL NOT threaten to impose harsher or more onerous conditions of employment, or to move the plant or to close it, to impede union activities by our employees. WE WILL NOT threaten to lay off or to dis- charge employees because of their union activi- ties. WE WILL NOT invite employees to deal individ- ually and personally with management in order to induce them to abandon their union or con- certed activities. WE WILL NOT discharge or otherwise discrimi- nate against any of our employees to discourage them from engaging in union activities. WE WILL offer Leandro Aguirre, Jessie Mc- Kee, Mary Casarez, Ben Gomez, Joe McKee, and Gaston Brady immediate and full reinstate- ment to their former positions or, if such posi- tions no longer exist, to substantially equivalent positions. WE WILL pay the above-named employees for any loss of earnings they may have lost as a re- sult of our discrimination against them, plus 6- percent interest. WE WILL expunge from the personnel records of the following employees all reference or repri- mands relating to violations of our illegal no- solicitation rule. The employees are as follows: Mary Casarez, Joe Sanchez, Refugio Franko, Ernesto Rodriguez, Rachel Mendez, and Ben Gomez. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to join or assist Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. MISSION VALLEY MILLS, A SUBSIDIARY OF WEST POINT PEPPERELL DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this consolidated proceeding was held at San Antonio, Texas, on January 26, 27, 28, and 29, 1976. The complaint in Cases 23-CA-5717, 23-CA-5737 and 23-CA-5767 is- sued on November 10, 1975, against Mission Valley Mills, a subsidiary of West Point Pepperell, here called the Re- spondent or the Employer, on charges filed on August 21 and September 2 and 24, 1975, by Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union. The complaint in Case 23-CA-5813 issued on December 12, 1975, against the same Responde.,:, based on a charge filed on October 23, 1975, by the same Union. In Case 23-RC-4277, a Board- conducted election was held on October 23, 1975; the Union filed objections to conduct allegedly affecting the results of the election. The Regional Director directed a hearing on the objections. All cases were consolidated for single hearing. The issues to be decided are whether the Respondent violated Section 8(a)(1) and (3) of the Act, and whether it engaged in conduct which improperly interfered with the election. Briefs were filed by the General Counsel, the Respondent, and the Union. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation organized under the laws of the State of Texas and has its principal office and place of business in New Braunfels, Texas, where it is en- gaged in the manufacture and sale of textile products. Dur- ing the past 12 months, a representative period, it sold and delivered goods valued in excess of $50,000 to customers located outside the State of Texas, and said goods were shipped directly from Respondent's Texas facility to points outside the State. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. MISSION VALLEY MILLS 445 II. THE LABOR ORGANIZATION INVOLVED mental operation of the management agent who dismissed I find that Southwest Regional Joint Board, Amalgamat- ed Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. A Picture of the Case The Union started an organizational drive among the approximately 1,400 rank-and-file employees in the Respondent's two mills located in New Braunfels about April or May 1975. It filed an election petition in Case 23- RC-4277 on August 21, 1975, and, pursuant to a consent election agreement, the Board conducted an election on October 23. The Union lost by a vote of more than 3 to 1 and then filed objections to conduct by the Respondent for having improperly interfered with the voting. While this was going on a number of unfair labor practice charges were filed saying the Respondent had retaliated against the employees in a number of ways-straight discharges, sus- pensions, intimidating reprimands, and coercive statements of all kinds. Two complaints were issued and some amend- ments were made to them at the start of the hearing. As to the Union's objections the Regional Director, after an in- vestigation, directed a hearing. Because many of the objec- tions parallel allegations of misconduct set out in the com- plaints, he joined the representation and unfair labor practice cases for single hearing. In its answer the Respon- dent denies the commission of any unfair labor practices. B. Counsehngs, Warnings, Reprimands, and Writeups There is an unusual facet to this case that requires pre- liminary comment in explanation of both the events and this Decision. In one sense the story compares with much precedent. The Respondent unlawfully questioned its em- ployees before the election, threatened them with economic reprisal, and sometimes promised them better conditions of employment, all for the purpose of influencing them to vote against the Union, and in a number of other detailed ways coerced them in the matter. This sort of conduct, in which a great many supervisors at all levels participated, was violative of Section 8(a)(1) of the Act. The Respondent also discharged a number of employees-I think in all in- stances known unioneers-both before and after the elec- tion. These are "discriminations" in employment and are called illegal under Section 8(a)(3). As in all discharge cases the complaint simply charges that the Respondent dismissed these people because of their union activities, for the purpose of restraint or retaliation. But unlike the more usual situation, the Respondent does not always assert, in affirmative defense, that this man or that was discharged because of his particular act of incompetence, misconduct, or other specific failing meriting dismissal. Rather, it shifts the burden of justification for dismissal to what it asserts was an established system of warnings, reprimands, and, with numerical count, eventual predictable discipline and discharge. According to the Respondent-at least part of the time its witnesses talked-it was the system and not the a man which was really to blame if a man lost his job. An example will illustrate the point. Ben Gomez was given four written warnings, or writeups, for various fail- ings on the job: The first on May 20 for leaving work early, the second on May 28 for inefficiency, the third for union solicitation, and the last for not wearing his protective ear- plugs on the job. The Respondent says Gomez was not discharged because he did not wear the earplugs but be- cause he had been reprimanded four times, and a company rule requires he be dismissed for that latter reason. The General Counsel's response to this is set out below; but for the moment it is important to set this basic contention of the Respondent in proper perspective, because it is urged with respect to a number of the discharges involved in the case. There is an employee handbook which first lists precisely 11 offenses which can bring written warnings, and then says if a man gets 3 such warnings within 12 months he shall be discharged. The fatal number must have been raised to four, for all the witnesses, including all the super- visors, said it is four. A fourth minor offense-failure to wear hearing protection-calls for discharge on the fourth offense, still according to the handbook. The handbook also lists, again very precisely, 13 other offenses, which are designated "intolerable" offenses and can bring immediate discharge the first time committed. There is a conflict be- tween these clearly written rules and the very confusing and ambiguous references to them by most of the witness- es, both employees and management agents. They spoke of countless warnings, reprimands, counselings-some re- corded and filed and some not, some written and some not, and some considered numerical warnings under the code at one time but later struck from a file because not deemed of sufficient importance. Indeed, after a general reading of the testimony about warnings and verbal counseling inter- views of over 30 witnesses, it is really not possible to find there existed any predictable and fixed rule an employee could rely on. Again and again the supervisors recalled how this em- ployee or that had been talked to about one failure or an- other but not given any reprimand. They called these "counselings" outside the "four and out" rule. From this it seems clear the supervisors suited their fancies instead of pursuing any established practice. Two of the critical dis- charges at issue are defended on the ground that the men were caught sleeping on the job. There was no attempt to justify the summary dismissal of these two on the grounds of the "four warnings and out" rule set out in the hand- book. But the book unequivocally says "sleeping on the job" is only one of the minor infractions, and a man is entitled to three warnings before a fourth offense can en- danger his job. The top agents who decided to send these men home just called the offense "intolerable," as though the handbook did not exist. At other points in their testi- mony they justified dismissals or disciplinary layoffs strict- ly by objective reliance upon the same handbook! This business of the Respondent "manipulating" the rep- rimand system, as the General Counsel correctly says in his brief, sometimes to achieve an improper objective, either by firing people or intimidating them via the ostensible 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "handbook system" route, is a significant aspect of the whole case. This blurring of the handbook rule was further achieved by repeated statements of the supervisors that some warnings were not really warnings or reprimands, but only counselings or verbal advice. They again and again used these words so interchangeably that it is not possible to summarize their testimony clearly. They even said that some reprimands, the written ones, were actually placed in employee files, but later, after reconsideration by manage- ment, were deemed not to have been reprimands pursuant to the rules, albeit the employees were not always told of this with the same formal technique with which they nor- mally were asked to sign reprimands. If the record is to be appraised in its totality, the truth of the matter is the rule was the rule when management thought it should be the rule, but not otherwise. Fairness requires, however, that another aspect of the total record, also made inevitable by the practice of warn- ings or reprimands, must also be kept in mind. The rule may have been applied with an uneven hand, but it is true there were rules of conduct, the employees knew about them, and reprimands and suspensions were given, as well as discharges, based on repeated violations. There is not, and there hardly could be, any contention that none of the reprimands given was deserved. There is no need to restate here the old principle that union activity by an employee cannot serve to insulate him from proper discipline or set him apart from all others in the line of work duty. The essential theory of this complaint is that in a number of instances-enumerated in the pleadings-the Respondent issued the reprimands not because of any misbehavior or inadequate work performance, but to curb the prounion activity of the particular employee. In consequence, the record is replete with unending details of one warning or reprimand incident after another, not only those involving union activities-such as soliciting signatures to union cards-but also many touching upon work competence. And because this matter of criticism of employees per- meates the case, the nature of man in his environment, or of the worker vis-a-vis his boss situation, is starkly revealed on every page of the transcript. It is a rare worker who after the event will not insist he did not merit censure, his work was satisfactory, he did arrive on time, etc. It is to be expected he will give such a recital of the incident as to place himself in a more favorable light. No less suspect is the story of the overseer, the supervisor, or the manager; he will tend to justify his past conduct in issuing the repn- mands and he will normally tend to put the employee in a poorer light in order to draw a more aggravated picture of the man's past performance. From this it follows that all the testimony in this case about counselings, warnings, and reprimands-whatever they be called-and the details of the events tied to each one, must be taken with a grain of salt. I do not believe the story of any one man about any single incident-when contradicted by his opposing count- erpart-can be taken at face value. And because this, like any other Board case, is con- cerned with union activities, the relationship between the Respondent's "rule" or "past practice" with respect to "so- licitation," and those reprimands issued in consequence of ment now. A number of reprimands were given for such solicitation, real or fancied, and as to these too in some instances there was disagreement at the hearing between employee and supervisor as to whether the worker did or did not commit the alleged offense charged at the time. But unlike all those incidents bearing no relationship to union activity, those which touch upon the asserted "no solicita- tion rule" fall in a special category. The fact is the Compa- ny permitted all kinds of solicitation throughout the mills dunng working hours; clearly the nature of the work in many situations permitted the employees, without preju- dicing their output, to talk about anything-football chances in a football pool, the selling of Avon Products or Tupperware, and even the food to be consumed in the plant. There is even proof that employees were permitted, during working hours inside the plant, to carry on an an- tiunion campaign. With this, it follows there was no defen- sible rule against talking at work or against soliciting other employees about anything while people were supposed to be operating the machines or doing whatever they were paid to do. But such disparate treatment of union-minded employees-such discriminatory application of what is as- serted to be an impartial stricture upon everybody solely in the interest of production efficiency-is the clearest proof of an overall program to deny employees the right to self- organization guaranteed them by law. In these circum- stances, issuance of reprimands for union solicitation- even assuming in some cases the employees did solicit dur- ing working hours-was in itself an unfair labor practice. I therefore deem it unimportant to decide precisely when the solicitation occurred, or whose versions of the particular incident-the employees' or the supervisors'-is the more reliable. I will find that in every instance when an employ- ee was issued a warning for union solicitation, the Respon- dent committed an unfair labor practice. C. Discriminatory Rule Prohibiting Union Solicitation. Violations of Section 8(a)(1) Although what is generally permitted and what takes place in the area of solicitation inside this plant by no means conforms with the so-called rule as printed in the handbook, even as there stated, the rule on its face is too stringent to satisfy Board law as to the rights of employees to carry on self-organizational activities. They have a right-absent unusual conditions neither proven nor claimed in this case-on their own time and in nonwork areas, such as relaxation rooms and cafeterias, to discuss their union affairs. Lester, vice president of production, defined the rule as: "Solicitations can't be made on the premises without specific permission of management." He made no exception of any nonwork areas anywhere. The Labor Relations Director, Thompson, testified: "it [union solicitation] is generally prohibited without permission of the supervisor or mill manager...." I conceded or only alleged union solicitation , merit com- 1 Pepsi-Cola Boating Co of Los Angeles. 211 NLRB 870 (1974) MISSION VALLEY MILLS 447 But it is not necessary here to make such a broad finding because clearly whatever measures were taken to curb so- licitation were aimed almost exclusively towards the union activities while other kinds of solicitation were ignored. The testimony of one employee after another proving this stands practically uncontradicted. Thus: (1) Casarez said she saw employees, only a month before the October elec- tion, solicit punch board chances and collect money for the community fund. She even testified Tunnel, a high supervi- sor, sold rodeo tickets on the job right in the department and asked rank-and-file employees to help him sell them. (2) Ernesto Rodriguez recalled employees selling, while at work, chances in a football pool, and raising collections to buy flowers for a sick manager . (3) Sanchez said orders for food were taken right at the machines, money collected, and the lunches then delivered, while people worked, for consumption later at lunch. (4) Machuca took orders for tamales and delivered them. He said, and no one contra- dicted him, Supervisor Cantu was one of the customers. (5) A number of employees, Mendez among them, testified jewelry, Avon Products, Tupperware, raffle tickets, etc., were sold without restriction while supervisors looked on and participated. More significant, of course, is proof of antiunion solici- tation in which supervisors participated. Casarez said Dun- can, her supervisor, distributed literature at work telling the story of the Farah Company and its labor problems. Tunnel supervises 130 persons on three shifts, and several lower supervisors, including Duncan. Casarez said Tunnel himself handed her one of the antiunion leaflets and said "to think before I did anything else, and to try to keep my job and his." Testifying after Casarez, Tunnel did not deny this. "Did you ever hand out literature to employees? A. Yes sir." "When you handed out literature to the employ- ees, was this during working time? A. Yes." Both E. Rodri- guez and V. Rodriguez also testified, and neither was con- tradicted, that supervisors gave each of them antiunion literature at work. E. Rodriguez brought one to the hear- ing, the one Tunnel had given him. It is a printed flyer- maybe 12 by 24 inches-printed on both sides and detail- ing the disadvantages of unionism. Also uncontradicted, Franko recalled, is the fact that Supervisor Costilla distrib- uted "NO" buttons in the plant a week before the election. It is not necessary to add more from the record here. Lester, the vice president, speaking in defense, said he only arrived at this plant in 1973 and tried to improve matters, but that rule observance could not be achieved "over night." "We have not completed that program, we have restricted some activities...." His testimony is tanta- mount to admission that many forms of solicitation are still permitted, and that it was prounion solicitation the Com- pany was curbing in 1975. Supervisor Tunnel, while deny- ing none of the foregoing testimony, explained less was permitted than before. "There used to be a whole lot more than there is now." I find, as alleged in the complaint, that the Respondent discriminatonly applied a no-solicitation and no-distnbu- tion policy by permitting antiunion employees to solicit and distribute their propaganda, while denying equal treat- ment to prounion employees, and thereby violated Section 8(a)(1) of the Act. Alberts, Inc., 213 NLRB 686 (1974). D. Coercive Application of the Illegal No-Solicitation Rule-Violations of Section 8(a)(1) and (3) 1. Casarez worked the second shift which ended at mid- night; she said she talked to another employee, and ob- tained a signed card less than 10 minutes before quitting time as the employees were cleaning up to go home. Tun- nel gave her a written reprimand for it . This was a month after Tunnel had given her the antiunion literature with the admonition she should "think" and "try to keep her job." Given the disparate rule, I find issuance of this formal writ- ten reprimand was a violation of Section 8(a)(1) of the Act. Also, with the supervisors repeatedly reminding the em- ployees, when such warnings were issued, that the fourth warning meant discharge , I find the issuance of the warn- ing was also a violation of Section 8(a)(3). 2. Tunnel also gave a warning "for solicitation" to Jose Sanchez 3 weeks before the election. According to San- chez, Tunnel said it was for "soliciting for the union, parts of the union." Tunnel's version is he called the man into his office to discuss a problem of gears on the employee's machine, and, when that matter was taken care of, said "he was soliciting on the job, and that I was going to write him up for it." Tunnel said the soliciting involved a football pot. I credit Sanchez, and find issuance of this solicitation warning was a further violation of Section 8(a)(1) and (3). 3. Franko was a fixer for 6 years. On August 21 Tunnel called him into the office to say he was being reprimanded for asking employees to sign union cards and for harassing them. Franko denied any harassment and asked who had so reported him. Tunnel refused to say. The reprimand notice Franko was asked to sign, according to his uncon- tradicted testimony, said nothing about harassment; it said only "soliciting for the union." It was not produced at the hearing. I find the reprimand was a violation of Section 8(a)(1) and (3). 4. Among the reprimands given to E. Rodriguez was one assertedly for "threatening people," and one for straight solicitation of union signatures. The unlawful and coercive intent in these appears especially clearly in the employee's further testimony of other talks with supervisors. He testi- fied that when giving him the first warning, Birdsong, the plant manager of one of the mills, said he knew Rodriguez was "for the Union," but would not stand for any threats. When Rodriguez asked who was it that had reported threats by him, the manager refused to say, and then, still according to Rodriguez' testimony: "Thompson put the union down and said they were just troublemakers, that he was going to do everything in his power to keep them out." Birdsong talked to Rodriguez in his office for 1-1/2 hours that day on this one subject; the employee denied threaten- ing anyone. Birdsong did not appear at the hearing. Tunnel issued the other solicitation reprimand. Rodriguez testified about another talk he had with Tunnel. On September 12 Tunnel asked him: "What can the union give you that we can't?" He also asked had he talked with his wife about the matter, and then added, "Talk to her, and if you change your mind about the union or something of that nature, come to me, and I'll take care of it." Rodriguez, during the conversation, mentioned the fact that he was interested in better conditions of employment, including better insur- 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance, and Tunnel said to him "there was going to be better insurance and retirement....Things are going to change." On one day in October Tunnel was distributing antiunion literature in the plant and gave a leaflet to Ro- driguez, who quoted the supervisor as follows: ". . . that he knew I was making a mistake, . . . I was making a mistake by going union. And he said, `Do me a favor' .. . `Go talk to Russell Lester [the vice president], talk things over, and he can probably change your mind.' " Rodriguez refused the invitation. As already stated, Tunnel admitted distributing literature in the plant; he also admitted telling Rodriguez he should talk to his wife and he should "think real seriously . . . that everything would increase . . . that there'd be increases given." By his promises of increased benefits,. by his implied threat to Rodriguez-that he should "think seriously" and talk it over with the vice pres- ident-and by his interrogation of the man, Tunnel repeat- edly violated Section 8(a)(1) and by the two reprimands issued to E. Rodriguez for union solicitation , again the Re- spondent violated Section 8(a)(1) and (3) of the Act. 5. Rachel Mendez worked 9 years and never once re- ceived a written reprimand. She was overtly very active for the Union throughout the campaign. She testified that on August 6 she went to a union meeting; on August 7 Tunnel gave her a written warning for soliciting in favor of the Union; on August 8 she told Davis, the personnel director, of Tunnel's action, and Davis said to her, "Well, you were at that union meeting, and you're very close friends with someone very much involved in the Union." ". .. He was very disappointed that I even considered going to the union meeting, that he was very much against the union and that he hoped that I would feel the same way." When Mendez repeated she would persist in her union activities, Davis said "that I better think about it because if he found out later that I had lied to him, he was going to come back-he was going to do something about it, because eventually he was going to get everybody." Mendez also recalled a meeting with Davis in his office early in May, following another union meeting. As she tes- tified, Davis said "he was calling in a few trusted employ- ees, and he wanted to show me that the Union had had strikes, and that they were violent." According to Mendez, Davis also told her that day "it doesn't take too much time to set up a building somewhere else, and it-How much would it cost to move all of the equipment, that they could set up, you know, shop anywhere else." Davis denied saying he would eventually discharge any- one for union activity, or ever discussing the Union with Mendez in May. He did recall that sometime in September she came to him to suggest rotating certain spare hands, and that as they talked she told him she had filed charges against him-apparently unfair labor practice charges. Da- vis quoted himself as saying: "I can't make any promises I can make suggestions, if you think rotating the spare hands is a good idea . . . You see how much we can ac- complish by working together? If you think you can get more done by talking for yourself or by having someone talk for you." Davis also denied any threats about closing or moving the plant. Where Davis contradicted Mendez, I credited the em- ployee. I find the solicitation reprimand issued to Mendez by Tunnel was a violation of Section 8(a)(1) and (3). I also find that in May Davis threatened that the Respondent would move the plant elsewhere if the employees wished to be represented by the Union, that in August he threatened to discharge employees who favored the Union, and that in September he told her the desires of the employees would be better achieved by direct dealing with the Respondent than through the Umon, in each instance violating Section 8(a)(1). E. Discharges 1. Casarez Casarez was discharged on December 8, 1975, and the story about her release best illustrates the Respondent's defense based on asserted automatic application of the rule of "four reprimands and out." There clearly was nothing automatic about it at all; rather, the testimony of three management agents in this one instance-Thompson, the personnel director, Tunnel, a high supervisor, and Duncan, her immediate supervisor-proves there was no predictable rule and that management did as it pleased in any given case, considering evaluations that are nowhere objectively stated on the record. The employee remembered having been criticized, and "warned," five times: (1) in December 1974 for absenteeism; (2) in July 1975 for refusing a certain assignment ; (3) in September for union solicitation; (4) again in September for reading a letter 5 minutes before quitting time while at her work station; and (5) early in December for absenteeism (she had been absent 1 day the previous Friday), when she was discharged. She said that for the fourth reprimand-for reading at work-she was given a 3-day layoff, and that when she returned she was told she could have theJob but without backpay, and that the reprimand was being removed from her file. If there were a rule, as the handbook says, she should have been dismissed with finality that day. This is one of the instances that caused Thompson, the personnel director, to explain how a committee higher up in management evaluates the offense which leads to a rep- rimand and to decide , in specific instances , what weight to give to it But if there must be separate appraisal by man- agement when a fourth reprimand is issued, it means there is no rule. Thompson said that in this case, after pondering whether this fourth offense merited a 3-day layoff or dis- charge, the Company decided the offense did not merit "the full weight of the rule." Tunnel's version of the committee action is that "it was thrown out and disregarded ... I, and the Personnel De- partment, and the Mill Manager, Mr. Birdsong, decided that it wasn't a big enough offense to warrant that kind of warning." Duncan, the immediate supervisor, who saw her reading that day, testified: "Q. Was this warning counted towards her record? A. No, sir." We come to the question of why was she discharged in December? The Respondent says a reprimand for a day's absence in itself is not reason for discharge-it is the "rule" of "four reprimands and out" that did this to Casarez. But the testimony of a couple of witnesses gives the lie to this assertion , for according to management she had four repri- mands by September. There is no avoiding the conclusion, MISSION VALLEY MILLS 449 on this total record, that this lady was not discharged be- cause of any rule. She was a known umoneer, she was crit- icized by the Company for union solicitation, and the rec- ord is full of evidence of repeated violations of Section 8(a)(1), and I therefore conclude Casarez was discharged because of her prounion attitude. Were I to appraise her discharge in terms of the handbook rule, it would still be a fact she only had three reprimands against her in Decem- ber, because the solicitation warning, illegal in itself, can- not be counted, and because the supervisors themselves removed the September one from her file. I find that by discharging Casarez the Respondent violated Section 8(a)(3) of the Act. 2. Ben Gomez Ben Gomez was one of the earliest and most active sup- porters of the union movement; Birdsong saw him hand- billing outside the plant. Gomez could remember only one reprimand before these events during the 8 years he worked for the Company. On May 19 he started wearing a union button; the next day he was given what the Respon- dent at the hearing called his first of four warnings-leav- ing his work station too soon. Eight days later he received a second, for low production. Within a week, on June 3, Birdsong called him into his office and gave him a third, according to the uncontradicted testimony of Gomez, for "threatening people, inside mail [Mill], getting them to sign those union cards." He denied threatening anyone but Birdsong ignored his protest. He was required to wear ear- plugs at work. Although having trouble with an ear infec- tion he wore them all morning on August 1; he did not have them on after lunch and within 5 nunutes Tunnel called him in for a reprimand, and he was then and there discharged. Considering the widespread coercive campaign against the union activity then being carried on by a number of management agents, Birdsong's facile joinder of the word "threaten" with the phrase "union solicitation" cannot serve to remove the June reprimand from the area of 8(a)(1) violations. Gomez denied threatening anyone, and I believe him; Birdsong did not testify and he did nothing at the time of the event to prove otherwise. Assuming the earplug incident reprimand was issued on the merits, it was only the third valid reprimand under the rule. Tunnel ex- plicitly admitted that offense alone was not cause for dis- charge. Moreover, there is evidence of any number of other employees not using earplugs at times and not being for- mally written up, or only being told, by what the Company called "verbal counselings," to put them on. I find that Ben Gomez was discharged because of his union activity and that the Respondent thereby violated Section 8(a)(3) of the Act. 3. McKee and Brady McKee worked over 12 years as an electrician repair- man, always in his shop downstairs on call into any depart- ment as needed. He was on the night shift on July 22, having coffee in his shop at 6:30 a.m., waiting for the next call. He fell asleep. Next door to him was the boilerroom, where Brady, the boilerman, was on duty. Brady had been with the Company over 30 years, his last stint continuous for 15 years. He fell asleep too that morning. Nance, the shift superintendent, happened to pass by and saw them. He looked at them, apparently unworried, and then, as he testified, it was necessary to have a second man witness the dereliction from duty, he went to call Cantu, a shift super- visor. When they returned Brady was up and about, but McKee was still asleep, and they awakened him. Cantu told hun he should not sleep-"You don't make a habit of it, do you?" McKee said no. At 5 minutes before 8 o'clock (quitting time) both men were called to the office of Pape, the plant engineer, given a writeup reprimand, and told they were being suspended for 3 days. It will be recalled the handbook rule says "sleeping on the job" is one of the minor offenses which call for a repri- mand, the third such warning bringing a 3-day layoff, and the fourth discharge. Pape ignored the handbook then and there with respect to Brady, for the man said, and the Re- spondent does not suggest otherwise, that in all his years with the Company he had never once been given a written warning or reprimand of any kind. This, to say nothing of the fact that he said, and again more than one supervisor agreed with him, that he had fallen asleep on other occa- sions with no more than a prodding from supervisors. As to McKee, he testified that while he had been spoken to about falling asleep in his truck on an earlier occasion, he had never once been told that a warning or reprimand had been placed in his file according to the handbook. What is more important is that even according to the claims of the Respondent, but not proven by any records, McKee had been given two warnings, this was his third, and not his fourth. At 11:30 a.m. that same morning Pape called the men at home to tell them they were temporarily discharged. Ac- cording to McKee's testimony, Pape said "There had been a meeting and . . . I was temporarily laid off until they could consult with their home office and find out what to do about my situation." Pape's story is that after issuing the reprimand, he received a call that morning from Plant Manager Hayes, who said he had received a "written re- port" from Nance as to what had happened, and called Pape to his office where the two of them discussed the matter. Pape continued that there was a committee meet- ing on the subject the next day. Two days after the sleeping incident Pape called McKee again and said "You're auto- matically dismissed." When McKee complained of being "railroaded out," Pape answered, "My hands are tied .. . talk to Mr. Lester and Mr. Thompson . . . Lester is the one that's doing it." In his testimony Lester said the matter was decided in committee with himself, Jim Hayes, the plant manager, Pape, the superintendent, Thompson, director of labor relations, and Derek Davis, plant personnel director. This means that because of two men asleep on a single occasion-a minor lapse specifically provided for in the published rules of conduct-one meeting after another was held by higher echelons of management. The apt biblical word is magilla. In the effort to justify their disregard of the plain handbook rule, the Respondent's witnesses spoke of the importance of keeping an eye on the boiler and because of the danger of possible 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explosion. If the fact of it being the boiler room was what counted, it was a simple fact right along and hardly needed all the further investigation and talk that followed. But whatever they may have thought about the boiler had nothing to do with McKee. He was just waiting for the next service call, and his being asleep fitted exactly into the plain language of the handbook rule. The truth of the mat- ter, therefore, is that the men were not discharged for sleeping. I do not credit the asserted affirmative explana- tion. But there had to be a reason for such extraordinary action against these men. Both men were active in the Union and went to many meetings. About a month before the discharge Knox, the president of the Company, who had known Brady for 35 years, appeared at the driveway near the boiler room early in the morning and at a change of shift talked to him. "[H]e told me that he thought that-was a union activity going on, and he thought he and I could `nip it in the bud' . . . I thought it was a pretty good idea, and I told him so ... . Everybody went to work but Knox kept after Brady. "[H]e asked me what I thought was so good about it, and I told him that, well, I thought we needed some representation because I had already been over talking to these people .... He told me his door was always opened, and some- where in it, I mentioned about truth . . .." By June 25 McKee had been wearing a union button for 10 days. Knox called him into the office, where McKee had never been before, for a chat. From McKee's testimo- ny: "[Knox] said he would like to talk to me and to get to know me a little better. . . . He knew my mother and dad- dy . . . the future of Mission Valley Mills looked better at that time than it had ever looked before; the future for employees looked better ...." Knox kept McKee in his office almost 2 hours and then said he would like him to talk to Lester "a good man ... to get to know him." As directed, McKee was in Lester's office 3 days later. Again from his testimony: "For about the first two hours, he did most of the talking, and I tried to do most of the listening .... He asked me what I felt about the union, why I was interested in them. I told him I wanted a union so we could have rules to fit everyone and negotiating power. He told me that the union was trying to `sell me a bill of goods' that they didn't have. . . . He asked me if the Union had promised me anything. I told him no. He asked me if they promised to make me a shop stewardess [sic]. I told him no." "Q. Do you remember who brought up the subject of the union first? A. Yes sir. Mr. Lester-he made the state- ment he noticed I was wearing a union button." "He said we didn't need a union to settle that, and if there was any problems, his door was always open, that I could come to talk to him, and he would set down and talk to me and try to straighten out any problems I might have . . . . When I told him the way I felt, he said he wished I didn't feel that way. He wished I was on his side and the mill side." Mc- Kee had never been in Lester's office before either, but the president kept him there 3 hours that day. Knox did not testify. Lester said he held 175 to 200 meetings with employees over a 6-month period before the election. He denied telling McKee he saw the union but- ton, or asking why he wanted a union. He was not a reli- able witness. He had difficulty admitting his purpose was to swing the votes against the Union. "Q. Were you at- tempting to persuade these employees at the time you were conducting these meetings not to vote for the Union? A. I wanted to present to them facts and my personal experi- ence with unions, so that they could make their own deci- sion." He admitted relating to McKee his experiences with unions, how the Respondent treated its employees, and that he knew the man favored the Union. When the vice president of manufacturing, in charge of 1,400 employees, spends 3 hours closeted in his office trying to dissuade one of the leading advocates of the Union, he is doing more than trying to get better acquainted. He is interrogating him and promising improved conditions, exactly as McKee testified. I credit the employee against him and find that by questioning McKee about his union attitude and by invit- ing him to deal directly with management to achieve his economic desires, Lester violated Section 8(a)(1). I also find that by questioning Brady about his reasons for assist- ing the union campaign and by inviting him to bring his grievances individually to the Company instead of adher- ing to the Union campaign, Knox violated Section 8(a)(1). Neither Brady nor McKee changed his attitude, or moved to help the Company nip the union movement in the bud. The conclusion is inescapable and I find that both men were discharged in total disregard of the rule condi- tions of employment in order to put an end to their assis- tance to the Union, in each case a violation of Section 8(a)(3). 4. Leandro Aguirre In this one case the four written warnings, said to have provoked the discharge, were placed in evidence, and none concerns union activities or union solicitation incidents. And, as is to be expected, the employee disputed the cor- rectness of almost every one of the past criticisms. To hear him tell it now, he did not deserve the reprimands at all. He, too, was an open advocate of the Union, went to meet- ings, and succeeded in obtaining signatures to a number of union cards, and the Respondent does not really dispute knowledge of his attitude. But, to revert to the beginning of this Decision, an employer still has a right to enforce prop- er rules of conduct, union activities or no union activities by its employees. Aguirre was discharged upon his fourth written reprimand, and the General Counsel takes three of them, including the last, and alleges they were given be- cause the employee "joined or assisted the Union." This means each of the three incidents should be examined-in the light of the total evidence relating to it-to answer the question of whether the General Counsel has proved, by convincing, affirmative evidence, that that one reprimand was given not for the reasons stated at the time, but to satisfy a hidden, illegal motive. It is as though each of the incidents was presented as a separate violation of Section 8(a)(3)-unlawful discrimination in employment. On this total record, I cannot make such a positive finding with respect to any one of them, and must therefore dismiss the complaints with respect to the discharge of this man. This does not mean I accept at face value and literally the ver- sions of the several incidents as related by the supervisors who issued the reprimands. What it means is that the Gen- MISSION VALLEY MILLS 451 eral Counsel has not proved, by a preponderance of the substantial evidence on the record as a whole, that unfair labor practices were committed via issuance of the repri- mands. The first was issued on June 16, 1975, for arriving late at work. A light flashes in the department at 8 a.m. and the employees are supposed to be at their stations then. The story is that on arrival Aguirre stopped in front of the en- trance to talk to Joan Suarez, a union organizer who was distributing literature. He said he did stop to talk to her, but according to him the light had not yet flashed when he entered the building. Richard Kawazoe, head of the de- partment, swore at the hearing the light had flashed and that Aguirre was therefore late. Had the light gone on? If I weigh one story against the other, I can only conclude the affirmative burden of proving in favor of the complaint has not been carried. And the fact it was a union organizer he talked to outside does not of itself make a liar of Kawazoe, unless there be a presumption that because the Respondent was opposed to the Union, and in the past committed cer- tain unfair labor practices, anything its agents says must be discredited. The second reprimand was issued on June 28, for unex- cused absences, and its propriety is not questioned. On August 27 Aguirre received a written warning for having too many accidents with his machine. Kawazoe, the supervisor, testified the man had had six accidents in 1 year because of mistakes in handling the machine and for disregarding safety rules, several times even hurting him- self and losing time from work. Aguirre admitted at the hearing he had had "five or six" accidents. There is simply no evidence associated with this reprimand tending to indi- cate it was given for any other reason. The fourth, and last reprimand, is dated September 4, and this is when Aguirre was discharged. He was due back at work from lunch at 12:20 but his machine was still stopped at 12:32. Aguirre admitted that when he returned from lunch he just chatted with others in the smoking room "up still 12:30," and added that when Moleno, his supervi- sor, said his machine was stopped he just came back with "I was taking it easy." There is no point in repeating the many other evidentiary details of how he then got into an argument with Moleno, calling the criticisms of his perfor- mance "a whole bunch of stuff," and accusing manage- ment of disliking him because of his union activity only to have Moleno deny it. At the hearing he admitted he was late for work and again there is nothing pointing to any other reason for the reprimands or the discharge. I shall recommend dismissal of the complaint with re- spect to Aguirre. 5. Jessie McKee Jessie McKee, once a spinner employed at the Iselin plant, is the wife of Joe McKee, the electrical maintenance man who was illegally discharged on July 22. She was laid off in an economic reduction in force in January of 1975. The complaint alleges that "on or about October 9" the Company refused to recall her to work because of her union activity. As always the principal question is whether, in the light of all the evidence that was brought out con- cerning her, it can be said affirmatively that the reason why she never came back was a direct intent by the Respondent to hurt her, and for the alleged improper motive. There is also presented a critical credibility question between her and Davis, of the personnel department. He testified that when people were being recalled in May, according to se- niority, he called her and offered her work in the main plant, also in New Braunfels, but about a mile distant from the Iselin plant, where her husband worked and where she had worked, but that she refused the offer. With this, ac- cording to Davis, her name was removed from the recall or seniority list. Mrs. McKee denied ever receiving such a call. According to her, an office secretary called her "the first week in June" and offered her a_Job in another mill of the Respondent in Mexia, a town 135 miles away from New Braunfels. Considering all relevant factors, I cannot accept the lady's testimony that in the beginning of June she was of- fered, by an unnamed office girl, a job 135 miles away. There is no evidence, nor indeed claim, that at that time any one in the Company knew of her attendance at union meetings. She had long been away from the plant. The real contention here is that the Company well knew of her husband's activity and, one must assume-as the Union argues in its brief-that it hit back at her to curb her hus- band by offering her an impossible alternative. But Joe McKee said he first joined the union committee on June 13, and first started wearing a union button June 14. If his wife is to be believed, the Mexia suggestion came before that. Why should any one in the front office come up with such an idea absent any knowledge of union activity in the McKee farruly? We come to her denial of Davis' testimony that in May he offered her work in the main mill. It is clear the Company was recalling people all over the lot-in the hundreds. Mrs. McKee certainly knew this. She said she made no effort to communicate with the Company be- tween the January layoff and some time in October. If she really believed she was still entitled to recall rights, and if she knew-as she must have known-that others junior to herself were being recalled, why did she wait so long to do anything about it? There are other facts that merit some consideration. Her husband worked at Iselin and it was surely more convenient for her to work there. She could well have refused the recall for that reason. Also, she was receiving unemployment benefits, in fact right on through to the end of the year. All things considered I credit Davis on this point also and find she was regularly recalled ac- cording to seniority but cut herself off by refusing to re- turn. Finally, Mrs. McKee said she called to talk to Davis on the phone 10 or 15 times in October but never succeeded in getting him. He remembered these calls and admitted not talking to her. By this time the husband had been dis- charged-for union activity, as it now develops-and a charge had been filed against the Company on his behalf on August 21. Moreover, two later charges had also been filed on September 2 and 24, naming several other individ- uals as having been unlawfully dismissed. If the personnel man thought it best after this not to talk to the wife of a union ringleader who was bringing suit against the Com- pany, the attitude is understandable. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I shall recommend dismissal of the complaint with re- spect to Jessie McKee. 6. Juan Ortiz As alleged in the complaint, and as contended by the General Counsel at the hearing, the unfair labor practice committed by the Respondent with respect to this man was its action in refusing to give him a job after he had volun- tarily quit and later offered to return to work. He left the Company on about May 28, following issuance of a third filed reprimand, which resulted from the fact he changed shift assignment with another man without advance per- mission by, or notice to, his superiors. This particular repri- mand is also one of those specified in the bill of particulars as having been illegally motivated altogether. It is quite a question whether this reprimand was really issued with malice . What is clear is that Ortiz told the Company he wanted to quit, regularly signed a resignation form, and walked out of the place. He got into quite a hassle with his supervisors that day, spoke offensively, and misbehaved. Maybe this is why the General Counsel's brief argues a different theory; now it claims he was constructively dis- charged. If his decision to resign was not a voluntary act, but an initial separation forced upon him by Company misconduct, the question whether his application for reem- ployment deserved to be looked upon favorably or not is mooted. The idea that Ortiz was provoked into resigning is novel now to the case, and there is much to indicate the contrary. Having arranged, as he said, with an employee named Wilson to change shifts, he worked Wilson's second shift that day, starting at 4 p.m. Duncan, the supervisor, asked what was he doing there, and had he cleared it with Tun- nel? When Ortiz explained he had been unable to reach Tunnel in advance, and after Duncan said such indepen- dent trading of shifts was not permitted, Ortiz asked was he being faulted because of his union button, and Duncan answered "no." It seems Ortiz did work the 8 hours from 4 p.m. to midnight. He said that at that point he asked a third shift man, DeLa Garza, to switch shifts with him for a few months. It seems this was agreed, but exactly what happened then, and who worked on which shift, is a little unclear. Whether it was that night or the next day, Ortiz found himself in conversation with Tunnel, who refused to agree to any permanent change of shifts because company policy required consideration of seniority rights, and crit- icized Ortiz for having changed shifts the day before with- out permission. Here Ortiz started a quarrel with Tunnel, called him a "puppet," and again asked "was all this be- cause of the union button?" Again the answer was "no." It is clear that the next day Tunnel had him in the office and gave him a written reprimand. When Ortiz protested the supervisor said he could talk to Thompson if the em- ployee wished. Ortiz drove to Thompson's office. Then Or- tiz told Thompson "Why all this damn crap? . . . As soon as I put this button on, all of you jumped at me for any- thing, just harrassing me all the time . . . he [Thompson] said, `That damn button doesn't mean a thing to me. You'- re nothing special just because of that button."' This was the third time in 2 days that the employee, resentful of what must have seemed perfectly proper criticism, tried to inject the union element in the conversation and thereby set up a fictitious story of antiunionism. There is some conflict in testimony as to what happened after that, and, given Ortiz' demeanor at the hearing, and some inherently unpersuasive parts of his testimony, I am inclined to discredit him when the management witnesses give a different version of events. The basic factual dispute which underlies the issue with respect to this man is whether it is true, as he and the General Counsel contend, that there was not a practice, or requirement that employ- ees clear in advance with the supervisors before changing shifts among themselves. Ortiz started by saying he did try to get Tunnel on the phone for permission before arranging with Wilson to swap assignments. His answer to the ques- tion-why did he do that if, as now claimed, everybody did as he pleased and the Company did not care at all-is in itself very revealing. "Because I was wearing a union but- ton, and they were after my ass, sir." This is bootstrap reasoning and the witness prejudged the case from the start. It was not a convincing answer; he knew he had to clear in advance and he knew he merited a reprimand, and all his bitter quarreling with one supervisor after another later was only expressions of resentment for being unable to change hours here so he could enjoy the day job be had just found elsewhere. His unlikely testimony, as best it can be understood, continues on another thing he did. Ortiz said that Thompson told him that day "We're not going to lay you off" because the other man involved, whom Thompson called Juan Garza, was not being disciplined either. Nevertheless, after talking to Tunnel again that same day, Ortiz left. His explanation of the departure de- fies understanding. "I drove around for about 15 minutes. I was on my layoff. . . . The three-day layoff which was automatic on my third warning. . . I had an option ... . He said that I could take the punishment or return to work, whatever I wanted." I cannot credit this witness. After driving around for a while Ortiz returned to Thompson and said he wanted to quit. Thompson sent him into the personnel department to sign the usual resignation form used by the Company. Ortiz signed it and left. He testified that after telling Thompson he was quitting, and after Thompson had arranged for him to go into Davis' office, he, Ortiz, said "Wait a minute, I changed my mind," and that the other man said "This is not a game. As far as I'm concerned, you have quit." Ortiz went into the next room and signed the papers, where he talked with Davis before leaving. He returned 2 days later for his separation checks and again talked to Davis. His testimony about the final two talks with Davis is a rambling, argumentive, and suggestive recital of disagreement between him and Davis about the value of unionism. Somewhere in his general dia- tribe against Davis there appears the suggestion he offered to return to work, or suggested that if the Company were really as good a place as Davis portrayed, he, Ortiz, was ready to return. He even said that at one point Davis said be could not come back because "he was too active." Whatever else may be true about antiunion conduct by Thompson and Davis proved elsewhere on this record, their story of Ortiz' departure is at least understandable and coherent. And even though there was a certain amount MISSION VALLEY MILLS 453 of interrogation by Davis, after Ortiz' final decision to quit and his signing of the resignation, on these talks with Ortiz about wanting to come back to work I credit the two com- pany agents. Thompson said he had no recollection of the man saying he had changed his mind and no longer wanted to leave. If Ortiz had in truth decided not to quit, the last thing he would have done, in his then frame of mind, was walk into the next room, and sign the resignation form. Davis recalled that during the formal exit interview, Ortiz suddenly said "what if I told you I really didn't want to quit?", but that before he could reply the employee added, "No, no, I was just kidding, forget it." I find that Ortiz left the Company of his own accord, that he did not offer to come back to the job and, of course, that he was not denied the opportunity. The whole situation came about because be had found other day time work. A man who leaves a reprimand conference and in- sists upon taking a 3-day layoff after being told he is not required to do so, is more concerned with other employ- ment than this job. He thought it over for an hour, came back, and resigned. Obviously, once again, the other job was his main interest. This doubletalk about wanting to remain while simultaneously and voluntarily signing resig- nation papers, will not do and does not warrant further discussion here. He was not unjustly reprimanded and he was not constructively discharged. And just as I do not believe his garbled version about his separation events, I do not accept his story of union talk he had with Davis after he was through with the job. He said Davis then asked why he had started the union campaign, what had the Union promised him, and how many cards had he successfully solicited. He said Davis went on to say the Company had given increases in pay, and showed him many newspaper clippings about strikes at other plants. Ortiz added Davis then said he knew Ortiz was not the only man and showed him a slip of names; the witness called off six names he said he remembered seeing on that paper, five of which are employees named in this com- plaint as having been illegally discharged. I credit Davis' denial that he asked how many cards had Ortiz obtained, that he showed any list of names, or that he had any such list. Instead I believe the two shook hands when Ortiz left. 7. Jose Gomez Precisely what the allegation of wrongdoing is as to this man does not appear clearly from a study of all the plead- ings and of all the related testimony. His name first ap- pears in the November 1975 complaint as one of several employees who were unjustly given letters of reprimand "since May 1, 1975." The specifications later then detail four reprimands to him-exactly dated-as having been unlawfully motivated, and therefore each constituting an unfair labor practice. These are dated as follows: May 5 and 7, September 24, and October 4. At the start of the hearing, on January 26, the General Counsel amended the complaint to allege that Jose Gomez was illegally "sus- pended" on September 24, 1975. The reprimands, all written, were not produced at the hearing. Only Gomez and his supervisor, Smith, testified about this part of the case, and from their composite story it is not possible to understand just what reprimands the man was given, when they were given, or for what reasons. Indeed, there is no rapport between the complaint allega- tions and the employee's story. And neither the General Counsel's nor the Union's brief makes any attempt to clan- fy what the theory or pertinent facts may be. The testimo- ny of Gomez may present a problem because of his inaccu- racy in the English language, but there is no reason why the attorneys on the prosecution side of the case could not make clear what their contentions really are. In any event, Gomez started by saying clearly that his first reprimand came in February 1975-"For not wearing safety goggles while blowing off the machine." This means that by September he had four warnings, if the complaint specifications are to be believed. Gomez also testified, again quite clearly, that he was given a 3-day disciplinary layoff around the first week of October. This must relate to the reprimand dated October 4-called illegal. But the complaint says nothing about that layoff or "suspension" as having been improper. If I judge by the nature of the evidence offered by the General Counsel, there is indica- tion that the "suspension" imposed on Gomez on Septem- ber 4 was only because that reprimand was the third as provided for in the handbook rule. Thus he had Gomez talk at length about whether the earlier reprimands-how- ever many there may have been-were regular, written, filed or not, and therefore improperly counted towards the requisite three. At the same time, however, Gomez argues extensively that the last reprimand-or was it that of Sep- tember 24 and not that of October 4?-was occasioned by faults in the machine or in the nature of the cloth, and not any deficiency in his performance at all. But such evidence stands apart from the number of reprimands; it goes to the proprietary of any single reprimand. I am not sure which theory it is supposed to be. On top of all this, Gomez tried to show that the first reprimand at least-in February- was no more than a counseling, one that did not count. "Was anything, to your knowledge, put in writing about that? A. Not that I know of." Almost in the next breath he said he was asked to, but "refused to sign it." If he was asked to sign anything, it had to be in writing. I do not understand what this part of the whole case is all about, and therefore, because it is the General Counsel's burden to prove the commission of an unfair labor practice by affirmative, probative, and certainly understandable ev- idence, I find the proof insufficient for a finding that Go- mez was discriminatorily suspended. He spoke very defen- sively about the instance which provoked the suspension, whenever it was that it happened. In fact, he was a hostile and confused witness. Again and again he explained how the machine worked poorly, how the Company knew this, and how things were beyond his control, yet impliedly ad- mitted the cloth did emerge in poor condition. In mixing the events of the past he revealed an attitude that could well explain reprimands as perfectly proper. He said that when Knox said he had been ordered "to chew me out" for talking, "I told him if he made that rule for everybody, that I would follow it " He said the next day he did it again and again a supervisor had to tell him to stop. Told it was his responsibility to report defective machinery to manage- 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, he said he once answered his pay scale was too low anyway. There is no significant testimony tying any of these rep- rimands with talk of union activity, whatever other coer- cive statements may have been made in other contexts or on other occasions . I shall recommend dismissal of the complaint as to Gomez. F. Further Violations of Section 8(a)(1) In addition to the various violations of Section 8(a)(I) already found, those bearing a relationship to the discharge issues litigated , a number of other acts of interference, re- straint, and coercion violative of the Act were proved on the record. They are largely of the same kind as those al- ready found, and no real purpose would be served by set- ting out all the minute bits of evidence detailing each and every one of them here . The fact other interrogations, for example, or even threats , may have been voiced by other supervisors also, would in no substantial sense call for a different or more stringent remedy. Several, perhaps the more glaring violations , are as follows: 1. Refugio Franko, the fixer, testified he had a number of conversations with Supervisor Duncan about the Union. He said that in May Duncan came to his machine to ask "Have you been to any union meetings? ... how's the union coming along." In his office in mid-June, still ac- cording to Franko, Duncan asked him "Well, how is the union doing now? . . . is it getting any better?" When Franko answered it looked as though the Union was "going to come in," the supervisor said : "Well, I don't think that the union's any good for the company. If they come in, you probably won't get any more raises. In fact, it'll probably be a long time before you get a raise ." Franko also recalled Duncan telling him, in September, not to talk to one Garcia , another employee, and henceforth to adhere to a strict schedule for lunch instead of choosing his lunch period at will as he had in the past. Duncan also said, as Franko further testified : "And I don't want you to be talk- ing to anybody about the union during your break sched- ule, or during working hours." Duncan denied asking Franko any questions about the Union or about his interest in it . As to the matter of raises he also denied saying there would be no raises in the event the union came in. He said it was Franko who asked about a rumored raise, and "I told him I hoped ... if they got a raise, I hoped it would come through before the union elec- tion , because if it resulted-was during the union election it would be a negotiation on a contract ." Duncan admitted telling Franko to be more precise about time spent at lunch . As to the Garcia incident, the supervisor's version is Garcia complained he did not want to be bothered with union talk and that the only thing he, Duncan , then told Franko was not to annoy Garcia. I credit Franko here . For Duncan to tell him not to talk to anybody about the Union, anywhere in the plant, was consistent with the way all of management was implement- ing its discriminatory rule against union solicitation, and interrogation of employees about their union activities was contemporaneously being carried on by the highest offi- cials. I find that by questioning Franko about his union activities, by telling him future raises would be prejudiced by union activities , and by ordering him not to discuss the Union anywhere on the premises, Supervisor Duncan vio- lated Section 8(a)(1) of the Act. 2. In August 1975 Stella Aguirre worked under Supervi- sor Roy Timmerman, one of a group of eight employees. She said Timmerman called each of the eight into his office for a private conference . He kept her alone there for about 25 minutes-"[H]e wanted to talk about the union since I had my button on . . . he tried to convince me not to vote for the union . . . . He said the union would get us in trouble, and that we would have a lot of trouble with the union . . . he said that we won 't have much work if the union would get in . . . we may be laid off because of the work . ..." She told Timmerman she "was sorry, but I wanted to vote for the union ," and that the supervisor then said "that if the union gets in here , the plant might be closed. . . . They might have to close the plant ." Aguirre also testified to a talk with Mr. Costillela , another supervi- sor, a week before the election. "[H]e told me . .. if the union would get in there we might not have much work, and we might be laid off, and the ones that were in the union would be the first to be laid off." Costilleja did not testify . Timmerman said he called the women into his office to talk about low production. He denied telling Aguirre there would be less work if the Union came, or that employees would be laid off, or that the plant would close. I credit the employee, and I find that by Supervisor Costillela's statement that the prounion em- ployees would be discharged , and by Timmerman's state- ments to her that there would be less work , the employees might be laid off, and the plant closed if the Union pre- vailed, the Respondent violated Section 8(a)(1). 3. V. Rodriguez was also very active in the Union. Trying for a transfer to the other plant , he spoke to Person- nel Director Derek Davis several times . His testimony is that in the first talk Davis found occasion to ask him "what did I think about the union?" In a second talk Davis again talked of the Union, voiced his views, and used very bad language . According to the employee, he complained to Davis about how the Company was treating his brother Ernesto, and Davis answered : "Well, all I know is that everybody who is proumon will have to go at one time or another, will have to go out of the plant." Davis' testimony is that Rodriguez wanted to assure him he, Rodriguez, un- like his brother, was not a union activist . Davis denied saying that prounion employees would be released. Asked did he discuss the Union with Rodriguez, Davis equivocat- ed "No, no, I had no direct conversation with him about the union, other than we dust must my general sentiments about unionism." Considering both the demeanor of the witnesses and the record as a whole , I credit Rodriguez and find that Davis did interrogate him about his personal union sentiments , and that he did say union adherents would eventually lose their jobs because of such activities, all in violation of Section 8(a)(1). 4. Elvira Vargas has been an employee of the mill for 32 years. She said her supervisor , Ed Albers, came to her ma- chine one day to ask what did she think about the Union. When she answered she had been at meetings, the supervi- sor told her "people might think that if the union would MISSION VALLEY MILLS 455 come in, it's going to be easier. . . But it was not going to be any easier, probably was going to get harder, because we'd have to be on the go, we got to put up with eight full hours, eight hours work . . . we don't mess around and say, `Well we got to sit down.' " Albers' testimony is he "struck up a conversation with her about the union. I asked her what she thought of it, and she gave me her views," and that he did tell her "there was a possibility of loss of jobs, strict rules . . in the event of a strike or-that it would be trouble, or could be a possibility. . . . And I says, if it continues the company couldn't manufacture production and deliver the orders, and they'd lose money, lose customers . . . and it's a possibility, and it could- possibility they'd be closed ... . I find that Supervisor Albers interrogated Vargas about her union activities, that he told her working conditions would be more onerous if the Union prevailed, and that he told her the plant might close if the employees chose to be represented by the Union, and that by each such statement he violated Section 8(a)(1) of the Act. 5. David Machuca, formerly an employee, testified that at an orientation lecture for new employees sometime in August 1975, Training Director Henry Garza, a conceded supervisor, spoke of unionism and of the Farah Company closing a plant "because of the union, and he told us that if it came into Mission Valley, that they had 34 other plants, that if they closed our plant, you know, it wouldn't hurt them, and the union just wanted our money." "[H]e told us that he didn't care if we were for the union or not, but they were going to try anything they could to avoid the union from getting into the mill." Garza said he devotes 5 or 10 minutes to the subject of unions in his talks to newly hired employees, and that at the August meeting he discussed the Farah Company's experiences as reported in the news me- dia-". . . some kind of a boycott . . . a lot of strikes there a lot of negotiations. . . . Basically things like that." He denied any threats to close the plant. Asked was he trying that day "to convince the new employees not to join the union," he answered: "Just stating facts; they have their own opinion they have to make themselves, we did not try to influence them either way." I do not credit this man. I find that he made the new employees understand the Com- pany would close the plant if it had to in order to avoid dealing with the Union and thereby violated Section 8(a)(1). As stated, there may be other incidents of violations of Section 8(a)(1) proved on this record by sufficient evi- dence. There is also evidence relating to other incidents alleged to be violations, but the evidence is insufficient. In either event, it would unduly delay this decision to belabor such minor matters that have no substantive effect upon eventual disposition of the case. IV CASE 23-RC-4277 The Objections In view of the unfair labor practices found above, many occurring after the filing of the petition and before the date of the election, it is clear that there is merit in the Union's objections to the results of the election. I will recommend, therefore, that the results of the election be set aside and that a second election be conducted when the Regional Director deems proper. The Union advances a further ground for setting aside the election. It states in its objections, and reiterates in its brief, that the Respondent "dominated" an antiunion com- mittee of employees. Were such a specific finding warrant- ed on this total record, it too would be superfluous and in no sense affect the remedy called for. There was a group of employees who campaigned against the Union; it is true supervisors joined in the antiunion campaign; indeed, it was shown and has already been found that one or more distributed literature prepared by antiunion minded em- ployees. But a technical finding of "domination" presup- poses the existence of a labor organization improperly as- sisted by management. It is by no means clear there could be such a finding on this record. Again, I think it pointless to belabor what is really no more than a reparaphrasing of improper conduct by management representatives already found. V. THE REMEDY It having been found that the Respondent committed diversified unfair labor practices, it must be ordered to cease and desist from such conduct in the future. The four employees illegally discharged must be reinstated and made whole for any loss of earnings they may have suf- fered in consequence of unlawful discrimination against them, with backpay to bear interest at 6 percent per an- num. It must discontinue its discriminatory rule against solicitation aimed against the union activities of its em- ployees and remove reprimands issued pursuant to such rule from the files of those employees to whom reprimands were issued. In view of the extent of the unfair labor prac- tices committed, the Respondent must also be ordered to cease and desist from in any other manner violating the statue. VI. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, 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 of commerce. CONCLUSIONS OF LAW 1. By discharging Mary Casarez, Ben Gomez, Joe Mc- Kee, and Gaston Brady, and by issuing written reprimand warnings pursuant to its illegal no-solicitation rule to Mary Casarez, Joe Sanchez, Refugio Franko, Ernesto Rodriguez, Rachel Mendez, and Ben Gomez, the Respondent has en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act. By the foregoing conduct, by maintaining and enforcing a discriminatory no-solicitation rule, by interrogating em- ployees concerning their union sentiments and their union 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, by promising increases in economic benefits or wages as inducement for employees to abandon union ac- tivities, by threatening to impose more onerous conditions of employment, by threatening to layoff and discharge em- ployees because of their union activities, by threatening to move the plant elsewhere and to close it in retaliation for union activities, and by inviting employees to deal individ- ually and directly with management for the purpose of in- ducing them to abandon union activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Respondent, Mission Valley Mills, a subsidiary of West Point Pepperell, New Braunfels, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against its employees because of their union activities. (b) Issuing written reprimand warnings to its employees in effectuation of its unlawful discriminatory rule against soliciting. (c) Maintaining its unlawful discriminatory no-solicita- tion rule, interrogating employees concerning their union sympathies and activities, promising increases in economic benefits to induce employees to abandon the Union, threatening to impose more onerous conditions of employ- ment, threatening to move the plant to another location or to close it, threatening to layoff or discharge employees because of their union activities, or inviting employees to deal with management individually to satisfy their griev- ances in order to induce them to abandon concerted activi- ties. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-orga- nization, to form, join, or assist Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL- CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing and to 2 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 engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Mary Casarez, Ben Gomez, Joe McKee, and Gaston Brady immediate and full reinstatement 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. (b) Make whole the foregoing employees for any loss of pay or any benefits they may have suffered by reason of the Respondent's discrimination against them. (c) 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 Order. (d) Remove from the personnel files of Mary Casarez, Joe Sanchez, Refugio Franko, Ernesto Rodriguez, Rachel Mendez, and Ben Gomez, the written reprimand warnings issued to them during 1975 in effectuation of Respondent's illegal and discriminatory no-solicitation rule. (e) Post at its two mills in the town of New Braunfels, Texas, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by its repre- sentatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO RECOMMENDED that the complaint be, and it hereby is, dismissed with respect to the allegations that Le- andro Aguirre, Jessie McKee, Juan Ortiz, and Jose Gomez suffered illegal discrimination in employment. IT IS FURTHER ORDERED that the election held in Case 23- RC-4277 on October 23, 1975, be, and it hereby is, set aside, and that the case be remanded to the Regional Di- rector for Region 23 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 3 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the 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 "