Finesilver Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 648 (N.L.R.B. 1975)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finesilver Manufacturing Company and Southwest
Regional Joint Board, Amalgamated Clothing
Workers of America, AFL-CIO. Cases
23-CA-5061 and 23-CA-5194
September 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 31, 1975, Administrative Law Judge Pe-
ter E. Donnelly issued the attached Decision in this
proceeding. Thereafter, Respondent, General Coun-
sel, and Charging Party filed exceptions and support-
ing 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 as mod-
ified below and to adopt his recommended Order as
modified herein.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent variously
violated Section 8(a)(1) of the Act by certain conduct
of its supervisors, officers, and/or owners as fully de-
scribed in the attached Decision.' We also agree with
the Administrative Law Judge's finding that Respon-
dent discharged employees Matilda Flores and Rubi-
ns Rivera because of their union activities in viola-
tion of Section 8(a)(3) of the Act. We disagree,
however, with the Administrative Law Judge's find-
ing that employee Maria Aranda was discharged for
using a vulgar expletive while speaking to
Respondent's chairman of the board, Mervin Fine-
The Respondent , General Counsel, and the Charging Party have except-
ed to certain credibility findings made by the Administrative Law Judge. It
is the Board's established policy not to overrule an Administrative Law
Judge's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188
F.2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no
basis for reversing his findings.
2 The General Counsel and Charging Party contend that the Administra-
tive Law Judge erred in failing to find certain other of Respondent's con-
duct violative of Sec . 8(a)(1) of the Act . While the facts supporting some of
these allegations (notably the alleged surveillance of union activities by su-
pervisors , Hertzel Finesilver's statement to Lillian Reyes to the effect that if
the Union came into the plant the employees would no longer be able to
bring their grievances directly to management, and Supervisor Lubianski's
statement to employee Taylor that if the Union came into the plant Lubian-
ski might lose her job), raise close legal issues , we deem it unnecessary to
resolve these issues in the circumstances here , inasmuch as additional find-
ings of 8(a)(1) violations would not, in any event, affect the remedy herein.
silver. Instead, for the reasons set forth below, we
find upon the record as a whole that Aranda's dis-
charge was grounded on her strong support of the
Union and that the asserted reason for the discharge
was seized upon by Respondent as a pretext to hide
its true motive.
Aranda was employed in Respondent's shirt de-
partment from February 1973 until her discharge on
April 18, 1974. Her role as an active union organizer
and supporter was well known to Respondent. In-
deed, she was so named, along with other employee
organizers , in a telegram from the Union to Respon-
dent, dated April 3, 1974. In addition to having
signed a union card, Aranda also secured authoriza-
tion cards from some 50 other employees. Aranda,
who had previously worked at the nearby Farah
plant, was known to the Finesilvers as a "Farah strik-
er." The record also reveals, as the Administrative
Law Judge found, that from the very beginning of
the Union's organizing campaign Respondent took a
lively interest in Aranda's union activities. Thus, in
attempting to ascertain her union sentiments, Re-
spondent twice violated Section 8(a)(1) of the Act in
early March 1974; first by Mervin Finesilver's direct
interrogations of Aranda and, when that interroga-
tion failed to disclose her sentiments, by Mervin's
delegation of another employee, Willie Gavlic, to in-
quire into her union sympathies.
On April 18, Aranda was summoned to Hertzel
Finesilver's office because she had written on a com-
pany notice posted on Respondent's bulletin board.
When Aranda arrived at the office, both Finesilvers
were present, as well as supervisors Taylor, Scott,
and Lugo. Aranda admitted having written on the
notice. Upon further interrogation, she left the office
to bring another employee back with her to serve as
her witness. When Aranda returned with this witness,
Mervin informed Aranda that she had no right to
pull another employee off the job, and, after further
reprimands, discharged her when she used a vulgar
expletive concerning the way the plant was run.
Although it is undisputed that Aranda used such
an expletive, we do not agree with the Administrative
Law Judge's conclusion that this was the real reason
for her discharge.
The record reveals that expletives were commonly
used at Respondent's plant as evidenced by an inci-
dent between employee Barbara Haar and Supervi-
sor Coy, during which, according to the credited tes-
timony, Coy used profanity. Nor were vulgar
expletives alien to Mervin Finesilver' s ears . However,
while there is evidence in the record that profanity
was used at Respondent's plant, there is no evidence
that anyone was ever disciplined to any extent for the
use of such profanity. Thus, the Respondent's dis-
220 NLRB No. 90
FINESILVER MANUFACTURING COMPANY 649
charge of Aranda for her use of a four-letter word is
clearly an example of disparate treatment meted out
to a strong union adherent.
Accepting Mervin Finesilver's version of the dis-
charge, it must be noted that Aranda was in a most
difficult and emotionally upsetting situation. Sur-
rounded by three company supervisors plus the two
Finesilvers, she was first reprimanded for writing on
a company notice and then even more adamantly
scolded for bringing another employee into the Fine-
silvers' office to act as her witness. In light of Mervin
Finesilver's violatile nature, as is apparent from the
transcript of the hearing, and his hostility to the em-
ployees' concerted activities, we conclude that this
interview was not conducted in a spirit of tranquility
and reason. Thus, Aranda used this expletive in a
highly emotional context while defending herself
against Finesilver's accusations. Moreover, in seek-
ing out a witness during her disciplinary interview,
Aranda was engaged in a concerted protected activi-
ty for which she could not lawfully be discharged.'
In view of the foregoing, we can only conclude
that Respondent seized upon her use of the four-let-
ter word as a pretext to get rid of a known union
leader. Accordingly, we find that Respondent violat-
ed Section 8(a)(1) and (3) of the Act by discharging
Maria Aranda for her union activity.
AMENDED CONCLUSIONS OF LAW
We adopt the following in place of paragraph 4 of
the Administrative Law Judge's Conclusions of Law:
"4. By discharging Rubina Rivera, Matilda
Flores, and Maria Aranda, thereby discriminating in
regard to their hire and tenure of employment, in
order to discourage membership in the Union, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Fine-
silver Manufacturing Company, San Antonio, Texas,
its officers, agents , successors , and assigns , shall take
the action set forth in the said recommended Order
as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Matilda R. Flores, Rubina Rivera,
and Maria Aranda immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent employment, and make
them whole for any loss of pay which they may have
suffered as a result of the discrimination practiced
against them, in the manner set forth in the section of
this Decision entitled `The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
3 Intl Ladies' Garment Workers Union v Quality Manufacturing Company,
420 U.S. 276 (1975).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees or
otherwise discriminate against them in regard to
their hire and tenure of employment in order to
discourage membership in Southwest Regional
Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT create impressions of surveil-
lance, threaten, harass, intimidate, interrogate,
or coerce our employees in order to discourage
membership in and activities on behalf of South-
west Regional Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO, or
any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the National Labor Relations Act, as amend-
ed.
WE WILL offer to Matilda R. Flores, Rubina
Rivera, and Maria Aranda immediate and full
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
employment, and make them whole for any loss
of pay they may have suffered as a result of the
discrimination practiced against them, plus in-
terest at 6 percent per annum.
,FINESILVER MANUFACTURING COMPANY
DECISION
STATEMENT OF THE CASE
PETER E . DONNELLY, Administrative Law Judge: The
charge in Case 23-CA-5061 was filed by Southwest Re-
gional Joint Board , Amalgamated Clothing Workers of
America , AFL-CIO, herein called Charging Party or
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, on April 22, 1974, and the complaint issued thereon
on June 20, 1974. The charge in Case 23-CA-5194 was
filed by the Charging Party on July 25, 1974, and the com-
plaint thereon issued September 4, 1974. Both complaints
allege violations of Section 8(a)(1) and (3) of the Act by
Finesilver Manufacturing Company, herein called Respon-
dent or Employer. Answers to the complaints were timely
filed by Respondent. By order dated September 6, 1974,
the cases were consolidated for hearing. Pursuant to notice,
the hearing was held before me at San Antonio, Texas, on
September 18, 19, 20, 23, 24, and 25; October 21, 22, 23, 24,
and 25; November 20 and 21; all in 1974. Briefs have been
timely filed by the General Counsel, Charging Party, and
Respondent, which have been duly considered.
FINDINGS OF FACT I
1. EMPLOYER 'S BUSINESS
Employer is a Texas corporation having its principal of-
fice and plant facilities at San Antonio, Texas, where it is
engaged in the manufacture of clothing. During the past 12
months, 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, facility directly
to customers located at points outside the State of Texas.
During this same period Respondent purchased goods val-
ued at more than $50,000 which goods were shipped to its
San Antonio, Texas, facility directly from points outside
the State of Texas. I conclude that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges and Respondent in its answers
admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES 2
A. Facts, Discussion, and Analysis
1. The 8(a)(l) allegations
The complaints allege that, on or about the dates set
forth therein, the Respondent discharged eight employees
i There is conflicting testimony regarding many allegations of these com-
plaints . In resolving these conflicts , I have credited all of the relevant testi-
mony of some witnesses and parts of relevant testimony of others and in so
doing I have taken into consideration , where appropriate, the apparent in-
terests of the witnesses ; the inherent probabilities ; the probabilities in light
of other events ; corroboration or lack of it ; the consistencies or inconsisten-
cies within the testimony of each witness and between the testimony of each
and that of other witnesses with similar apparent interests . Testimony in
contradiction to that upon which my factual findings are based has been
carefully considered but discredited. Additional factors, in addition to these
general criteria , are noted in evaluating the testimony of some witnesses.
2 General Counsel in its brief concedes that no testimony was elicited to
support the allegation in par . 11(b) of the complaint in Case 23-CA-5061
and moves to withdraw this allegation . The record herein supports this rep-
resentation and the motion is hereby granted.
in violation of Section 8(a)(3) of the Act. Further, the com-
plaints allege that Respondent, through its agents and su-
pervisors, as named therein, engaged in acts of surveil-
lance, created impressions of surveillance, threatened,
harassed, intimidated, interrogated, and engaged in various
other coercive activity against employees, all in violation of
Section 8(a)(1) of the Act. The 8(a)(1) allegations will be
treated individually below, according to the individuals al-
leged to have committed the violations.3
a. Mervin Finesilver 4
In about mid-March 1974,5 while at work on the second
floor of the plant, Willie Gavlick was called aside by Mer-
vin and requested to inquire of Maria Aranda, another em-
ployee and a friend of Gavlick's, concerning her union ac-
tivities. Thereupon Gavlick went over to Aranda, telling
her that he had been sent by Mervin to discover what her
intentions were with respect to the distribution of some
union handbills in her possession, and further that Mervin
had asked him to inquire of her whether she was trying to
organize for the Union. Aranda denied any union involve-
ment. Gavlick returned to Mervin and reported what Ar-
anda had told him. Later that day Aranda asked to see
Mervin. She went to his office where Aranda again denied
any involvement with the Union and testified, "And then
he told me that well, I knew how the rumors got to him and
that is why being that Willie and I were such close friends
or good friends that that's why he had sent him upstairs to
get the information from me for him because he wanted to
know if I was for or against the Company." Mervin denies
requesting Gavlick to interrogate Aranda but admits that
he did say to Gavlick, sometime in March, "I understand
your girlfriend is a union organizer", to which Gavlick only
responded "awww." Mervin also concedes that the meeting
with Aranda and Gavlick took place in his office and that
Aranda denied any union involvement, but denies that he
told Aranda that he had asked Gavlick to inquire about
her union activity. A composite of the credited testimony
of Aranda and Gavlick persuade me that Mervin did en-
gage in coercive activity by telling Aranda of his efforts to
ascertain, through Gavlick, the extent of Aranda's union
involvement.6
Ruby Rivera, one of the alleged discriminatees in this
matter, testified that, in about mid-March, she brought
some union pamphlets into the plant which she distributed.
Thereafter, while working she was told by her supervisor,
Gertrude Lubianski, that Mervin wanted to see her. In
conversation with Mervin in Taylor's office, Mervin told
her that he had been told that she had been seen handing
out union handbills and asked her if she was for the Union
7 Amendments to the complaint in Case 23-CA-5061 have been noted
and changed.
4 Hereinafter referred to as Mervin.
5 All dales refer to 1974 unless otherwise indicated.
6 Counsel for the General Counsel represents that the transcript shows
that the 8(a)(1) allegations contained in par. 8(e), (f), (g), (h), and (i) of the
complaint in Case 23-CA-5061, attributed to Mervin , were in fact made by
Hertzel Finesilver (hereinafter referred to as Hertzel), but that they were
nonetheless fully litigated . I agree . The record supports this contention and
findings thereon will be made in my consideration of the other 8(axl) alle-
gations attributed to Hertzel.
FINESILVER MANUFACTURING COMPANY
or for him . He also told her that, as a trusted employee, he
felt that he could call on her for help , but that he had been
told that she did not like him or Hertzel and that she want-
ed to hurt the Company. A discussion of company benefits
ensued with Mervin saying that the Company had paid
vacations , holidays, and a Christmas bonus, asking her
what other benefits the employees wanted , to which she
responded "sick leave", as they were getting at Farah. Mer-
vin told her that the Union would not help the employees,
that all the Union wanted was their dues, telling her, "If
you all want the Union you should go to work at Farah."
Mervin testified that , while a conversation did take place, it
was at Rivera's request and dealt exclusively with Rivera's
desire to change jobs from sewing pockets to repair work,
which she had previously done. However, I credit Rivera
and conclude that Mervin, by calling Rivera into his office
and probing these union related matters , interfered with
Rivera's Section 7 rights in violation of Section 8(a)(1) of
the Act.
Louis Gaona , a pants presser, testified that , on or about
April 18, while he was working , at or about 8:30 a.m., his
foreman, Eugene Canales , told him that the Finesilvers
wanted to see him . He went to Mervin 's office where Mer-
vin, Hertzel, Respondent 's attorney , and two policemen
were present . The company attorney advised him that he
had not been called to the office concerning his union ac-
tivity. Thereafter Gaona was questioned concerning a
threat with a knife alleged to have been made by Gaona
towards another employee . Gaona denied making such a
threat and agreed to take a lie detector test . The matter of
Gaona's union involvement was also raised . Gaona told
Mervin that, like the other employees , he would go outside
the plant and listen to the union organizers, whereupon
Mervin told him "You know damn well you're in the
Union." Gaona protested this remark to the policemen,
who observed that Mervin was the owner of the place.
Mervin also asked Gaona the name of the union man he
spoke to every day outside the plant and Gaona replied
that he did not know his name , although Gaona testified
that he later learned that it was Joe Perales . Mervin testi-
fied that Gaona was called to his office because of a report
that he had threatened another employee , named Juan Ro-
sas, with a knife for refusing to sign a union card. Appar-
ently Mervin was not impressed by Gaona's denials, stat-
ing, "Now listen Louis, I know that you belong to the
Union and I don't care if you belong to the Union or not,
you're not going to stab anybody or threaten anybody in
this business . Now get it through your head ." Mervin con-
cedes that he asked Gaona the names of the union organiz-
ers because Rosas had told him that the organizers had cut
his tires and threatened him and his wife , conceding fur-
ther that the inquiries were made pursuant to an investiga-
tion resulting in the filing of the above noted unfair labor
practice charges against the Union . Respondent 's attorney
shortly thereafter discovered the names of the union organ-
7 Rosas did not testify about reporting these threats to Mervin either in
this hearing or in the prior hearing in a related unfair labor practice pro-
ceeding (Case 23-CB-1515), wherein such threats were alleged as 8(bXI)(A)
violations . The complaint thereon was dismissed by me and sustained by the
Board (216 NLRB No. 107 ( 1974) ).
651
izers by simply asking them. In my opinion, the justifica-
tion for the interrogation about the identities of the union
organizers , in these circumstances , is insufficient , particu-
larly where readily available alternative methods of ascer-
taining the names of the organizers were present and sub-
sequently utilized. I conclude that this interrogation was
coercive. Further, Mervin, by his remark to Gaona con-
cerning his union affiliation, violated the Act since the re-
mark created an impression of surveillance in violation of
Section 8(a)(1) of the Act.
On July 2, a local television station announcer appeared
at the plant and taped an interview with two prounion em-
ployees and a third proemployer employee, Irma Ortiz,
who contested some of the statements made by those em-
ployees. The interviews dealt with employee benefits. Irma
Ortiz, in her interview, stated, inter alia, "We have breaks,
we have breaks and we have-we can go in and get our
coffee, drink our coffee, and they can eat whatever they
want to, we get coffee." These taped interviews appeared
on the 6 o'clock and 11 o'clock news on the evening of July
2. On the morning of July 3, Dolores Trejo, Barbara Haar,
Mercedes Martinez, Lillian Reys, and Elida Liedecke went
to Taylor's office sometime before 8 a.m., and asked him
when they would get the break that Ortiz had spoken about
on television. Taylor told them they could smoke in the
dressing room at noon, but said nothing about taking a
smoke break at 10 a.m. that day. Respondent has no offi-
cial break periods. Thereafter a rumor circulated the plant
to the effect that those girls who had come to Taylor's
office were planning to take a smoke break at 10 a.m. in
the dressing room. Taylor relayed this rumor to Mervin
and at 10 a.m. Taylor, Mervin, and Hertzel went into the
dressing room where Trejo, Haar, Martinez, Reyes, and
Liedecke were taking a smoke break. Mervin told them
that they did not take breaks like that and that they were
breaking the rules. Mervin also said that they had lied on
television about the Company and ordered them back to
work, saying, "I'm not going to argue with you, get back at
your machines this minute or get out of the building." With
respect to the matter of authorization to take the break,
Haar testified:
Q. All right, and whose idea was it to have this
smoke break at 10 o'clock?
A. No one's really.
Q. No one's at all? It wasn't yours?
A. No everybody said "10 o'clock all right?" And
we said "all right."
Q. Who is everybody?
A. The other organizers that went into his office.
Haar further testified as follows:
Q. Did you just make up your mind to get up at 10
o'clock and have a smoke break or how did it occur?
A. No, we told Mr. Taylor we'd go at 10 o'clock.
Q. When did you tell him that?
A. When we went to his office.
Q. And what -did he say?
A. He said "All right."
Mercedes Martinez testified:
Q. What was the last thing that you said he told
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you all you could do?
A. That we could not smoke in the bathroom and
Dolores [Trejo] asked him "Can we smoke in the
smoke room?" and he said "yes" so we left.
As to the alleged use of profanity by Mervin during this
incident, I do not credit the General Counsel's witnesses. I
find more credible the testimony of Respondent's witnesses
to the effect that profanity was not used during this smoke-
room incident. I base this conclusion, not only upon the
testimony of Respondent's witnesses who were present, but
also upon the testimony of other witnesses to the effect that
Mervin did not commonly employ profanity. In summary,
regarding the "smoke break" incident , it represents an ef-
fort, in my opinion, on the part of certain active union
adherents to create a confrontation with management on
the issue of smoke breaks. I further conclude that Taylor
did not authorize any additional breaks over what the em-
ployees were already receiving, but that he was in effect
attempting to explain to the employees that they already
had breaks and could smoke in certain locations. Further,
it is highly doubtful that the authorization of a smoke
break at 10 a .m., if made by Taylor, would have been limit-
ed to these five employees to the exclusion of the rest of the
production unit. Accordingly, I conclude that there was no
authorization for the 10 o'clock smoke break which these
employees took on July 3 and that Mervin did not use
profanity . In these circumstances , no 8(a)( 1) allegations
predicated upon the July 3 smoke break incident can be
sustained .'
b. Gertrude Lubianski
Ruby Rivera testified that, on or about March 27, close
to noon , Lubianski came to her machine and suggested
that she go to a stairway going to the third floor where
Lubianski would meet her in a few minutes. Lubianski met
her there and asked her if she was for the Union and Riv-
era said that she would not say if she was or not. Lubianski
told her that Mervin and Hertzel had already said they
would close before they would work under a union con-
tract and that she did not know what she would do if they
closed the plant because she would be out of a job. Lubian-
ski denies that any such conversation took place. However,
I credit Rivera and conclude that, by interrogating Rivera
about her union affairs and threatening her by representing
that Hertzel and Mervin would close the plant if it were
organized, Respondent violated Section 8(a)(1) of the Act.
Dolores Trejo testified that on March 28, about 2:30
p.m., as she was returning to her machine from the rest-
room, she was stopped by Lubianski, who called her a
naughty girl for having signed a union card, saying that, if
the Union came in, Mervin and Hertzel would close the
8 Par. 9 of the complaint in Case 23-CA-5194 alleges substantially the
same type of misconduct involving this incident attributed to Hertzel Gen-
eral Counsel in its brief, concedes that the evidence shows that these allega-
tions should have been attributed to Mervin, but that Hertzel "by failing to
disavow such epithets, and by his presence as part of the management task
force, adopted them." Since I conclude that Mervin's conduct did not vio-
late the Act, the contention in brief that Hertzel adopted the alleged coer-
cive remarks obviously must also fail.
shop and she (Lubianski) would be out of a job. Lubianski
denies that such a conversation ever took place. However,
I credit Trejo and conclude that these remarks constitute
8(a)(1) misconduct as to the plant-closing threat. I do not
find interference with any Section 7 right for Lubianski to
say that Trejo's joining the Union would cost her (Lubian-
ski) her job since this does not involve illegal coercion of
an employee.
Matilda Flores, an employee in the shirt department su-
pervised by Lubianski, testified that on April 16, the begin-
ning date of her last employment with Respondent, Lubi-
anski asked her if she belonged to the Union, stating that
"they" did not want any trouble with the Union. This oc-
curred when Lubianski took her to a sewing machine at the
time of her employment. Lubianski's recollection of the
conversation, however, is limited to simply advising Flores,
as she did all new employees, that Respondent's plant was
nonunion . Lubianski testified that she has been telling this
to new employees for "years and years" and that she adds
nothing to this statement and the employees do not ask her
questions about the statement. Flores further testified that
on April 25 shortly after the lunch break from 12 noon to
12:30 p.m., as she was starting to work, Lubianski came to
her and said that a report had been received from "some-
one" calling the Employer's office saying that Flores had
gone "downstairs" to sign a white card. Flores denied sign-
ing any such card, but Lubianski observed that these were
rumors that she had heard. Flores had, in fact , signed a
white union authorization card on April, 18. Lubianski de-
nies that any such conversation took place. I credit Flores,
and conclude that the above incidents were coercive within
the meaning of Section 8(a)(1) of the Act.
Lucy Chavez, testified that on or about May 10, 1974,
her second day of employment in the shirt department, she
spoke to Lubianski just before starting work at her ma-
chine . Lubianski told her that she wanted her to know be-
fore she started work that "they are working as a company,
not for the Union. They weren't going to become a
Union." Also, that some girls might come around asking
her to sign some papers and not to sign any of the papers
or she would get into trouble. Lubianski asked her if she
understood this and Chavez said "not really that much"
and went to her machine. Lubianski concedes that a con-
versation did take place but that it was more limited:
Q. Did you tell her anything about the Union?
A. The only thing I told her about the Union was
that this was not a union plant.
Q. You told her that?
A. Yes, I told her that.
Q. Did you tell that to all the new employees?
A. Yes.
Q. What else did you tell her about the Union when
you told her it wasn't a union plant?
A. That's all I told her. I just told her this is not a
union plant.
I find, crediting Chavez, that these remarks constitute a
threat proscribed by Section 8(a)(1) of the Act.
Dolores Trejo, a collar setter in the shirt department,
testified that on or about August 13, Lubianski checked 8
shirts out of a bundle of 80 and found the collars in need of
FINESILVER MANUFACTURING COMPANY
repair. Lubianski told Trejo to rip out the collars and re-
pair them. Upon discovering that the errors were not her
fault, Trejo gave them to Lubianski who said she would
take them back to the girl who set the collarband and who
presumably had made the error. Despite the fact that Trejo
was not required to make the repairs , the General Counsel
contends that the inspection of her work and original as-
signment of the repair work to Trejo was illegal harass-
ment . Trejo states that this work had never been checked
in this fashion before and that , in the past , even errors
made by her were repaired by a repair lady. Lubianski
testified that she normally checks the employees' work
about twice a day and that in checking the work, if she
finds anything wrong she usually rips it out and gives it
back to the operator, although she cannot specifically re-
call the incident testified to by Trejo. In the absence of
more compelling evidence of disparate treatment and since
I credit Lubianski as to the incident, I conclude that Lubi-
anski did not harass Trejo in violation of Section 8(a)(1) of
the Act.
c. Hertzel Finesilver
Lillian Reyes testified that on March 22 during a conver-
sation with Hertzel and Taylor in Hertzel's office , Hertzel
told her , inter alia , that if the Union came into the plant
she would not be able to bring her complaints to Taylor,
her supervisor, or to Hertzel . Hertzel concedes that he told
her this , but Respondent contends that this remark was not
coercive . I agree. While the statement is not entirely accu-
rate, there is no such misrepresentation involved as to war-
rant remedial relief under Section 8 (a)(1) of the Act. West-
mont Engineering Co., 170 NLRB 13 ( 1968).
Elida Liedecke states that she was sent to Hertzel 's office
at his request. Hertzel , Mervin, and Lubianski were there.
A conversation ensued in which Hertzel criticized her pro-
ductivity, to which she did not respond . Hertzel also asked
her why she was running downstairs to talk to union men
and further that she should not lie because he had seen her
there . He asked her if she was for the Union and Liedecke
denied it. Liedecke also testified that Hertzel asked her
why she wanted to be in the Union ? Hertzel testifies that
he saw Liedecke at her request on or about March 26, after
he had criticized her for walking around the plant talking
to employees , but contends that there was no discussion of
the Union at this time . Lubianski corroborates Hertzel's
version that the Union was not discussed . In view of this
corroboration and for the applicable general credibility
considerations noted earlier, I credit Hertzel and Lubianski
as to this conversation and conclude that the Respondent
did not violate Section 8(a)(1) of the Act.10
Clive Jones testified that about the last of May, at the
time he was hired , he was told by Hertzel , when Hertzel
sent him to his supervisor Canales to start work , as follows:
9I deem the allegations of par . 8(h) and (i) of the complaint in Case
23-CA-5061 to be substantially the same and they are treated as a single
allegation herein.
1 Another factor in reaching this credibility resolution is the confusion of
identities between Mervin and Hertzel, which is apparent from a review of
Liedecke 's testimony and affidavit which adversely affect the reliability of
Liedecke 's testimony as to the incident.
653
"He gave me a note and told me to go to Canales, let's see,
and in a manner of speaking , he said just keep your nose
clean and everything and you will be all right. Just don't
have anything to do with the Union." Hertzel states that he
spoke to the man about his prior employment and gave
him a note to Canales explaining that he knew Jones' aunt
and to try him out. Hertzel denies talking about the Union
with Jones. I credit Hertzel as to this conversation and
conclude that Hertzel did not violate Section 8(a)(1) of the
Act as alleged.
Jones further testified that on June 7, the same day he
signed a union card, Hertzel and Canales were checking
the pants nearby when Hertzel said, "If he is in such a
hurry to join the Union send him to me and I'll fire his
ass." Hertzel and Canales denied that this statement was
made and I credit them over Jones and conclude that no
8(a)(1) violation took place as alleged.
Mercedes Martinez, an employee, testified that, on or
about July 23, Hertzel came up to where she was working
at her machine and, after warning two employees behind
her about excessive talking, turned to her and said, "You
start working on your machine faster. Everything is going
to change around here." Hertzel recalls that he repri-
manded four or five girls for talking, and Martinez in par-
ticular because she was eating some cake during working
hours. Hertzel testified, "I don't remember saying ev-
erything was going to change around there, but all this
talking was going to change around here. Whether I said it
or not, I don't know."
Noting particularly Hertzel's somewhat faulty recollec-
tion of the incident, I credit Martinez and conclude in view
of the organizational effort underway at the plant, which
Respondent was vigorously contesting, that the remark was
a reference to and a reflection of Hertzel's attitude and
constituted a threat of harassment relating to the Union's
organizational campaign.
Dolores Trejo testified that, on or about August 13, she
was told by Lubianski that Hertzel wanted to see her in his
office. She went, and in conversation Hertzel told Trejo
that she had been insubordinate in refusing to pick up a
bundle of material and throwing it on the floor. Trejo pro-
tested that she had picked up the bundle and had not
thrown it on the floor. General Counsel alleges that Hertzel
violated the Act by harassing Trejo illegally, by "assigning
her the more arduous work of lifting bundles." However,
Hertzel denies making any such assignment and the evi-
dence does not support the conclusion that Hertzel made
such assignment . Then Hertzel told her that he wanted her
to stop singing on the job and finally told her when she left
the office, "Yes and when you get out of here, I don't want
you to get out of here and go blabber what went on in
here." Hertzel concedes that he called her into his office
and talked to her about being "ugly" to Lubianski, point-
ing out that it was not necessary to move a whole bundle of
shirts at one time, but she could move parts of the bundle.
He also said, "So I told her about being ugly to Gertrude.
I also told her about singing real loud because the girls told
me that she disturbed them and I said if I can remember
correctly-I said, look, sing softly for your own amuse-
ment, don't disturb the girls around you." Hertzel denies
having warned Trejo not to discuss their conversation with
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees . I credit Hertzel as to the content of this
conversation and conclude that no 8(a)(1) misconduct can
be predicated thereon.
While it is not alleged in the complaint , the General
Counsel appears to be attempting to establish that Lubian-
ski harassed Trejo by making the assignment in dispute.
Considerable testimony was taken as to this matter. How-
ever, the facts do not support this contention either, partic-
ularly since Trejo testified that her new assignment was
better since the bundles were more accessible to her and
enabled her to have better production. In these circum-
stances , I conclude that neither Lubianski in making the
assignment, nor Hertzel to the extent that he reiterated or
supported the assignment , violated the Act , since there is
no sufficient showing that the assignment was to more on-
erous work.
Barbara Haar testified that after the hearing in the in-
stant case had begun , sometime about October , a few min-
utes after 8 a.m., as she and some other employees were
going up the plant stairs to the second floor to punch in
prior to going to work, Hertzel spoke to a group of employ-
ees including Haar, Trejo, and Mercedes Martinez, telling
them that if they were late again tomorrow he would fire
them . Haar states that, although there were other employ-
ees entering the plant at this same time, those employees
were not singled out and threatened . Haar further testified
that the employees not warned were not union supporters
and that her group was composed of active union support-
ers. Trejo's testimony, in substance, supports Haar's ver-
sion . Hertzel testifies that he recalls the incident but that he
was speaking to all the 10 or 12 late arriving employees,
telling them to come in earlier . They were told to get there
before 8 a .m. Hertzel stated that this had been his practice
for years and that other supervisors had so spoken to late
arriving employees as a matter of policy. Hertzel's version
is corroborated by Barnes . I credit Hertzel in this regard.
Accordingly, I cannot conclude that the evidence is suffi-
cient to show that these prounion employees were singled
out and threatened in violation of Section 8(a)(1) of the
Act.
d. Willie Gavlick
As set out earlier, more fully under the 8 (a)(1) findings
as to Mervin, Gavlick was asked by Mervin to make inqui-
ries of Aranda concerning her union activity , whereupon
Gavlick went to Aranda and advised her of his mission. It
is my opinion that Mervin , by so commissioning Gavlick to
perform this task , created an agency relationship sufficient
to assign responsibility to Respondent for Gavlick's mis-
conduct . I conclude, consistent with my fact findings in
connection with Mervin, that Gavlick did in fact violate
the Act by telling her of his mission. I further conclude that
Gavlick violated Section 8(a)(1) of the Act by interrogating
her concerning her union activity. This interrogation by
Gavlick was not alleged as an independent 8(a)(1) allega-
tion in the complaint . However, since it was fully litigated
at the hearing, I feel constrained to make a finding thereon.
e. John P. Taylor
Dolores Trejo testified that on or about April 19 she was
called into Taylor's office where she was reprimanded by
him for allegedly passing out union pamphlets during
working hours and insulting those employees who did not
accept them. Trejo complained that it was herself, not
others, who were insulted. Trejo also protested that since
the Union had begun organizing she had been belittled and
harassed in her work. Taylor told her she was being paid
for it and Trejo said, "Well, not enough." Taylor replied
"Well, if you don't like it here why don't you get out of
here and go to Farah." Taylor recalls such a conversation
but denies he suggested leaving and going to Farah, al-
though he testified, "On one occasion I told her this-I
said, if things are so bad here, why don't you work some-
where else. I never mentioned Farah or I never mentioned
anybody else. I said if things are so bad here and you hate
it so, why don't you work somewhere else." It is my opin-
ion that Trejo's version is the more credible and Taylor's
remarks were coercive.
On or about May 10, Taylor held a series of meetings
with some 100 employees who he considered to be "loyal"
to the Company. The employees selected to attend these
meetings were employees who had expressed opposition to
the Union. It is not disputed that certain prounion employ-
ees were not allowed to attend these meetings, but were
instead required to work. General Counsel contends that,
by excluding union adherents and requiring them to con-
tinue to work through the meeting, Respondent violated
Section 8(a)(1) of the Act. There is no contention that the
contents of Taylor's speeches were coercive. Based upon
these facts and conceding the accuracy of the factual alle-
gations of the General Counsel, it is nevertheless my opin-
ion that Taylor's conduct was not coercive within the Act.
Trejo, a collar setter in the shirt department, testified
that, on or about June 14, she was called into Taylor's
office at about 3 p.m. He criticized her for her low produc-
tion. At this time she was producing 15 bundles a week,
whereas the Company's standard was 20. Trejo, who is
concededly a known union adherent and employee organ-
izer, also testified that she had not been called in prior to
this about her production although she had been doing
collar setting some 8 or 9 months, and that while she ad-
mits she was not making the 20-bundle standard, neither
were others. Trejo further testified that only a certain long-
time employee named Josie was making the
production standard. Trejo also testified that during this
conversation Taylor asked her why she did not like the
Finesilvers and the Company, Trejo asked him why he
thought that, and Taylor replied, "Well, you know why.
You're knifing them in the back. You do not like the Com-
pany and the Finesilvers." Taylor testified that he did in-
deed call her into his office to discuss with her the matter
of improving her production, but denies that she was treat-
ed differently from other employees in this regard, or that
he accused her of hating the Company and the Finesilvers
or knifing them in the back. In my opinion, Trejo's testi-
mony as to this incident should be credited, and according-
ly I conclude that by this incident Respondent, through its
agent Taylor, violated Section 8(a)(1) of the Act.
FINESILVER MANUFACTURING COMPANY 655
f. Eugene Canales
Abel T. Juarez testified that on or about April 13 at
lunchtime outside the plant, he spoke about the benefits of
the Union to a group of employees. After lunch Canales
took him aside and asked him what his opinion was about
the Union. Juarez told him that he was in accord with
union representation . Canales told him that the Union
would not do them any good. Canales also told Juarez, in
essence, that he had no legal rights in the United States
concerning union protection since he was a Mexican citi-
zen. Juarez is a legal resident but not a citizen of the Unit-
ed States. Later that day Canales asked him if he had legal
papers to work in the United States and that Mr. Finesilver
would want to see the papers the next day. Juarez brought
his passport to Finesilver the following day, who in turn
told him to talk to Canales . Some 20 minutes after return-
ing to work Canales came over where he and Taylor were
present and asked to see his passport . After they looked at
the passport, he went back to work.
Canales states that Juarez had made an anticompany
speech using "filthy language" and that he took Juarez
aside . Canales testified , "I told him he had no reason for
giving speeches like that up in front , talking about Finesil-
ver, after all, they give him a job, and I thought he was
happy there ." Canales denies ever asking him his opinion
about the Union. Canales also denies that he told him that
he had no rights in the United States, but concedes that he
told him, "No I didn't tell him he had no rights in the
United States . I told him he had no legal rights in the
United States like voting ." Crediting Juarez in this matter
and noting particularly the timing of this conversation
coming as it did immediately after Juarez had spoken out
forcefully in favor of the Union, I conclude that more than
curiosity motivated Canales and that Canales' conduct
constitutes coercion within the meaning of Section 8(a)(1)
of the Act.
Jones testified that, at the time he was hired , he was told
by Canales that if he joined the Union and "they" found
out about it he would be dismissed from the plant . Canales
denies any such conversation with Jones and I credit Ca-
nales in this regard. Accordingly, I conclude that Respon-
dent did not violate Section 8(a)(1) of the Act as to this
allegation.
g. Teresa Lott
Barbara Haar, an employee in the pants department su-
pervised by Teresa Lott, testified that on or about April 23
she began to wear a union button . About this time during
work hours, Lott came over to her, pointed to the button,
and asked her if she had signed a union card, to which
Haar inquired, pointing to the Union button, "For this?"
Lott repeated the question and Haar responded in the
same way, whereupon Lott left. Lott denies this conversa-
tion. However, I credit Haar as to the incident and con-
clude that the remarks were coercive.
h. Della Coy
Barbara Haar testified that on or about April 26 about
the time she began to wear a union button, Della Coy, a
floorlady in another department, approached her and
asked if she had signed a union card for her button. Haar
replied that she did not; that she just signed her name on a
piece of paper. When Haar observed that there were few
union problems in other plants where she worked, Coy said
to her, "well you don't know a damn thing about the damn
union down here, you're from Illinois." Coy denies ques-
tioning Haar in this fashion . I nevertheless credit Haar as
to this incident and conclude that the remark constituted
unlawful interrogation in violation of the Act.
i. Fred Scott
Haar testified that during the smoke break incident of
July 3, described above, Mervin ordered her out of the
factory. According to Haar, when she inquired if this
meant that she was fired, Scott came out from behind her
with a pipe with a hook on the end of it about 2 feet long
and shook it at her saying "No, you are not fired." Mer-
cedes Martinez offered testimony to support this allega-
tion. Scott, however, denies this, saying that he had nothing
in his hand at the time of the incident and only shooed the
employees back to their machines as one would shoo
chickens. Hertzel, who was also present, corroborates
Scott's testimony that he had nothing in his hands. I credit
Respondent's witnesses as to this incident, and do not find
an 8(a)(1) violation in this regard.
j. Surveillance
Allegations of unlawful surveillance were made in the
complaints against Taylor, Hall, and Lubianski. The re-
cord herein discloses that, from its inception, the Union's
organizational effort was an open campaign. The union
organizers openly solicited union membership and distrib-
uted pamphlets on a daily basis on the sidewalks, alongside
the plant, and in the open areas across from the plant
where an expressway overpass was located. Handbilling
was done as the employees went to work in the morning, at
the noon lunchbreak, and in the evening as they left work.
Authorization cards were distributed at such times. Indeed,
Union International Organizer Paul Garza states with re-
spect to handbilling in the area under the overpass, "Well,
I was handbilling as I went out there. They ain't got 30
minutes to eat, and you have to talk to them half the time
while they're still eating." The windows of the plant, which
are numerous, are generally open. It is not unusual for
employees and supervisors to look out of these windows or
to take their lunches at various places around the building
or outside the building from where the union's organizing
efforts could be observed. However, I cannot conclude that
supervisors looked out of windows or other places at their
peril or at the risk of violating Section 8(a)(1) of the Act.
To conclude otherwise would be to require the Employer
to hide from a Union's organizational activity. If a union
in its wisdom decides to organize openly, it cannot escape
the natural consequences of its decision. Accordingly, I
conclude that the General Counsel has not established the
allegations of surveillance as to Taylor, Hall, or Lubianski.
Larand Leisurelies, Inc., 213 NLRB 197 (1974).
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The 8(a)(3) allegations
a. Clive Jones
Jones was hired on or about May 22. At the time he was
hired, he was given a note by Hertzel to give to Canales. At
this time, Canales showed him a typed copy of the
Respondent's antiunion message to employees (Resp. Exh.
2) which Jones read. After some instruction as to the oper-
ation of the pressing machines, Jones began work pressing
pants. Jones worked as a presser for about 3-1/2 days.
During these 3-1/2 days Canales found it necessary to crit-
icize Jones' manner of pressing pants, since it resulted in a
stretching of the pants. He tried to get him to do the work
properly. At the end of 3-1/2 days, Jones was removed
from the pressing job because of his difficulty in pressing
the pants correctly and also because he was not performing
the operation fast enough. Jones was then reassigned to
hanging pants. Jones' performance was unsatisfactory as a
hanger, again because of his slowness and because of his
penchant for talking to the employees around him. Johnny
Epp, another pants hanger at the time, testified that jones'
slowness resulted in work backing up on the line. After
discussing the matter with Hertzel on the Friday of Jones'
second and last week of employment, Canales determined
to discharge Jones. This was accomplished by telephone
call from Hertzel to Jones' aunt, advising Jones not to re-
port for work on Monday, June 10.
General Counsel, in arguing for a violation, contends
that Mervin became aware of Jones' union activity on Fri-
day, June 7, when, according to Jones, Mervin observed
him in the company of union representatives. Jones signed
an authorization card on June 7. Mervin testified that he
had no conversations with Jones and cannot recall even
seeing him at the plant. I credit Mervin in this regard. Ac-
cordingly, and absent sufficient evidence of company
knowledge, I conclude that Jones was discharged because
of a generally poor work performance rather than union
activity.
b. Leo Almazan
Almazan worked for the Respondent only 1 day, July 17.
On this day Almazan initially spoke to Mervin, who re-
ferred him to Hall for work in the spreading room. After
some explanation of the work, Almazan began spreading
about 9:30 a.m. and worked until noon. At the noon hour
lunchbreak, upon returning from lunch, he was stopped by
two union men, one of whom was Paul Garza, who ex-
plained the union effort to him. Almazan agreed to sign a
card. This was Almazan's only union activity. Almazan
further states that Garza suggested that he sign it behind a
pillar under the expressway since Hall was looking at them.
Almazan did this. Upon returning from lunch and working
for about 10 minutes, Hall advised him that he was going
to have to let him go because the Company was going to
rehire the individual who had been employed at the job
previously. Garza testified that Taylor and Hall were look-
ing down at them from the plant at this time.
It is the position of the Respondent that Almazan was
not actually hired, and that he was being tried out on the
job. While his employment status was in this posture, Rob-
ert Manchaca, the employee who previously held
Almazan's spreading job, called the plant to explain his
failure to call in that morning, whereupon Hall accepted
his excuse and decided to keep Manchaca, in view of
Manchaca's 3 months of experience on the job, and to let
Almazan go. Further, Respondent argues that it was not
aware of any union activity engaged in by Almazan. In this
regard, Taylor denies ever knowing who Almazan was
and Hall has no recollection of seeing Almazan during the
lunch period on July 17. Crediting Hall and Taylor, I am
constrained to conclude that Respondent was not aware
that Almazan had signed a union authorization card, or
that he was otherwise engaged in any other type of union
activity. Absent such a finding, no 8(a)(3) violation can be
predicated upon Almazan's termination despite the tuning
of the discharge, coming as it did shortly after the signing
of a union authorization card, since this fact, standing
alone, will not support an inference of company knowl-
edge. Also I conclude that Almazan was, in fact, an em-
ployee and not a prospective employee trying out for the
job as Respondent argues. However, this finding does not
affect my conclusion that Almazan was not discharged for
his union activity.
c. Alexandria Martinez
Martinez was a longtime (23 years) employee in the shirt
department. She signed a union authorization card dated
March 20. Martinez claims that she and Mercedes Marti-
nez were observed by Hilda Massey, the floorlady in the
pants department, while reading a union pamphlet. This
version is confirmed by Mercedes Martinez. However,
Massey denies ever seeing Alexandria Martinez reading a
union- pamphlet and states that she has no knowledge
about Alexandria Martinez' union sentiments. Based on
the entire record herein, I find that the evidence is insuffi-
cient to support a finding that the Company was aware of
Alexandria Martinez' union sentiments.
On March 26, Martinez heard from some other employ-
ees that Marcelina Bonilla had told Martinez ' sister-in-law,
Mary Rojas, also an employee, that if she signed a union
authorization card she would bring the "immigration" to
her. This upset Martinez and about 4:30 p.m., as the em-
ployees were leaving, Martinez went to Bonilla , and with-
out warning, attacked her. In the ensuing fight , Bonilla
sustained slashes on the side of her face which Bonilla con-
tends were inflicted by a pair of clippers held by Martinez.
Martinez denies that she had any clippers in her hand and
used only her fingernails. Dr. James W. Nixon, Jr., who
examined Bonilla, testifies that the injuries were more con-
sistent with lacerations caused by an instrument like the
pair of clippers, than by fingernails. When Taylor arrived
at the scene of the fight Martinez left. Shortly thereafter
Hertzel arrived and decided to discharge whoever was res-
ponsible for the attack on Bonilla. Hertzel states that, while
he was told who the attacker was, the name Alexandria
Martinez meant nothing to him until he saw the woman the
following morning when he discharged her.
As noted above, I conclude that Respondent was un-
aware of Alexandria Martinez' union sentiments. More-
FINESILVER MANUFACTURING COMPANY 657
over, upon the entire record herein , even assuming such
knowledge by Respondent , I cannot conclude that the dis-
charge violated Section 8(aX3) of the Act. Such an assault
without warning upon another employee is sufficient
grounds for discharge and no immunity is conferred upon
an employee by reason of his or her union activity, even
when such activity is known to the employer.
d. Juana Aguilar Ramos
Ramos was employed May 23 , 1973, until she was dis-
charged on May 6. She worked in the shirt department
under the supervision of Lubianski . She signed an authori-
zation card on April 17 . After work on April 29, she and
her mother made an emergency trip out-of -state . Accord-
ing to Ramos, she called her friend , Delia Gonzalez, also
an employee , and asked her to advise the Company that
she would be absent until the following Monday, May 6,
1974. Gonzalez also testified that she received such a call
from Ramos and in fact did so advise Lugo , since Mrs.
Clayton was occupied at the time with a telephone call.
Lugo denies that this report was made to her.
Upon her return Ramos , who does not speak English,
using Dolores Trejo as an interpreter , was advised by Mrs.
Clayton that she had been replaced because she had been
absent for 4 days without notice to the Company . During
this time , outside of Clayton's office , according to employ-
ee Maria Dominguez , Trejo asked Ramos in Spanish if she
had called in and Ramos replied in the negative, whereup-
on Trejo replied "You just tell them you did call in" and
Ramos replied "okay" at which time Dominguez left.
General Counsel appears to be contending that the mat-
ter of company knowledge is satisfied by Ramos' signing a
union card, accepting union pamphlets from union organ-
izers, and speaking to employee organizers , even though
Ramos concedes that she did not discuss the Union with
supervisors . Here again , I conclude that the Company was
unaware of her union activity and, accordingly , absent this
essential element of proof, no 8(a)(3) finding is warranted.
Moreover, I credit the testimony of Lugo that she was not
told about Ramos' absence , especially in view of the testi-
mony offered by Dominguez , which I also credit . Accord-
ingly, even assuming company knowledge of her union
sentiments , I conclude that Ramos was not discharged for
these sentiments in violation of Section 8(a)(3) of the Act,
but was discharged for a week's absence without notice to
the Respondent.
e. Lucy Chavez
Lucy Chavez was employed by Respondent on May 10,
and worked until she was terminated on May 16 . She was
employed in the shirt department under the supervision of
Lubianski . On May 14, Chavez signed a union authoriza-
tion card . On May 15, on her way back from lunch, she
spoke to Garcia , Trejo, and Haar, who were located under
the overpass across from the plant . There were several
others in this group besides these three. At this time she
observed Lubianski who was looking out of a second floor
window towards them . After lunch she went back to work.
Before returning to her machine , she went to the bathroom.
As she came out, Lubianski told her to hurry up and get to
her machine and not to be fooling around . Chavez states
that on the following day when she reported for work she
was discharged by Lubianski.
Lubianski states that Chavez was hired on Friday, May
10, and that she worked May 10 , 13, and 14 , and was ab-
sent without calling in on May 15 . On May 16 , Lubianski
asked her why she had not called in . Lubianski testified, "I
asked her why she hadn't called in and she said she didn't
have time and I asked her `What do you mean you don't
have time' and she said `I just didn't have time ."' There is
a company rule which requires employees to call in if they
are to be absent , and, while Chavez denies knowing about
this rule , she admits that she was told when hired that she
was to call in by 9 o'clock if she was going to be absent.
Thereupon Lubianski decided to discharge her, since she
regarded this explanation as inadequate . Lubianski denies
ever having seen Chavez sign a card or observe her talking
to any union organizer in front of the plant.
In agreement with the Respondent , I conclude that the
evidence is insufficient to show that Respondent was aware
of Chavez' union sentiments . Her union activity was mini-
mal, limited to having signed an authorization card and
there was no showing that Respondent was aware of this.
Any company knowledge would have to be predicated
upon a finding that Lubianski observed Chavez talking to
a union representative under the overpass on the day prior
to her discharge . First, I am satisfied, on this record, that
Chavez did not work on May 15 , the day she was supposed
to have been observed by Lubianski . Second , Lubianski
denies having seen her talking to any union representative,
and thirdly, as noted to some extent , in my disposition of
the 8(a)(l) allegations relating to surveillance , I have some
difficulty in making findings of company knowledge of
union activity based on having observed the alleged dis-
criminatees in conversation with a union organizer outside
the plant, at least in the circumstances present in the in-
stant case . Admittedly, union organizers were engaged in
an effort to organize the plant and in so doing, as Garza
concedes , they spoke to union and nonunion employees,
probably without knowing their sentiments , in an effort to
persuade them to support the union position . This organi-
zational effort among the Respondent 's employees was ex-
tensive ; morning, noon , and evening, especially at lunch-
times . Supervisors concededly looked out of windows.
Assuming that a supervisor observed an employee with a
union representative or a union adherent , this would be a
questionable basis upon which to predicate a finding of
either union activity itself or company knowledge thereof,
especially where the employee was grouped with several
other employees. In any event, I credit Lubianski that she
did not so observe Chavez . In this regard , I note that Cha-
vez' testimony is somewhat unreliable since she does not
remember being absent on the day before her discharge.
Accordingly , absent sufficient evidence to support a find-
ing that the Respondent was aware of Chavez ' union senti-
ment , I conclude that the evidence will not support an
8(a)(3) finding as to Chavez.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f. Matilda Flores
Matilda Flores was employed as a collar setter in the
shirt department supervised by Lubianski. At the time of
her most recent employment , on April 16, as noted earlier,
she was asked by Lubianski if she belonged to the Union
and advised her that "they" did not want trouble with the
Union. Flores had previously been employed by the Re-
spondent twice for short periods in 1973 (Resp. Exh. 12).
On her employment card is the notation "Do not rehire."
After her second period of employment, she was neverthe-
less put on the payroll before the fact of her prior employ-
ment was discovered , whereupon she offered to quit, but
Lugo said, "Being that you are here now I said I 'm going to
give you 3 weeks' trial, see how you come out with your
production." on May 3, Lugo told Lubianski that she felt
that Flores could not make production and should be dis-
charged. Lugo did not so advise Flores on that Friday,
since she became busy, and on the following Monday, be-
cause Lugo was ill , it fell on Lubianski to advise Flores of
her discharge for lack of production . General Counsel con-
tends that the lack of production was a pretext , citing
8(a)(1) remarks directed to Flores to support this conten-
tion . Flores admittedly did not meet the employer's pro-
duction standards for the collar setting operation . Howev-
er, this deficiency alone would not appear to disqualify her
or make her unemployable since some 15 or 20 others of
the 125 in the department were not meeting Respondent's
standards . Some of them had been employed a number of
years and were still not meeting the standard . Upon these
facts, and in view of the 8 (a)(1) remarks noted earlier and
directed specifically to Flores, I conclude that Flores was
discharged for having joined the Union in its effort to or-
ganize the Respondent's employees.
g. Maria Aranda
Maria Aranda was employed in the shirt department as
a collar setter from February 1973 until her discharge on
April 18. In addition to having signed a union card, Aran-
da also secured authorization cards from some 50 other
employees. She was an active employee organizer and was
so named along with others in a telegram from the Union
to the Respondent, dated April 3. It is clear that Respon-
dent took a lively interest in Aranda's organizational activ-
ity as noted earlier in connection with her interrogation by
Gavlick upon instructions from Mervin.
On April 18, Aranda added certain longhand comments
to a company notice posted on the Respondent's bulletin
board. This was brought to the attention of Hertzel who
requested Aranda be brought to his office. Aranda admit-
ted writing on the notice and states that, during further
interrogation by Hertzel, she went upstairs and brought
back another employee, Elida Liedecke, to serve as a wit-
ness . She told Hertzel that he could then continue his ques-
tioning. At this point, according to Aranda, Mervin called
her a troublemaker and told her that she was fired and
began shouting at her to "get out" which Aranda testified:
"All right. I'm leaving. I hate that place that it stunk like
shit, that is all I said and I started to walk out." Aranda's
version is supported in its essentials by the testimony of
Liedecke. Mervin contends that, after discussing the matter
of the defaced notice with Aranda, she "just picked up"
and returned with Liedecke. Mervin also testified that he
said, "Young lady you have no right to leave this office
while we are talking to you and just ignore us." Mervin
further testified:
And she looked at me with daggers in her eyes, mad as
she could be. We were just trying to straighten her out,
what she can do and what she can't do. I said, "Now,
I want you to know and get it straight that my brother
and I are running this plant and you are not running
it." And she said to me, "You are doing a shitty job of
it." And I said, "Young lady, you are fired. Get your
things and get out of here." And that is all it was to it.
That's the whole story.
Present in the office at this time were Hertzel, Lugo, and
Scott, whose testimony substantially corroborates Mervin's
version. I credit Respondent's version of this incident and
conclude that while Respondent may have been pleased at
the prospect of being presented with an opportunity to rid
itself of an active union adherent, the reason that Aranda
was discharged was unrelated to her union activity. The
utterance of the vulgar expletive was, in these circum-
stances, sufficient justification for her discharge and not
merely a pretext to cover illegal Respondent motivation.
h. Rubina P. Rivera
Rivera had been employed by Respondent since 1966.
She held various jobs and worked in the company office
for some 3 weeks in January 1974. She was discharged on
or about June 5, 1974. Rivera testified that on the evening
of May 24 she and her husband went to Corpus Christi,
Texas, for the weekend and returned to San Antonio on
Monday afternoon, May 27. Rivera claims that she told
Lubianski that she was going to be absent, but Lubianski
called her to call in on Monday anyway. Rivera became
badly sunburned in Corpus Christi and was unable to work
the following week. Taylor concedes that calls were made
to the plant every day until Friday, advising Respondent of
her absence. Ruben Rivera, Rubina Rivera's husband, tes-
tified that he also called the plant on Friday and on Mon-
day, June 3, to explain that his wife was sick and at that
time was told "OK" although he cannot identify the person
to whom he spoke. Taylor denies that such a call was
made, but I credit Ruben Rivera in this regard. On Wed-
nesday, June 5, about 1:30 p.m., Rubina Rivera called the
plant and spoke to Taylor, who advised her that she had
been replaced and that someone had told him that she was
working for someone else.
Rivera had been an active union adherent. She had been
named by the Union as a member of the employee organiz-
ing committee in the union telegram to the Respondent
dated May 3, 1974.
Respondent contends that Rivera did not call in on Fri-
day, May 31, and that when 3 days had elapsed, Respon-
dent, as a matter of company policy, terminated Rivera.
Rivera, on the other hand, testified that she had previously
been absent for more than 3 days without calling in, as
recently as March 1974, when she was sick for an entire
FINESILVER MANUFACTURING COMPANY
week and called in only on the Monday. No disciplinary
action was taken against her at that time . She further testi-
fied that during this period Clayton or Lubianski called her
at home. Taylor also testified that exceptions to the 3-day
rule were in fact made where warranted , where the employ-
ee had a valid reason for his failure to call . It does not
appear that any effort was made to ascertain from Rivera if
she had an excuse for not calling in. Indeed , the decision to
terminate Rivera appears to have been made prior even to
speaking with Rivera on June 5.
I also note with respect to the 3-day rule itself, that such
rule was not followed during Rivera's absence in March or
she would have been discharged at that time since she
called only on Monday to report her illness. To exempt
employees from calling in every day during an extended
illness would appear to be reasonable in such instances. In
summary, the Respondent's prior treatment of Rivera's ab-
sences and the record as a whole support the conclusion
that there was substantial flexibility in Respondent's "3-
day rule ." Another significant factor in the disposition of
this matter is the testimony of Taylor himself . In this re-
gard the following exchange took place:
Q. (By Mr. Linton) Now Mr. Taylor, it is a fact,
isn't it, that the fact that you were aware that Rivera
was on the organizing committee colored your posi-
tion a little and kept you from being lenient in her
case? Is that right, sir?
A. Well I would be a big liar if I sat here and said it
didn't. Everybody would know it.
A. And that is-in fact, you did give that testimony
at the Texas Employment Commission hearing?
A. Yes I did, sure.
JUDGE DONNELLY: What do you mean "colored?"
WITNESS : That was the question I was asked also at
the Commission, if it had anything to do with my deci-
sion , I assume is what they mean.
JUDGE DONNELLY : Well did it?
WITNESS : I said yes, I would be a her (sic) if I said it
didn't.
In summary, upon examining the factors above and also
noting particularly the 8(axl) incidents involving Rivera
treated earlier, I conclude that her absence was a pretext
for the real motivation behind her discharge which was, I
conclude, her activity on behalf of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
eration 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.
V. THE REMEDY 11
659
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.12
I have found that Respondent discharged Rubina Rivera
and Matilda R. Flores for reasons which offended the pro-
visions of Section 8(a)(3) and (1) of the Act. I shall there-
fore recommend that Respondent make them whole for
any loss of pay which they may have suffered as a result of
the discrimination practiced against them . The backpay
provided for herein shall be computed in accordance with
the Board's formula set forth in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interot thereon at the rate of
6 percent per annum , computed in the manner prescribed
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and con-
clusions , and upon the entire record in this case , I hereby
make the following:
Conclusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging Rubina Rivera and Matilda R. Flores,
thereby discriminating in regard to their hire and tenure of
employment, in order to discourage membership in the
Union, the Respondent has engaged in and is engaging in
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
National Labor Relations Act, as amended , I hereby issue
the following recommended:
11 The extraordinary relief sought by the General Counsel in its brief is
not, in my opinion , warranted by my findings and General Counsel's re-
quests for such special remedies are hereby denied.
12 Charging Party urges that remedial relief should include a bargaining
order under the Gissel line of cases (N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 ( 1969). Such relief is deemed unwarranted where , inter aha, there
has been no showing of majority representation by the union among
Respondent's employees
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 13
Respondent, Finesilver Manufacturing Company, San
Antonio, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Creating impressions of surveillance , threatening,
harassing , intimidating , interrogating , or coercing employ-
ees in order to discourage membership in and activities on
behalf of Southwest Regional Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO, or any other la-
bor organization.
(b) Discharging employees, thereby discriminating in re-
gard to their hire and tenure of employment in order to
discourage membership in Southwest Regional Joint
Board , Amalgamated Clothing Workers of America, AFL-
CIO, or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Matilda R. Flores and Rubina Rivera im-
mediate and full reinstatement to their former jobs or, if
they no longer exist, to substantially equivalent employ-
ment , and make them whole for any loss of pay which they
may have suffered as a result of the discrimination prac-
ticed against them, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this recommended order.
(c) Post at its facility in San Antonio, Texas, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's au-
thorized representative, shall be posted by it 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 to ensure that said no-
tices are not altered, defaced, or covered by any other ma-
terial.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order what steps
have been taken to comply herewith.
IT Is FURTHER ORDERED that the complaints herein be dis-
missed insofar as they allege violations of Section 8(a)(3) of
the Act, and of Section 8(a)(1) of the Act, other than as
specifically found herein.
In the event no exceptions are filed as provided by Sec 10246 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.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "