Finesilver Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 28, 1966

160 N.L.R.B. 1400 (N.L.R.B. 1966)

1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed the letters to these employees for the avowed purpose of
defeating the Meat Cutters so that the Teamsters could subsequently
seek to represent then. In our opinion the misrepresentations in the
letter affected improperly the results of the elections in both voting
groups.
Under all the facts and circumstances herein, including the timing
of the letter's distribution, the number of employees involved, and the
multishift nature of the operation, it is clear that the Employer and
the Meat Cutters Were precluded from making any effective reply
prior to the election. We find, therefore, that the misrepresentations
were material and substantial and reasonably tended to interfere with
the free choice of the employees in both elections.
Accordingly, we shall set aside the elections conducted herein and
direct that second elections be conducted.'
[The Board set aside the elections conducted on February 2, 1966.]
[Text of Direction of Second Elections omitted from publication.]
G We need not, and do not, reach the other issues raised by the requests for review
Finesilver Manufacturing Company and Amalgamated Clothing
Workers of America , AFL-CIO. Cases 23-CA-2167 and 2241.
September 28, 1966
DECISION AND ORDER
On June 30, 1966, Trial Examiner David London issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and Was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner' s Deci-
sion . Thereafter, the Respondent filed exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
160 NLRB No. 111.
FINESILVER MANUFACTURING COMPANY 1401
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner."
[The Board adopted the Trial Examiner's Recommended Order.]
1 These findings and conclusions are based , in part , upon credibility determinations of
the Trial Examiner , to which the Respondent has excepted , alleging that the Trial Ex-
aminer was biased and prejudiced After a careful review of the record , we conclude that
the Trial Examiner ' s credibility findings are not contrary to the clear preponderance of
all the relevant evidence Accordingly , we find no basis for disturbing those findings.
Standard Dry Walt Products , Inc, 91 NLRB 544, enfd . 188 F 2d 362 ('C A. 3). We reject
the charge of bias and prejudice on the part of the Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed September 22, 1965, in Case 23-CA-2167 by Amalga-
mated Clothing Workers of America, AFL-CIO ("the Union"), the General Coun-
sel, acting through the Board's Regional Director for Region 23, issued a complaint
on December 6, 1965, amended at the hearing that followed, charging that since on
or about August 31, 1965, Finesilver Manufacturing Company ("Respondent"), had
interfered with, restrained, and coerced its employees in the exercise of rights guar-
anteed by Section 7 of the National Labor Relations Act, as amended ("the Act"),
thereby violating Section 8(a)(1) thereof. Upon another charge filed by the Union
November 29, 1965, in Case 23-CA-2244, and amended November 30, 1965, the
General Counsel, on December 28, 1965, issued a complaint in that proceeding
alleging that Respondent violated Section 8(a)(1) and (3) of the Act by discharg-
ing its employees Elisa Moreno and Gilbert Perez on or about November 12 and
22, 1965, respectively, because of their membership in, or activities on behalf of,
the Union, or because they engaged in concerted activities with other employees for
the purpose of collective bargaining or other mutual aid and protection.
By its separate answer filed in each of the above proceedings, Respondent denied
the commission of any unfair labor practice. On January 6, 1966, the above-named
Regional Director, deeming it necessary in order to effectuate the purposes of the
Act, and to avoid unnecessary costs and delay, consolidated the two proceedings.
Upon due notice, a hearing in the consolidated proceeding was held before Trial
Examiner David London at San Antonio, Texas, on March 29 to 31, 1966. All par-
ties were represented by counsel or representative and were afforded full opportu-
nity to present evidence, to examine and cross-examine witnesses, and to present oral
argument. Since the close of the hearing, briefs have been received from the Gen-
eral Counsel and Respondent and have been duly considered.
Upon the entire record in the case and my observation of the witnesses as they
testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a Texas corporation
having its principal office and plant facilities at San Antonio, Texas, where it is
engaged in the manufacture of clothing. During the year preceding the filing of the
complaints in these proceedings, which period is representative of all times material
herein, Respondent sold and shipped goods valued at more than $50,000 from its San
Antonio, Texas, facilities to customers located at points outside the State of Texas.
During this same period, Respondent purchased goods valued at more than $50,000
which goods were shipped to its San Antonio, Texas, facility directly from points
outside the State of Texas. I find that the Respondent has been and is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein , a labor organization
within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The Union began its campaign to organize Respondent's employees on Janu-
ary 18, 1965,1 and has, since that date, continuously engaged therein. On May 14,
the Board's General Counsel issued a complaint against Respondent in another pro-
ceeding, Case 23-CA-2016, alleging violations similar to those charged in the instant
consolidated proceeding. Ancillary thereto, and pursuant to Section 10(j) of the
Act, the Board's Regional Director aforementioned, on July 20, filed a petition in
the United States District Court for the Western District of Texas, San Antonio
Division, seeking injunctive relief against Respondent's alleged violations of the
Act. A hearing on the petition was held before that court on August 30 to 31.2
About 12.45 p.m, on August 31, after attending the District Court hearing above
mentioned, employee Frank Cartinas returned to his job in Respondent's shipping
and receiving department. While "working as usual and talking to one of [his]
fellow workers," Bob Folger, admittedly a principal supervisor of Respondent, came
to Cartinas and said: "You don't want to start any of that business of having people
signing cards. Believe me God, I will have you fired so fast that it's going to make
your head spin. I have got a lawyer in the office now who can back me up, and
you had better walk nice and straight and narrow and I will be watching you. You
may not know it, but I will be watching you." Cartinas testified that he was not
then engaged in "having people signing cards . . . or anything like that," and there
is no testimony that he was, or had been, engaged in union activity during
worktime.
The findings pertaining to this incident are based on the testimony of Cartinas
which I credit Though Folger testified at considerable length, he did not deny the
statements attributed to him by Cartinas. I therefore conclude that Folger's threat
to fire him was intended to restrain Cartinas from engaging in union activities dur-
ing both worktime and nonworktime, and was reasonably so construed by him.
By that threat, Respondent violated Section 8(a)(1) of the Act.
Frances Plata, employed by Respondent for about 5 years, testified at the hear-
ing in the District Court on August 31. On that day, upon returning to her work
post on the first floor of Respondent's plant, she found it necessary to go to the
restroom. In order to reach that room, located on the second floor, she had to
pass the desk of Blanche Kuykendall employed behind a glass partition in Respond-
ent's office on the second floor. According to Plata's undisputed testimony, on every
occasion that she found it necessary to go to the restroom during about 3 days
after her District Court appearance, Kuykendall left her desk in the office, followed
Plata into the restroom, remained there as long as Plata did, and then followed her
out of the restroom. Plata reported to the Union's business representative that she
was being "followed" and, after 3 days, the practice stopped.
There was no showing that Plata did anything that was improper or prohibited.
Indeed, Respondent, in its brief, apologizes for Kuykendall's conduct. While her
conduct did not constitute surveillance in the normal sense, as it did not involve
scrutiny of employees' union or concerted activities, I find nevertheless, because of
the inhibiting effect upon Plata who knew she was being watched, and apparently
thought it was because of hei union activities, that Respondent thereby interfered
with, restrained, and coerced its employees in violation of Section 8(a)(1) of the
Act.3
'Unless otheiwise indicated, all iefeience to dates herein aie to the year 1965
2 The findings in this paragraph pertaining to Case 23-CA-2016 and the District Court
action are had on official notice which I have taken of the pendency of those proceod-
ings Except for the limited purpose of showing that these proceeding, were then pend-
ing, I have given no consideration or effect thereto They have been referred to only for
the limited purpose of giving meaning to the four paiagriphs that follow
3 The testimony is undisputed that Kuykendall interviewed applicants for employment
and was the office employee to whom requests for leave were addressed Kuykendall did not
testify I conclude that Plata "had just cause to believe that [Psuykendall was] acting for
and on behalf of the management in the situation under dispute and therefore liability
for [her] conduct is properly attributable to the Respondent" Olin Industries, 86 NLRB
203, 209, enfd. 191 F.2d 613 (C.A. .5).
FINESILVER MANUFACTURING COMPANY 1403
On September 20, the Union , by telegram, advised Respondent that 19-named
employees , including Benny Aguilar, to whom special reference will be made here-
after, were members of the Union and also members of its organizing committee.
On September 27, the Union sent another telegram to Respondent naming 14 other
employees who were on its organizing committee , including Elisa Moreno and
Gilbert Perez, the alleged discriminatees herein.
On September 21, Respondent posted on its bulletin board , and enclosed in the
pay envelopes of its employees on the following payday, the following notice:
NOTICE TO ALL EMPLOYEES:
1. The union says the signing of cards will be confidential.
The TRUTH: ANY EMPLOYEES WHO SIGNS A CARD FOR A
UNION MAY BE CALLED UPON TO TESTIFY IN OPEN COURT
UNDER A SUBPOENA.
COMMENT: The best way to avoid this is to stay away from union meet-
ings, and then you can't be forced to sign cards . NO ONE HAS TO
SIGN A CARD, OR ANYTHING ELSE.
2. The union says this company can 't close down.
The TRUTH: WE DO NOT INTEND TO CLOSE DOWN UNLESS WE
HAVE TO. HOWEVER, THE SUPREME COURT OF THE UNITED
STATES HAS SAID THAT ANY COMPANY CAN CLOSE DOWN
COMPLETELY FOR ANY REASON AT ALL REGARDLESS OF
A UNION.
COMMENT : This company will continue to run its own business, union
or no union , strike or no strike.
3. The union says that we cannot oppose a union.
The TRUTH: WE CAN OPPOSE UNIONISM. WE DO OPPOSE
UNIONISM AND WILL FIGHT IT TO THE LEGAL LIMIT OF
THE LAW.
September 21, 1965.
FINESILVER MANUFACTURING COMPANY
Between September 21 and December 17, Respondent posted and enclosed in the
pay envelopes of its employees, five notices of import similar to the foregoing
notice. On September 22, Respondent posted on its bulletin board a set of rules to
govern the conduct of its employees. These rules, as copied in longhand by an
employee and stipulated to by the General Counsel, read as follows:
Any employee guilty of any of the following offenses, shall be subject to im-
mediate discharge.
1. Insurboration, [sic], including refusal to perform woik assigned or comply
with Company Rules or Regulations regarding Safety, Sanitation, Conduct,
or operations.
2. Dishonesty, including theft of company property, altering or falsify [sic]
any time or other records or punching another employee's timecard.
3. Deliberate misuse or abuse of company equipment or property.
4. Carrying concealed or prohibited weapons.
5. Drinking, possessing or under the influence of alcohol beverages or narcotics
while on duty or on company property.
B. Any employee who has received one or more warnings of any previous viola-
tions of the following rules shall be subject to disciplinary action, including
discharge or suspension.
6. Bodily injury or any conduct violating common decency or morality.
7. Any deliberate stoppage or slow down of work
8. Negligent damage for company property or merchandise.
For excessive absentee [sic I or tardiness.
9. Taking more than specific time for meals or rest period.
Failure to follow instructions of immediate supervisor.
The testimony is undisputed that at least during the 18 months preceding the pro-
mulgation and posting of these rules no comparable rules had ever been posted.
The complaint alleges that by posting the notice of September 21 Respondent
(1) interfered with and restrained the organizational rights of its employees by
stating that Respondent would ascertain the identity of any employee who signed a
union authorization card because said employees may be subpenaed to testify in
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
court proceedings, thereby disclosing their affiliation with the Union, and (2)
threatened employees that Respondent may shut down its plant in the event the
employees selected the Union as their bargaining representative.
"The statements in and of themselves might possible be lawful and noncoercive,
but viewed in [their] entirety, there is sufficient evidence of a background of union
hostility, in context with the statements made, to bring them within the proscrip-
tion of Section 8(a) (1) of the Act." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d
275, 278 (C.A. 5). As the court said in Hendrix Manufacturing Company, Inc. v.
N.L.R.B., 321 F.2d 100 (C.A. 5): "Violations of Section 8(a)(1) are not limited
to threats made good . It is a question of whether , under the circumstances existing,
the employees could reasonably conclude that the employer is threatening economic
reprisals if they support the Union."
On the entire record I find that by posting the notice of September 21, when con-
sidered in context with the newly imposed threats of discharge contained in the
rules of September 22, Respondent warned its employees that it would ascertain
who were members of the Union and would visit reprisals upon them because of
that membership, thereby violating Section 8(a)(1) of the Act.
On September 17, employee Benny Aguilar obtained a loan of $35 from Herzel
Finesilver, Respondent's vice president, to provide medical care for one of his
children. On September 22, Finesilver came to Aguilar's work post and accused him
of lying about the illness of his child. Aguilar insisted he had told the truth and
volunteered to prove it by bringing "a paper from the doctor." During the early
morning of the following day, September 23, Aguilar met Finesilver near the water
cooler and told him he had the "paper" referred to above. Finesilver instructed him
to bring it to his office later in the day. During the lunch break that followed,
Aguilar took the medical certificate to Finesilver's office and handed it to him.
Without looking at the certificate, Finesilver laid it aside, told Aguilar that he had
received the Union's telegram of September 20 designating Aguilar as a member
of the Union's organization committee, and asked him whether he knew that his
name was on the telegram. Aguilar replied that he was aware thereof. Finesilver
thereupon asked why he had done it and Aguilar answered that "with the Union,
[the employees] would have a better break." Finesilver then told him that he did
not care if he was with the Union or not, "but those people in this telegram are
going to be fired in one way or another." He also informed Aguilar that Respond-
ent's attorney had told him to post rules, undoubtedly referring to the rules posted
September 22 heretofore discussed, and asked Aguilar if he had read them. When
Aguilar replied affirmatively, Finesilver told him to "be careful about them [sic]
rules."
The findings in the preceding paragraph are based on the credited testimony of
Aguilar who was in the employ of Respondent at the time of the hearing. He
impressed me as an honest and credible witness, one who had nothing to gain by
this testimony. According to Finesilver, Aguilar came to his office on September 23
to borrow money and he "just happened to have" the Union's telegram on his
desk, "just let him read it, . . . but said nothing" about it. I do not credit Finesil-
ver's version of the incident.
Gilbert Perez, who had previously been employed by Respondent, was reem-
ployed in July 1965. On this latter occasion, he was called to the office of Mervin
Finesilver, Respondent's president, and told that Finesilver did not want him to
"get into this crowd of people." When Perez asked which crowd he meant, Fine-
silver replied: "The Union crowd." Perez nevertheless induced about 10 employees
to sign union cards and, on September 26, authorized the Union to designate him
as a member of its organization committee and to notify Respondent of that
designation. As previously indicated, he was so described in the telegram received
by Respondent on September 27.
On September 29, Herzel Finesilver told Perez that he had heard that Perez had
been saying that he could not be fired because he was a member of the Union's
organization committee and added: "I'm going to wait for you to make just one
mistake and then I am going to fire you, . . . just one more mistake and I'm going
to fire you," a statement which, in light of the remainder of the record, I find to
be inherently coercive. I am convinced that had Perez not been a member of the
Union's organization committee he would not have been so threatened, and con-
clude that by so threatening him Respondent violated Section 8(a)(1) of the Act.
FINESILVER MANUFACTURING COMPANY 1405
A. The discharge of Moreno
Ehsa Moreno was employed by Respondent from July 1958 until November 12,
1965, when she was discharged. During that entire period, most of her time was
devoted to the operation of two machines creasing flaps to be attached to the back
pocket of pants on 85 to 90 percent of Respondent's entire pants production. Fre-
quently, however, "most every week or every 2 weeks," Theresa Lott, her imme-
diate supervisor, assigned her to other tasks, "turning front pockets, making belt
loops and button holes." During the entire period of her more than 7 years' em-
ployment she was given a paid vacation in December, a fringe benefit enjoyed
only by those employees who met a prescribed work quota.
During the last week in August, Lott told Moreno that she would have to assign
her to another operation because Respondent planned to discontinue making back
pocket flaps "except on special orders." From that time on , she devoted only 2 to
3 days a week to flap creasing.
Shortly after September 27, when Respondent was notified of Moreno's member-
ship on the Union's organization committee, Lott "started to move [her] around,"
and assigned another girl to the task of creasing flaps. Moreno complained to Lott
that creasing was her principal job and threatened to report the transfer to the
Union's business agent whereupon Lott told her that she would report her threat
to John Taylor, Respondent's production manager. Lott talked to Taylor, returned
to Moreno about 10 minutes later, and told her that she had been instructed by
Taylor to put her back on her creasing machine.
About noon of Wednesday, November 10, Moreno asked Lott whether she
could leave at 4 p.m. to take her daughter to the dentist. About 2:15, while Moreno
was "making buttonholes," Lott told her she could leave. On the following day, her
two children awakened with a fever, and she did not report for work. Though
Moreno had asked her sister to notify Respondent's office of her absence from the
plant, the sister failed to do so. Moreno reported for work on Friday, Novem-
ber 12, and found her timecard missing from the rack. She thereupon asked Lott
for an OK concerning her absence and which would enable her, to regain and
punch her timecard. Lott instructed her to report to Mrs. Clayton in Respondent's
personnel office where she was told that Taylor wanted to talk to her. When he
arrived, he merely told her he did not have any work for her, would call her
"whenever he had something for [her] to do," but said nothing else.4
On the following workday, November 15, Moreno called the plant, asked to
talk to Taylor, and was told by Clayton that he was not available, that there was
no work for her, and they would call her whenever they "had something" for her
to do. She called again the following day and was told they "weren't hiring any
new girls, ... and didn't have anything for [her] yet." Moreno has never been
recalled .5
Respondent does not, and apparently never has, complained of the quality of
Moreno's work during her more than 7 years of employment by Respondent.
Indeed, Taylor testified "she was a good worker," that the "only thing wrong with
Elisa Moreno was her work attendance record." Significantly, however, nothing
was said to her about that record when her services were terminated on Novem-
ber 12 and thereafter declined. Even more significant in appraising the truthfulness
of this assigned reason is that he admittedly told her he "would take her back again
if we started making flaps."
Taylor, who was Respondent's production manager and supervised about 600
employees, testified that though Respondent has since November 1965, indeed,
"always" hires new operators, he refused to recall Moreno. According to him,
Respondent only hired experienced operators who required no training and that he
refused to take "her back and train her on something [because he had no] guar-
antee that she would work regular." 6 Moreno, however, was experienced in a num-
ber of tasks other than creasing flaps. Taylor himself testified that Moreno "knew
4 Taylor testified that he "told her that we had no more flaps . . . weren't making flaps
anymore, . . . and didn't need her." Moreno asked whether they did not have "anything"
for her, and he answered that he did not.
5 The finding in the preceding two paragraphs are based on the credited testimony of
Moreno Neither Lott nor Clayton was called upon by Respondent to testify.
6 While Moreno's work record reflected a number of absences from work, Taylor testified
that absence for a "good reason-wouldn't count against her." There was no testimony
that her absences were other than for "good reason "
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how to run belt loops, . that [he] taught her to turn pockets, . . . [and] she
learned how to do a single needle operation" which he considered to be "a com-
plex" job. Moreno impressed him as a "fairly intelligent girl," one to whom he had
"given three different things to do and she did reasonable well."
On the entire record, with special emphasis on Taylor's admission that he "would
take her back again if [Respondent] started making flaps," and her admittedly
satisfactory performance in other operations, I find that the reason now assigned
for discharging and refusing to assign her to other tasks was not the true reason
for that refusal. Human experience dictates that an employer does not normally
dispense with the services of an efficient employee with 7 years' experience with-
out cause. Having discredited the only reason assigned for her termination, con-
sideration of the entire record compels the conclusion that Respondent seized
upon the termination of its flap operation as a cloak to cover its true motive-a
warning to its other employees of the power possessed by it in its avowed and
determined campaign to defeat the organization of its employees. By discharging
Moreno and refusing to recall her, Respondent violated Section 8(a)(1) and (3)
of the Act.
B. The discharge of Perez
Gilbert Perez was employed by Respondent from April 1964 to July 1965, when
he voluntarily left that employment. About 3 weeks later, he was reemployed and,
except for the first 11/2 days thereafter, was engaged as an order filler in the stock-
room until discharged on November 22. In the latter capacity, it was Perez' duty
to fill orders submitted by Respondent's customers for pants, jeans, shirts, etc. in
the number and sizes designated on the order. Respondent, in its brief, contends
that Perez was discharged because "from the start of the order filling job, Perez
made errors and mistakes" culminating with an order, allegedly filled by him, on
the last workday before he was discharged.
In support thereof, two fellow employees and two supervisors testified that Perez
was guilty of the negligence attributed to him by Respondent. I am, however, con-
vinced that two of these witnesses so grossly exaggerated Perez' work performance
that I place no reliance thereon. Thus, employee Oscar Cunningham, who devoted
only a part of his time to checking, testified that in the last 2 months of Perez'
employment, on "dust about every order that [he] checked, [Perez] had mistakes
of one kind or another." Sidney Gillman, also a part-time checker, testified that
"every order [filled by Perez] that [he] picked up had a mistake in it." Further-
more, their demeanor while testifying, failed to inspire confidence in the truthful-
ness of their testimony. Supervisors Folger and Borman, by their demeanor, evasive-
ness, contradictions, and apparent bias in favor of Respondent, also failed to
impress me as credible witnesses.
The, record nevertheless establishes, indeed Perez frankly admitted, that he had
made mistakes in filling orders assigned to him. Thus he testified, not only that he
"made mistakes," but also that Herzel Finesilver and Folger warned him once or
twice before September 21, and again thereafter.
On Friday, November 19, the last day Perez worked before he was discharged
on Monday, November 22, an order of J. C. Penney Company for 57/12 dozen
of jeans was filled.? Folger testified that when the order, identified in the record as
Respondent's Exhibit 1, was checked on Saturday, November 20, when Perez was
not at work, it was ascertained that the order, bearing the initial "G," was short
four pair of jeans and wrong with respect to size on other items. On the following
Monday morning, Perez' timecard was missing from the rack and he was told to
report to Herzel Finesilver's office where he found Finesilver and Folger. Folger
showed him a memorandum, which he, Folger, had himself prepared, indicating
errors in the Penney shipment, following which Finesilver told him that, having
made too many mistakes, he was being discharged. The testimony is undisputed,
however, that though requested to do so by Perez, he was not shown the Penney
order bearing the "G" which Respondent now contends conclusively establishes
that the order was filled by him.
At the hearing, when Perez was shown the Penney order, he denied that the
identifying "G" had been made by him and testified why he thought so by pointing
to a part of the letter. Perez volunteered to write out his "G" so as to graphically
demonstrate that it was different than that found on the Respondent's Exhibit 1, but
Respondent's counsel declined Perez' invitation.
7 There were six to eight order fillers, all of whom were required to initial every order
they filled after which the order was checked, for number only, by three checkers.
FINESILVER MANUFACTURING COMPANY 1407
Perez testified that while he sometimes initialed the orders he filled with the ini-
tial "G," he mostly used "GP." In this respect, he was corroborated by Folger
who testified that when Perez "first started working as an order filler he signed
`GP' . [but] in the last 2 or 3 weeks he worked for [Respondent], he dropped
the `P' and was just using the `G.' " Folger also admitted that Respondent had
two other order fillers whose last name began with a "G."
To establish that Perez had filled and initialed the Penney order in question,
Respondent called as its expert witness L. M. Benavides, a retired U.S. Secret
Service employee. Benavides testified that he was retained by Respondent early
that very morning and had devoted only 35 minutes to an examination of the
following documents:
(a) Respondent's Exhibit 1, the Penney order in question, dated November 11,
1965, and consisting of two pages.
(b) Respondent's Exhibit 7, another Penney order, dated October 7, 1965, con-
sisting of seven pages and initialed "GP."
(c) Five other Penney orders, collectively identified as Respondent's Exhibit 8,
dated between October 7 and November 6, 1965, two of which bear the initial "G."
(d) Four Penney orders, collectively identified as Respondent's Exhibit 9, dated
between October 14 and 28, 1965, only one of which bears the initial "G."
(e) Respondent's Exhibit 10, consisting of three Penney orders, dated October 7,
only one of which bears the initial "G."
All of these exhibits also bear what appear to be the initials of three other persons.
In the aggregate there were several hundred numbers on these five exhibits to indi-
cate the number of garments ordered and their varying sizes. Each of these num-
bers had a penciled circle or oval around it, made by the order filler and indicating
that the circled item had been supplied.
Following a very brief explanation for doing se, Benavides testified that in his
"opinion it is highly probable that the person who wrote the first `G' in Exhibit 1
wrote the `Gs' in Exhibits 7, 8, 9, and 10." He further testified that "very probably
the same person wrote all of the [several hundred] circles on all of the exhibits"
aforementioned .8
The General Counsel having established a prima facie case of discrimination, it
was incumbent upon Respondent to come forward with evidence to establish that
Perez filled the order in question, it being the incident that allegedly triggered the
decision to discharge him. Respondent has failed to do so.
Absent any evidence that they were qualified to render expert opinion, or that
they had ever actually seen Perez write his initials on any of the exhibits, coupled
with my evaluation of the remainder of their testimony as heretofore noted, I
place no reliance on the conclusion of Folger, Borman, Cunningham, and Gillman
that it is Perez' initial or initials that appear on any of the Respondent's exhibits
discussed above, nor was I impressed nor persuaded by the testimony of Benavides.
He did not testify it was his judgment that the initial on any of the exhibits was
placed thereon by Perez, but merely concluded, that, in his opinion, "it is highly
probable" that the same person initialed all five exhibits. But there is no credible,
probative evidence in the record that Peiez initialed any of these exhibits.
Perez, the first witness in the case, denied that he initialed Respondent's Exhibit
1, the order in question. Though he was cross-examined at length by Respondent's
counsel, he was not asked a single question concerning the initials on Respondent's
Exhibits 7, 8, 9, and 10 which Respondent now seeks to impute to him When he
had entirely completed his examination and cross-examination, the General Counsel
announced that Perez was then employed in Houston 9 and that he had promised
his employer that Perez would be released from his subpena as soon as he had
completed his testimony. Addressing himself to Respondent's counsel, the General
Counsel stated that because of the question pertaining to the identity of the "G" on
Repondent's Exhibit 1, he inquired whether "there's anything additional that
[Respondent] would like to ask [Perez] regarding this thing [sic]" while he was
still in the courtroom. Respondent's counsel replied that he had "nothing further,"
and that he had "finished [his] cross-examination." Respondent's Exhibits 7 to 10,
inclusive, were not offered into evidence until the following day, after Peiez had
departed for Houston.
There is an additional circumstance which prompted me to reject even an infer-
ence that Benavides' testimony, characterized by Respondent in its brief as that
a He subsequently testified that he examined only the first few of the five exhibits.
9 The hearing herein was conducted in San Antonio.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a "handwriting expert," supports its contention that the "G" on Respondent's
Exhibit 1 was made by Perez. If that was to be its effect, experience in that field
dictates that the most reliable test for determining the genuineness of a signature
is to compare it with one that is admittedly genuine. Here, Respondent must have
had in its possession canceled paychecks bearing Perez' signature, tax withholding
statements, etc., concerning which there could be no doubt about his signature.
Respondent failed to produce any such evidence. Indeed, during the hearing, Re-
spondent specifically rejected Perez' offer to write and submit a sample of his "G"
for comparison, and no such sample was made available to Benavides by Respond-
ent. I conclude that Respondent has not established that Perez filled the order in
question, or that he appended the "G" to Respondent's Exhibit 1.
But even if it be assumed that I am in error with respect to the conclusion just
announced, and that, in fact, Perez filled and initialed Respondent's Exhibit 1, I
nevertheless find that by discharging him, Respondent violated Section 8(a)(1) and
(3) of the Act. As previously indicated, Perez admitted making errors but Respond-
ent's own witnesses testified that all of the six to eight order fillers were guilty of
errors. Folger testified that he was "sure" that the other order fillers made mistakes
and when asked what he did about it, replied: "We correct [the errors] when we
find them." When next asked whether he had ever fired an order filler, he replied:
"I had occasion to fire a boy, I believe it was this past summer," a boy who had
worked for about 2 or 3 weeks at that task but whose name he could not remember.
Respondent's counsel, during the cross-examination of Perez, announced he would
"grant [that] mistakes are normal in order filling." Nor is it surprising that mis-
takes are not uncommon in light of the fact that Perez, and presumably the other
order fillers, selected and handled approximately 2,900 to 3,300 garments a day
In appraising Respondent's contention that Perez was the wretched order filler
portrayed by Folger, Borman, Cunningham, and Gillman, consideration must also
be given to the undisputed testimony that on the last day Perez worked, Friday,
November 19, Folger asked him to report on the following Saturday for overtime
work.'° Note must also be taken that on November 17, 2 days after Perez' wife
gave birth to a baby, Finesilver loaned him $50 and expressed no apprehension
about Perez' ability to repay the loan out of future wages. He made the loan
notwithstanding his announced policy to Perez that he "didn't lend out any money
because . . . a girl working in the office had quit owing him $25."
"The question here is not whether there were in fact legitimate grounds for dis-
charge but rather whether the dismissal was in significant part motivated by pro-
scribed considerations." N.L.R.B. v. D'Armigene, 353 F.2d 406, 409 (C.A. 2),
citing N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2),
and Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). "If discouragement of
union membership is a substantial, motivating reason for a layoff, the existence of
an alternate ground of justification is no defense. The charge is sufficiently estab-
lished if, in addition to an economic ground shown . . . there is proof from
which [I] may fairly find . . . that the layoffs were motivated by a purpose to
interfere with union organizational activities." N.L.R.B. v. Lexington Chair Com-
pany, 361 F.2d 283 (C.A. 4, May 6, 1966) See also Nachman Corp v. N L.R B.,
337 F.2d 421, 423 (C.A. 7); Marshfield Steel Co. v. N.L.R.B., 324 F.2d 333, 337 (C.A.
8); 0. A. Fuller Super Markets, Inc., 152 NLRB 217; Heck's Inc., 156 NLRB 760.
Application of the foregoing principle to the entire record herein compels the
finding and conclusion that Perez' role in the Union's organizational campaign
then pending was a substantial, if not the controlling factor, in the decision to dis-
charge him. Insofar as the record discloses, none of the remaining six to eight
order fillers were members of the Union's organization committee and admittedly,
all of them made mistakes. According to Folger, however, none of them were dis-
charged, they merely "correct them when [they] find them." Nor is there any
evidence that any of the other order fillers were personally warned as Perez was on
September 29, immediately after Respondent was notified of his appointment to
the organization committee, that if he made " just one more mistake," he would be
fired.
Respondent argues that because it did not discriminate against other members
of the organization committee, any unlawful motive in discharging Perez is thereby
dissipated. "However, it is established that a discriminatory motive, otherwise estab-
lished, is not disproved by an employer's proof that it did not weed out all union
10 Perez declined the opportunity to do so because of the condition of his wife.
FINESILVER MANUFACTURING COMPANY 1409
adherents." Nachman Corp. v. N.L.R.B., 337 F.2d 421 (C.A. 7), citing N.L.R.B.
v. Shedd-Brown Mfg. Co., 213 F.2d 163, 174-175 (C.A. 7); N.L.R.B. v. Nabors,
196 F.2d 272, 276 (C.A. 5). The discharge of all or a substantial number of the
Union's organization committee would have paralyzed Respondent's operations. For
its unlawful purpose, the effect it would have on the remaining employees, it was
sufficient to discharge Moreno and Perez.
By reason of all the foregoing I find that by discharging Perez on November 22,
1965, Respondent violated Section 8(a)(1) and (3) of the Act. Except as found in
earlier portions of this Decision, I conclude that the General Counsel has not
established by a preponderance of the evidence that Respondent was guilty of the
other independent violations of Section 8(a)(1) of the Act. It will, therefore, be
recommended that those allegations be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the business operations of Respondent, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminatorily terminating the employment of Elisa Moreno and Gilbert
Perez, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The unfair labor practices described above are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain unfair labor practices, I rec-
ommend that it be ordered to cease and desist from such conduct and to take certain
affirmative action designed to dissipate its effect. Respondent having illegally dis-
charged Elisa Moreno and Gilbert Perez, it must be ordered to reinstate them to
their former or equivalent positions. Respondent is also ordered to make these
employees whole for any loss of earnings they may have suffered in consequence of
the illegal discrimination against them in their employment. Backpay shall be com-
puted in accordance with the formula prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and the assessment of interest shall be computed in the
manner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 176.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon the rights guaranteed to its employees by Section 7 of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case , I recommend that Respondent , Finesilver Manufac-
turing Company, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Laying off, discharging , refusing to employ, or otherwise discriminating
against employees in order to discourage membership in, or support of, Amalga-
mated Clothing Workers of America , AFL-CIO, or any other labor organization.
(b) Threatening its employees with discharge or other reprisals if they become
or remain union members , or give assistance or support to a union.
257-551-67-vol . 160-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening employees that the plant will be shut down or moved away if a
union comes into the plant.
(d) Interrogating employees concerning their union membership in or activities
in a manner violative of Section 8(a)(1) of the Act.
(e) Creating the impression that it is engaging in surveillance of the union activ-
ities of its employees.
(f) In any other manner interfering with, restraining , or coercing its employ-
ees in the exercise of their rights to self-organization , to form, join, or assist labor
organizations , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Elisa Moreno and Gilbert Perez immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of earn-
ings they may have suffered by reason of Respondent's discrimination against them
as set forth in that section of the Trial Examiner's Decision entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the Armed Forces
of the United States of America of their right to full reinstatement upon application
in accordance with the Selective Service Act and Universal Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, all
payroll records and other records necessary to analyze the amounts of backpay as
set forth in "The Remedy" section of this Decision.
(d) Post at its plant in San Antonio, Texas, copies of the attached notice marked
"Appendix." 11 Copies of said notice, to be furnished by the Regional Director for
Region 23, after being duly signed by Respondent or its representatives, shall be
posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Decision, what steps Respondent has taken to comply herewith.i2
Having previously concluded that, except for the specific violations found above,
the General Counsel has failed to establish by a preponderance of the evidence
that Respondent was guilty of other conduct allegedly violative of the Act, it is
recommended that those allegations be dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in Amalga-
mated Clothing Workers of America, AFL-CIO, or in any other labor orga-
nization, by discharging or otherwise discriminating against employees in regard
to their hire or tenure of employment, or any other term or condition of
employment.
WE WILL offer Elisa Moreno and Gilbert Perez immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed, and WE WILL
"In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and
Order."
iz In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify the Regional Diiector for Region 23, in writing, within
10 days from the date of this Ordei, what steps it has taken to comply herewith "
ENDURO METAL PRODUCTS CO., INC. 1411
make them whole for any loss of pay they may have suffered as the result
of the discrimination against them, in the manner described in the Trial Exam-
iner's Decision.
WE WILL NOT interrogate employees concerning activities on behalf of the
above -named or any other labor organization , in a manner constituting inter-
ference, restraint, or coercion violative of Section 8(a)(1) of the Act.
WE WIILL NOT threaten employees with a closing of the plant or other
reprisals , in order to discourage union membership or activities.
WE WILL NOT create the impression among our employees that we are
engaging in surveillance of their union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization , to form, join, or
assist any labor organization , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to retrain from any or
all such activities.
All our employees are free to become or remain , or to refrain from becoming
or remaining, members of any labor organization.
FINESILVER MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone
228-4722.
Enduro Metal Products Co., Inc. and Local 194, Metal Polishers,
Buffers International Union, Hudson and Bergen Counties.
Case 22-CA-2614. September 28, 1966
DECISION AND ORDER
On July 5, 1966, Trial Examiner Boyd Leedom issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a motion for a new trial.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
160 NLRB No. 110.