Hicks Ponder Co.

National Labor Relations Board - Board Decisions

Dec 11, 1967

168 N.L.R.B. 806 (N.L.R.B. 1967)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hicks Ponder Company and Amalgamated Clothing
Workers of America, AFL-CIO. Cases
28-CA-1422 and 28-CA-1432
December 11, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 21, 1967, Trial Examiner James T.
Barker issued his Decision in the above-entitled
consolidated proceeding, finding that the Respond-
ent had engaged in and was engaging in certain un-
fair labor practices alleged in the complaint and
recommending that it cease and desist therefrom,
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed with respect to these allega-
tions. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel
and Charging Party filed cross-exceptions and sup-
porting briefs. The General Counsel also filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Examiner's Decision, the exceptions, cross-
exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as
modified below.
We do not agree with the Trial Examiner's find-
ing that during the August 3 conferences with em-
ployees Delgado, Meza, and Ortiz, Respondent
violated Section 8(a)(1) of the Act by creating the
inference that future card-signing activity by union
proponents would have to conform to Respondent's
standard of propriety.
The record shows that Mary Melendez, Respond-
ent's personnel counselor, received complaints
from two employees concerning alleged coercive
techniques used by employees Delgado, Meza, and
Ortiz to obtain signatures on union authorization
cards. Melendez brought these complaints to the at-
tention of Plant Manager T. J. McQuien. On Au-
gust 3, McQuien held individual, but procedurally
identical, conferences with Delgado, Meza, and Or-
tiz. At the conferences, McQuien t informed the em-
ployees that he had received complaints from other
employees about their being bothered or molested
into signing union authorization cards. McQuien
then read one of these letters of complaint to the
employees. McQuien informed the employees that
he was not conducting an official investigation at
that time, but that, while union representatives had
a right to obtain union support, the Company also
had rights and responsibilities to protect its em-
ployees. He told the conferees that he would be
forced to make an official investigation if he
received any more complaints, but that he did not
want the matter to reach that proportion. McQuien
did not impose any limit on the number or type of
solicitations which could be made to an individual
employee.
In our opinion, the foregoing remarks by Plant
Manager McQuien fail to show Respondent's intent
to circumscribe lawful union organizational activi-
ties. The remarks in question were prompted by
employee complaints of intimidation and harass-
ment by union organizers. They can only be viewed
as an attempt by Respondent to preserve plant
discipline by making it clear that coercion of em-
ployees would not be tolerated. In bringing this
matter to the attention of employees Delgado,
Meza, and Ortiz, McQuien specifically indicated
that Respondent recognized the Union's right to
solicit support from among the employees. He im-
posed no restriction upon the manner or type of sol-
icitation, other than to generally caution against en-
gaging in conduct designed to harass or intimidate
employees. In our judgment such a requirement is
not unreasonable. Accordingly, we find that
Respondent's conferences with employees
Delgado, Meza, and Ortiz did not violate Section
8(a)(1) of the Act and, in view of our findings
herein, we shall order that the complaint be
dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' McQuien spoke in English, and Production Foreman Hazael Alcala
interpreted into Spanish.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: Upon a charge filed
in Case 28-CA-1442 on August 26, 1966, and a charge
filed in Case 28-CA-1432 on September 15. 1966,1 the
Regional Director of the National Labor Relations Board
for Region 28, on December 28, issued an order con-
solidating cases, complaint, and notice of hearing alleging
' Unless otherwise specified all dates referred to herein relate to the
calendar year 1966.
168 NLRB No. 103
HICKS PONDER COMPANY
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended , hereinafter called the Act.
Pursuant to notice a hearing was held before me at El
Paso. Texas , on February 28, March 1 and 2. 1967. All
parties were represented at the hearing and were afforded
full opportunity to be heard , to introduce relevant
evidence , and to file briefs with me. The parties waived
oral argument and, on April 6. filed briefs with me.
Upon consideration of the entire record and the briefs
of the parties , and upon my observation of the witnesses.
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Hicks Ponder Company is a Texas corporation operat-
ing and maintaining a manufacturing plant at El Paso.
Texas. where it has been at all times relevant herein en-
gaged in the production of wearing apparel.
During the 12-month period immediately preceding the
issuance of the complaint herein. Respondent, in the
course and conduct of its business operations, manufac-
tured, sold, and shipped from its plant at El Paso, Texas,
to points outside the State of Texas finished products
valued in excess of $50,000. During the same period of
time, in the course and conduct of its business operations,
Respondent purchased, transferred, and had delivered to
its plant in El Paso, Texas, textile and other goods and
materials valued in excess of $50,000 which were trans-
ported to said plant and places of business directly from
States of the United States other than the State of Texas.
Upon these admitted facts I find that, at all times
material herein, the Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America,
AFL-CIO, hereinafter called the Union, is admitted to
be a labor organization within the meaning of Section 2(5)
of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this case is whether: (a) Respond-
ent violated the Section 7 rights of employees by deny-
ing them permission to respond to protected but antiunion
remarks of its representative made during the course of
meetings called by the Company, attended by employees,
and conducted during paid nonworking time, and (b)
whether Respondent violated Section 8(a)(1) and/orSec-
tion 8(a)(3) of the Act by suspending employees because
of their conduct at said meetings. The further issues are
whether Respondent (a) engaged in surveillance of em-
ployees, or gave the impression of so doing, and (b) vio-
lated Section 8(a)(1) of the Act by certain office inter-
views conducted with employees relating to their card-
signing activities.
2 As requested by the General Counsel, I take official notice of the
Board's Decision in Hicks-Hayward Company, 118 NLRB 695, wherein
the Board found the company had not violated Section 8(a)(1) of the Act
by conducting antiunion meetings of employees during working hours. In
B. Pertinent Facts
807
1. Respondent's operations
The Respondent's place of business is located at 500
West Overland in El Paso. It employs approximately 700
production employees. The entrance to the main produc-
tion building located at the 500 West Overland address
opens on to a public sidewalk. Across West Overland
from the main building is located the Company's general
offices and the employee cafeteria. Like the main build-
ing, the cafeteria is separated from West Overland Street
by a public sidewalk and the entrance and exit to the
cafeteria opens on to the public sidewalk.
Respondent's operations are under the direction of T.
J. McQuien, plant manager. Mary Melendez is the per-
sonnel counselor charged with personnel duties and with
the oversight of the personnel office. Her immediate su-
perior is Secretary-Treasurer Robinson. A Mr. Hamilton
is plant superintendent and Hazael Chalo Alcala is the
production foreman at the El Paso plant. McQuien
speaks only English whereas Mary Melendez and Cahlo
Alcala speak Spanish fluently.
2. Past labor relations history
The credited testimony of John Price, Respondent's
labor relations attorney, establishes that, for a period of
a year or two immediately preceding 1954, the Union
represented a unit of employees of Respondent's
predecessor, Hicks-Hayward Company. Subsequently,
in 1953 and 1954, the Union was decertified and has not
since demanded recognition or bargaining, although in the
intervening years, it has undertaken organizational ef-
forts. Commencing in 1954, John Price was retained as
legal advisor to Respondent and has served Respondent
and its predecessor company in the years subsequent to
1954. In the 13-year period commencing in 1954, Price
has had frequent occasions to render advice to individual
supervisors and employees of Respondent concerning
personnel practices. On at least one occasion, he has ad-
dressed Respondent's assembled employees in groups of
approximately 50 employees concerning their rights
under existing labor relations statues?
3. The leading union proponents
Ana Meza was at one time president of the organiza-
tion committee of the Union and at the time of the hearing
was a member of the committee of organization. She was
a leading proponent of the Union during its organizational
campaign of 1964 and in April 1964 was identified in a
telegram from the Union to the Company as the chairman
of the organizing committee of the Union.
At the time of the hearing, Celia Barrera was president
of the Respondent's committee of organization and Rosa
Delgado was vice president of the committee. Similarly,
at the time of the hearing, Manuela Contreras was a
member of the committee of organization and Carolina
Baca was active in behalf of the Union. Baca had been
vice president of the committee. Celia Barrera testified
that, at the time of the hearing and during 1966, the Union
the cited case, dealing with conduct during the calendar year 1957, John
Price, on behalf of the company, had conducted some 15 meetings during
working hours in the plant cafeteria, each of which meetings had been at-
tended by groups of 15 to 20 unit employees.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been active in attempting to organize the employees
of Respondent. Celia Barrera, Manuela Contreras, and
Carolina Baca testified that during 1966 they had passed
out union leaflets on the public sidewalk near the main
building of the plant. They testified that they had been ob-
served in this activity by supervision of the Company.
The parties stipulated that within the knowledge of
Respondent, union pamphlets were distributed at the
Hicks Ponder plant on April 13 and 27, May 4, June 8,
August 24, and September 14, 1966.
4. The August 3 conferences
a. Melendez receives employee complaints
Mary Melendez, Respondent's personnel counselor,
testified credibly that she received complaints from two
employees concerning techniques employed by em-
ployees Juanita Ortiz, Ana Meza, and Rosa Delgado to
obtain their signatures on union authorization cards.
Thus, Melendez testified credibly that a female employee
reported to her that she had "time and again" refused to
sign a union authorization card which employee Juanita
Ortiz had sought to have her sign. The complaining em-
ployee further reported to Melendez that Ortiz had come
up behind her and had pushed a bench against her and
that she had informed Ortiz, in substance, that this con-
duct would not convince her to sign a card.
Melendez further credibly testified that another female
employee, on a separate occasion, informed her that,
while she was having lunch in the company cafeteria, Ana
Meza had sought to have her sign a union authorization
card. When the employee informed Meza that she had al-
ready signed a card, Meza inquired who had given her the
card to sign . The complaining employee stated that Rosa
Delgado had done so and Meza left but returned with
Rosa Delgado who confronted the complaining em-
ployee, asserting that she had untruthfully stated that she
had already signed a card. The complaining employee
then informed Melendez that she signed a card to "get rid
of them." The employee further stated that she desired
the Company to know that she did not wish the Union to
represent her and that she had signed the card un-
willingly. The employee further informed Melendez that
Meza had repeatedly "sought to have her sign a card."
Mary Melendez further credibly testified that she
brought to the attention of Plant Manager T. J. McQuien
the reports that had been given her by these two em-
ployees. Consequently, it was decided to call Juanita Or-
tiz, Ana Meza, and Rosa Delgado to the office for a con-
ference. This was done on August 3. The meetings were
held in the office of Mary Melendez and were attended by
McQuien, Hamilton, Chalo Alcala, Margaret Perez, and
Melendez. At each meeting, McQuien spoke to the em-
ployees in English and Alcala interpreted McQuien's re-
marks to the employees in Spanish.
b. The office meetings
Delgado, Meza, and Ortiz were called to the office
separately . The meetings commenced with McQuien stat-
ing to the employees that the Company had received
complaints from employees relative to being bothered or
molested into signing union authorization cards.
McQuien then read the employees a letter from a female
employee to the effect that she had signed a union
authorization card through pressures exerted by union or-
ganizers and stating further, in substance, that she was
repudiating her authorization .3
After reading the letter, McQuien stated that he was
not making the letter available to the employees because
he was not conducting an official investigation at this
time, but that he was merely trying to inform the conferee
that the Company had received the complaint and that,
while the union representatives had their rights in en-
deavoring to obtain employees' signatures on authoriza-
tion cards, the Company also had some rights and respon-
sibilities to protect its employees. McQuien continued
that, when any complaint of the type in question was
made, it was his responsibility to look into the complaint.
Each of the three conferences was procedurally identi-
cal. However, the response of each of the conferees to the
remarks of McQuien and the reading of the letter was dif-
ferent. Thus, during the conference with Rosa Delgado,
while McQuien was reading the letter of complaint to
Delgado, Delgado interrupted to ask if the complaint had
been made specifically against her. Alcala answered in
the negative, stating that the Company was only making
her aware of the nature of the complaints that it had been
receiving. Delgado then asked the name of the person
making the complaint and McQuien stated that he would
not reveal the name of the complainant because he was
not conducting an official investigation. During the con-
ference, Delgado stated that, as a representative of the
Union in obtaining the employees' signatures on union
authorization cards, she knew the rights available to her
and the methods she could use in exercising these rights.
Additionally, Delgado observed that she would not sign
anything that she did not want to sign and stated that, as
a consequence, she did not feel that the complainant in
executing the union authorization card had done anything
that she did not want to do. McQuien then stated that, if
he continued to receive complaints of the nature which he
had outlined to Delgado, the Company would be forced
to make an official investigation of the complaints.
McQuien stated that he did not want to have the matter
reach this proportion and he was thus making Delgado
aware of the complaints that the Company had received
so that she would act accordingly.
With respect to the conference with Juanita Ortiz, after
McQuien had finished reading the employee letter of
complaint to Ortiz, Ortiz observed that it was possible for
a supervisor who was hostile to an employee to lodge a
complaint with the office merely by having a fellow em-
ployee complain to supervision concerning an employee
to whom the supervisor was hostile. McQuien informed
Ortiz that, if she made an official complaint, the Company
would investigate the complaint just as it would any other
complaint from any other employee. At this juncture,
Mary Melendez observed that Ortiz had made a com-
plaint about her physical condition as it related to her
ability to perform work assignments and that the Com-
pany had investigated and resolved the matter to the
satisfaction of Ortiz. Melendez further observed that, in
I In his testimony McQuien invoked the word "coaxed" as descriptive
of the persuasive conduct complained of by the employee. However,
McQuien conceded this was his terminology and the total context of his
testimony reveals the alleged conduct was purported to be of a more in-
sistent nature.
HICKS PONDER COMPANY 809
a similar manner, the Company would do the same thing
with any complaint that came to the office.
During the conference with Ana Meza, Meza observed
that she knew her rights with respect to her card-signing
activities and further denied that she had bothered any
employee excessively. Meza, however, observed that
several employees had come back to her after they had
signed union authorization cards and asked for the return,
of their card. Meza stated that she had informed the em-
ployees that she could not return the card because the
cards were "union property." Meza further stated that
she had, however, informed the employees of the steps
they could take if they desired to retract their signature.
Further, referring directly to the written complaint which
McQuien read to her, Meza stated that the complaint was
of no value because it had not been notarized 4
5. Alleged impression of surveillance
Eloisa Orozco testified that, in early August, she, Rosa
Delgado, and several coworkers were going to lunch and
Rosa stated, "they took me to the office," whereupon
Orozco asked, "for being a unionist?" Delgado answered
in the affirmative and observed that "they told me we had
forced a girl to sign a card." Orozco further testified that
at this point Mable Garcia, a supervisor, approached her
and said, "Eloisa, in reference to that, I want to talk to
you. This morning, Chonca [a line supervisor] spoke
quite a bit with me." Garcia went on to observe that
Chonca had asked her if she was friendly with Orozco;
Garcia said that she had answered in the affirmative. Gar-
cia went on to relate to Orozco that Chonca inquired
whether she knew if Orozco were a union leader. Garcia
answered that she did not know. Chonca stated that Gar-
cia should be very careful with Orozco and with the rest
of the workers. She further stated that, if she saw any of
the employees signing cards or bothering coworkers, that
she should report this activity to Mr. McQuien or to the
line supervisor.
6. John Price addresses employees
a. The speeches
On September 8 and 9, Respondent's labor relations
attorney, John Price, made a series of speeches to
Respondent's employees which the General Counsel
concedes were within the protection of Section 8(c) of the
Act. Pursuant to plan, the employees were assembled in
meetings of approximately 45 minutes' duration in groups
of approximately 50. John Price did not speak from
prepared notes or text, but gave substantially the same
speech at each of the meetings. The speeches were
recorded. Price spoke in English and the speeches were
translated idiomatically into Spanish by either Chalo Al-
cala or Mary Melendez.
In his speech, Price traced in some detail the history of
the Union's organizational and representation activity at
Hicks Ponder and in the El Paso area. Without mention-
ing the name of the Union specifically, he referred to
union activities which had transpired and were transpir-
ing at Hortex , Topnotch , and Glenshore garment fac-
tories in the El Paso area at which the Union had or was
carrying on organizational activity.
With respect to Hortex, Price stated that the Union had
signed a collective -bargaining agreement , but that the
benefits at Hortex were merely comparable to those
benefits to be found at Hicks Ponder. Price further stated
that the workers at Hortex had to pay the Union whereas
the employees at Hicks Ponder did not have to do so.
In similar vein, he stated that the employees at Top-
notch had to pay the Union, but that the overall benefits
at Hicks Ponder were superior to those at Topnotch, and
yet the employees at Respondent's operation did not have
to pay the Union.
With respect to Glenshore, Price observed that a strike
was in progress at the Glenshore plant and that pickets
were patrolling. He further stated that the management of
Glenshore had informed Respondent's management that,
while the strike was going on, the factory was operating
normally.
During the speeches, Price spoke of union dues and
caused to be projected on a screen a picture of a printed
union authorization card. With specific reference to the
first three sentences printed thereon, he emphasized the
necessity of employees paying dues and initiation fees to
the Union. In his speech to some of the groups, he made
no reference to specific amounts of dues required to be
paid, but, in other groups, he specified the amount as
being either $3 or $4. In further reference to the dues to
be paid, Price said that the Union wanted the money and
would make any promises that were necessary to get the
money. He stated that the money would ultimately find
its way to the Union.
In conjunction with his remarks relating to union dues
and to the card which Price had caused to be projected on
the screen, Price displayed a union pamphlet which had
been circulated a year or two previous wherein the claim
was made that the Union would not charge dues, Price
had circled the portion of the pamphlet wherein this as-
sertion had been made and displayed the pamphlet to the
employees and commented concerning it.
4 All of the foregoing is predicated on a composite of the credited
testimony of Chalo Alcala and Mary Melendez as supported by that of T.
J. McQueen, Rosa Delgado, Ana Meza, and Juanita Ortiz. To the extent
that the testimony of Delgado, Meza, and Ortiz is contrary to the forego-
ing findings , I do not credit their testimony . In their testimony concerning
these conferences, Delgado, Meza, and Ortiz each demonstrated a
marked tendency to substitute for an objective recounting of the words
spoken by McQuien and other company representatives their own subjec-
tive interpretation of the meaning of the words and statements spoken.
Moreover, I further specifically reject certain of their testimony Thus,
with respect to the conference held with Delgado, Delgado testified that,
in response to her observation that no one could force her to sign any
paper that she did not desire to sign, Alcala answered that it would not be
necessary for her to resort to the use of a gun or a knife to obtain a signa-
ture, but that there were other methods of obtaining a desired end. All
other participants in the conference who testified denied that these re-
marks transpired and I credit them.
Further, I do not credit the tesimony of Ortiz offered in amplification of
the comment of Melendez at the Ortiz conference relating to Ortiz' work
complaint , that it was not until she had three times spoken with Melendez
concerning her complaint that action was taken to rectify the matter about
which she had complained.
With respect to the conference with Meza , she testified that, after the
letter was read to her, McQuien advised her that she should not be
"afraid" because the Company was not going to do anything directly as a
result of the written complaint that had been lodged but that the Company
was keeping the complaint "in case it is necessary" to take action. This
observation has no other record support , and I do not credit Meza in this
regard.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, in speaking to the employees, Price made
the assertion that some of the female employees in the
plant were paid union organizers. He further stated, in
substance, that, while some of the employees who sup-
ported the Union did so voluntarily and without compen-
sation, some of their fellow workers were being paid by
the Union for their organizational activities.
Further, during the course of his speech, Price made
further reference to the strike then in progress at the
Glenshore plant in El Paso and invited the employees to
observe first hand at the Glenshore plant the possibility
of strikes and picketing that could result from unioniza-
tion.
Additionally, during the course of his speech, Price
made reference to "tricks and threats" to which the
Union resorted in its organizational efforts. With respect
to "tricks" resorted to by the Union, Price asserted that
in soliciting employees to execute authorization cards on
behalf of the Union, the individual soliciting the signa-
tures would hold a stack of union authorization cards in
his hands and demonstrate to the employee, whose signa-
ture was being solicited, the signed authorization card of
an employee which, together with one or two other ex-
ecuted cards, was placed on the top of the stack of cards.
Although all other cards in the stack were blank and
unexecuted, the solicitor through words and actions
would give the impression that all cards in the stack had
been executed and would seek thereby to have the em-
ployee join with other employees in authorizing union
representation.
With respect to asserted threats, Price stated to the em-
ployees that representatives of the Union would threaten
nonsigners with the loss of their jobs in the event the
Union organized the plant.5
Price credibly testified that his comments evoked ver-
bal reactions on the part of certain employees in at-
tendance at the meetings . He stated that the subjects
which seemed to evoke these reactions were his
references to union dues, paid organizers, and the strike
at Glenshore.
b. The meetings of September 9
(1) Precautionary measures taken
John Price credibly testified that, as a result of the
several years of experiences which he had had in dealing
with the Union on behalf of employers in an organiza-
tional context and as a further result of his knowledge of
the relationship and predilections of certain employees
toward the Union, he undertook precautionary prepara-
tions with respect to certain of the meetings.
In this regard, the meetings of the first day transpired
without incident. However, on the morning of the second
day as John Price and Mary Melendez, accompanied by
a group of employees, were walking from the main build-
ing to the company cafeteria where the speeches were
5 Mary Melendez testified credibly that, in the month of August, a
female employee had reported to her that union representatives in the em-
ploy of Respondent had attempted to ridicule and embarrass her into sig-
ning the union authorization card. This employee informed Melendez that,
in an effort to induce her to execute a card , the union representatives
resorted to both the "trick" and the "threats" to which Price in his speech
to the employees referred. The employee who reported this incident to
scheduled to be conducted (and where meetings had been
conducted on the previous day), Antonia Pena, an em-
ployee of the Union, stood on the public sidewalk and
took pictures of Price and the employees. As Pena
snapped the pictures, there arose from a small segment of
the employees - approximately 10 in a group of 50 - a
wailing sound and the employees displayed a certain exu-
berance and comradery.
(2) The Delgado meeting
Rosa Delgado attended one of the first meetings on the
morning of the second day. When she entered the
cafeteria, Price observed that she seated herself in a front
row in the cafeteria and Price informed Mary Melendez,
who was to interpret for him during this meeting, that
Delgado would attempt to disturb the meeting. He in-
structed Melendez to speak "as management" rather than
interpreting for him as a spokesman.
In the meeting which Rosa Delgado attended, Price
commenced the meeting by identifying himself as the at-
torney for the Company who had been asked by the Com-
pany to speak to the employees concerning their rights
with reference to card signing. As his speech progressed,
Price referred to "the card of truth," whereupon Delgado
commenced to call out "mentiroso," which in Spanish
means "liar ." As Price continued to talk - his comments
being translated from English into Spanish - Delgado in-
terrupted a number of times. Melendez then spoke
directly to Rosa Delgado over the microphone, asserted
that she was being discourteous, and asked her to treat
Price with courtesy as he had been employed by her Em-
ployer and that he was due the courtesy that she would
extend to a guest in her own home. Thereafter, Delgado
remained silent for a period of time and the talk
proceeded. When Delgado interrupted again, Price stated
to the audience that Mrs. Delgado was seated at the front
table in the audience and that he had known her for a
number of years. Price stated that he believed in the
"American way" and asserted that everyone was entitled
to his own opinion and observed that Delgado was sin-
cere in her belief. However, Price requested that she stop
interrupting and listen to him. He further stated that, if
Delgado did not believe what he was saying, that this was
her privilege, but he again requested that she ,e quiet and
permit him to finish his talk because he had a number of
groups to speak with that day. Thereafter, during the
balance of Price's speech, Delgado interrupted from time
to time and, at the conclusion of Price's speech, Mrs.
Delgado asked to be heard. Price responded saying,
"Mrs. Delgado, you seem to have had a lot to say during
this meeting. I will now hand you the microphone and you
may say what you will." When Delgado was handed the
microphone, she asked if Price belonged to a bar associa-
tion. She asserted that members of the bar association
were required to pay dues and expressed the opinion that
Melendez asked Melendez if it were true that she would lose herjob in the
event she failed to sign a union authorization card and the Union was suc-
cessful in organizing the plant.
Melendez further creidbly testified that, as a result of this incident, she
conferred with Price and informed him that, in her opinion, it would serve
a useful purpose if management could-speak to the employees and advise
them concerning their card -signing rights
HICKS PONDER COMPANY 811
a bar association was equivalent to a union. Price did not
respond to this and the meeting ended on this note. e
(3) The Orozco meeting
Eloisa Orozco attended the next meeting. Melendez
served as translator for Price who spoke to the assembled
employees. Soon after Price had commenced his remarks
to the employees, Orozco started booing Price and calling
out "mentiroso." As in the previous meeting, Melendez
asserted that Price was at the meeting at the invitation of
their Employer and that the employees owed Price the
courtesy of listening to him even if they did not feel as he
did about the matters which he was discussing. Melendez
informed Orozco that she should conduct herself in a
"lady-like manner." However, Orozco continued inter-
rupting as before.7 Thereupon, Price addressed Orozco
directly and asked her to extend the courtesy of listening.
Price stated that he recognized her right to her own be-
liefs and opinions but requested that she permit him to
finish. Price then continued with his speech. However,
Orozco continued the interruptions and Melendez there-
upon said to her,"Eloisa, I will not ask you again , please
be quiet, please do not interrupt and let us finish." She
continued to interrupt , however, and Melendez again ap-
pealed to her. However, when she renewed her interrup-
tions, Melendez instructed Orozco to leave the meeting."
Thereupon, McQuien walked toward Orozco and mo-
tioned for her to leave the meeting. She left and was ac-
companied to the main building by Chalo Alcala.'
(4) The Meza im Lting
Ana Meza attended the next meeting. As Ana Meza
entered the cafeteria with the group of employees which
attended, Price, through Melendez as interpreter, ad-
dressed Meza.
To Meza, Price stated that in the previous meeting he
had experienced difficulty with Eloisa Orozco interrupt-
ing and he further asserted that it had been necessary to
ask Orozco to leave. Price stated to Meza that they had
been friends for a number of years and that he would ap-
preciate Meza's cooperation in not interrupting because
he did not want to embarrass her by asking her to leave as
he had done with Orozco. Meza answered "I will do what
I have to do and you will do what you have to do." She
then left the front of the cafeteria and went to the rear of
the room and sat down.
As the meeting commenced and Price started his
speech, which was translated by Chalo Alcala, Meza,
while seated, began to raise her hand and continued to do
so while Price continued to speak. As Meza raised her
hand, the employee next to her endeavored to force her
hand down. As Price reached the point in his speech
where he referred to the union cards, Meza arose from
her seat and started to talk from the rear of the room. She
was asked by Mary Melendez to be quiet and to sit down.
As Price continued his reference to the cards, Meza as-
serted that what he was stating were "lies" and were not
true. She came from the rear of the room to the front of
the room and stood between Price and Mary Melendez
and grasped the microphone and started to talk into the
microphone. She stated that she was better qualified than
Price to conduct the meeting and stated that she knew
"what was going on" and that what Price was saying were
lies. Thereupon, McQuien requested that she sit down.
Melendez also voiced the request and asked that she stop
interrupting. At this point, Price spoke into the
microphone stating that he was certain that Meza was sin-
cere in defending her beliefs but Price stated that he felt
that he should be allowed to speak. Meza defied the
requests to leave the meeting and stated that if the Com-
pany desired to have her leave they would have to eject
her because she was not going to leave and permit "the
telling of lies" to continue. At this point, Price observed
that it was useless to continue the meeting and the meet-
ing was dismissed.10
(5) The Barrera meeting
Celia Barrera attended the next meeting . When she en-
tered the cafeteria, she took a position in the rear of the
room and did not sit down. She inquired whether she
would be allowed to speak and to ask questions. When
she was informed that she would not because the time al-
locable to this meeting was too brief and that it was
Price's desire to complete all of the meetings that day,
Barrera stated that she would not sit down and would not
6 The foregoing is predicated principally on the credited testimony of
Mary Melendez as supported in some aspects by the credited testimony
of John Price and Rosa Delgado. The testimony of Rosa Delgado reveals
that she interrupted the meeting on at least four occasions Delgado's
testimony suggests that she interrupted Price in his remarks when he
made references challenging the value to employees of the Union, when
he spoke concerning "card of truth," when he asserted some of the em-
ployees who were assisting the Union in its organizational efforts were
receiving compensation from the Union, and when he made reference to
Glenshore pickets looking sad in the performance of their picketing duties
in the rain Additionally, Delgado conceded that she interrupted on "some
occasions "
' Alcala credibly testified that Orozco's initial interruption came at a
point in Price's speech wherein he referred to the card of "truth" and the
card of "concealment." He further testified that there were several sub-
sequent interruptions and that the interruptions became most manifest
when Price made reference to some of the union proponents receiving
compensation from the Union and when he addressed himself to union ac-
tivities conducted in the El Paso area.
8 With respect to this instruction, Melendez testified that Orozco "was
asked to leave." Melendez further testified that, in requesting employees
to leave the meetings in question , she instructed some of them to "depart"
or "leave" whereas in some instances she asked them to "please leave
from this meeting."
" The foregoing is predicated principally on credited testimony of Mary
Melendez as supported by that of Chalo Alcala and John Price.
10 The foregoing is predicated on the credited testimony of Chalo Al-
cala and Mary Melendez as supported by that of John Price and T. J.
McQuien I credit the testimony of Ana Meza to the extent that it is con-
sistent with the foregoing findings.
I do not credit the testimony of Meza, which receives no other record
support, to the effect that, in his remarks to the group concerning Ana
Meza, Price stated , "please, please forgive Ana because she is sick "
Meza further testified that , in being requested by supervision to leave
the meeting, she was told to "get out ." The testimony of record , including
the testimony of Mary Melendez and of Chalo Alcala - the latter pertain-
ing specifically to this meeting - reveals that in some instances an impera-
tive form was used in directing or requesting employees to leave the meet-
ing. Accordingly , I view Meza 's testimony as being not inconsistent with
the foregoing findings.
Further, in her testimony , Ana Meza testified that , in the preliminary
discussion which Price and Melendez had with her prior to the com-
mencement of the meeting, Melendez indicated to her that Orozco had
been asked to leave because she had not behaved like a lady. Meza in-
terpreted this remark as having a derogatory connotation . However, in
consideration of the testimony of Mary Melendez, I am convinced that
this was not the connotation and no affront was intended.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listen unless it was guaranteed to her that she would have
the right to speak. At this point, Mary Melendez, who
served as interpreter for Price at this meeting, said, "Very
well, Celia, you may leave, if you do not wish to listen."
She answered, "I do not want to leave, I do not want to
leave, I want to stay and listen." Melendez then stated
that Barrera could stay, but that she must sit down. How-
ever, Barrera reiterated that she would not sit down and
would not leave. She stated that she would not leave un-
less she was told to do so and, on the other hand, that she
would sit down if she was informed that she would be per-
mitted to ask questions. Melendez answered, "Celia, I am
giving you a direct order to sit down and be quiet." Bar-
rera answered, "I will not sit down, I will not be quiet,
and I will not listen." She then amplified her remarks by
saying further, "We will not listen to him unless I am al-
lowed to speak," Melendez then addressed Barrera say-
ing, "Celia, I am giving you a direct order to leave this
meeting." Barrera answered that she would not leave and
Melendez again addressed Barrera saying, "I will ask you
once more, Celia, will you leave voluntarily?" Barrera an-
swered that she would not leave voluntarily. Melendez
stated that there was a police car outside and asked Bar-
rera if she would like to have the police come and escort
her out. Barrera answered, "Let them escort me out, I
will not leave voluntarily." Barrera then turned to the
group and stated to the group that they were "fools" if
they listened to Price and if they permitted themselves to
be tricked by Price and by Mr. Ponder. She stated also
that the Company had no status to "step all over" the em-
ployees, and asserted that the employees also had rights.
At this juncture, a policeman entered the cafeteria and
escorted Barrera out of the room. As she left the
cafeteria, she stated to the assembled employees, "Any
of you here who want to leave with me may do so. It is
your right to leave." Melendez said, in response, "Yes,
anyone here that does not wish to listen is free to
leave.""
(6) The Baca-Contreras meeting
The next meeting was attended by Carolina Baca and
Manuela Contreras. At this meeting, Price commenced
with a preliminary statement regarding the purposes of
the meeting and with respect to his own identity as a
representative of the Company. As he reached the point
in his speech where he referred to the union dues and the
costs incident to belonging to the Union, Baca interjected
that what Price was stating was a lie. Similarly, at this
juncture, Contreras raised her hand and stated that the
Union did not charge a "tax" but stated further that the
11 The foregoing is predicated on the credited testimony of Mary
Melendez as supported in minor aspects by that of T J McQuien. I also
credit the testimony of Celia Barrera to the extent that it is consistent with
that of Melendez. The testimony of Barrera , in ultimate aspects, supports
that of Melendez with respect to the substance and order of the verbal
exchanges which transpired at the meeting However, unlike Melendez,
Barrera, in her testimony , tacitly denies that as she was leaving the
cafeteria under escort, she invited other employees to leave with her I
credit Melendez with respect to this discrepancy.
With respect to the presence of police at or near the scene of the
cafeteria meetings , Mary Melendez and John Price testified credibly that
during the morning meetings, they had observed the presence of Antonia
Pena near the cafeteria entrance in his capacity as a photographer of the
ingress of supervision and employees into the cafeteria Price further
testified he observed Pena during the course of the subsequent meetings,
peering through the cafeteria windows which opened onto the adjoining
Union did charge a "fee." Contreras observed that the
charge did not become effective, however, until a con-
tract had been executed and the employees had been
receiving benefits. Contreras also observed that the tax
was not paid to the Union but to the Government.
At this point in the meeting, Mary Melendez, who was
interpreting for Price, asked Baca and Contreras to be
quiet and asked them please not to interrupt. Melendez
further asserted that there was not time for interruptions
and she asked the employees to permit Price to speak.
Contreras answered that the employees too had a right to
speak, and Baca also made an observation at this junc-
ture. Melendez reiterated her request that the employees
permit Price to speak and stop interrupting. Contreras
and Baca again started to comment, and, at this point in
the meeting, Melendez directed them to leave the meet-
ing. Both Baca and Contreras declined to do so and Con-
treras added, "They can take me out if they want, I am
not leaving." During the events described, Contreras and
Baca were shouting, "mentiroso" and in other forms as-
serting that Price was "a liar" and what he was saying
were "lies." McQuien then went to Carolina Baca and
escorted her from the cafeteria. He then walked up to
Contreras and stood by her, and, at this point, she com-
mented that, if they wanted her to get out, they would
have to take her out, Further, she addressed Price chal-
lenging him to "come and get [her] out." Thereupon,
McQuien took her by the arm and led her out of the
cafeteria.12
7. The disciplinary suspensions
On September 9, Ana Meza, Celia Barrera, Manuela
Contreras, and Carolina Baca were suspended from their
employment for 10 days. They were informed of their
suspension in separate conferences held in the office of
Mary Melendez, which conferences were attended by
Melendez, McQuien, Hamilton, and Alcala.
Ana Meza was the first to be called into the office.
McQuien spoke to her in English and his remarks were
translated into Spanish by Melendez.
Meza was summoned to the office by Alcala and when
she reached the office she was informed by McQuien that
she was being laid off for 10 days for misconduct in the
cafeteria, including her rudeness and her failure to obey
an order to be quiet, to leave when ordered to do so, and
for her insubordination and failure to obey Melendez'
order. McQuien added that Meza could return at the end
of 10 days if she wished to continue to work for the Com-
pany. Meza did not await Melendez' translation of
McQuien's remark, but answered directly by asserting
public sidewalk Price testified that he observed Pena peering through the
windows on several occasions and consequently instructed Mary Melen-
dez-or some other representative of the Company to call the police and
request them to remove Pena. Price and Melendez further testified that
these activities of Pena transpired in the morning and that the meeting
from which Barrera was ejected under police escort, similarly occurred in
the morning hours.
Pena denied having peered through the cafeteria windows or having ob-
served through the cafeteria windows the proceedings which transpired in
the cafeteria. Further Pena testified, in substance, that the windows were
of a height too great to permit him to gain access to the windows through
jumping or climbing up the side of the building, as Price speculated that he
had done
12 The foregoing is predicated principally on the credited testimony of
Mary Melendez as supported in some aspects by that of Carolina Baca
and Manuela Contreras
HICKS PONDER COMPANY 813
her intention to return. At this point, she left the office
and returned to her work place to obtain her personal
belongings. 13
Ana Meza further credibly testified that after she
reached her place of work and was assembling her per-
sonal belongings, Alcala approached very near to her and
observed her actions. Meza testified that as she obtained
her handbag preparatory to leaving, Alcala asked if the
one which she had in her possession were her handbag.
Meza answered in the affirmative and further requested
Alcala to stop watching over her, asserting that she was
"not going to take anything."
Meza further testified that, as she made her exit from
the plant, Alcala walked very close to her and she again
disclaimed the necessity of being watched after. She
requested Alcala to get away from her. Finally, as she
walked toward the exit of the plant, she requested that Al-
cala walk ahead of her. He did not do so and, as a con-
sequence, Meza ran from the plant.
Celia Barrera was next called to the office. Barrera had
been summoned to the office soon after being ejected
from the cafeteria meeting. She waited alone in the office
of Mary Melendez for a period of time until Melendez
and the other supervision - the same as had participated
in the conference with Meza - returned to the office. As
Melendez entered her office, she observed Barrera and
shook her head at Barrera. Barrera said, in English,
"Mary, I sorry." Melendez responded, in Spanish, to the
effect that she had not expected Barrera to have behaved
in the manner she had. Thereupon, McQuien speaking in
English through Alcala as interpreter, informed Barrera
that she was being suspended for 10 days because of her
misconduct in the cafeteria.14
At the end of the conference, Alcala accompanied Bar-
rera to her work station. Pursuant to Barrera's request,
Alcala gave her credit for work that it had been impossi-
ble for her to complete and he thereafter accompanied
Barrera to the door of the plant.
The next meeting was with Manuela Contreras.
McQuien spoke in English and Melendez translated for
him. Contreras was informed that she was being
suspended for 10 days because she had disobeyed an
order. She asked the nature of the order which she had
disobeyed and Melendez answered that she had dis-
obeyed an order to be quiet. Contreras answered that she
had not been instructed to be quiet, but that she had been
told to sit down. She further stated that she had not been
standing up, but that on the contrary she was sitting
down. Melendez responded that the order given her was
to leave. Thereupon, Alcala interjected that Contreras
had been rude to a visitor. Contreras was instructed that
she was being laid off for 10 days but that she could
return at the end of the period if she desired to continue
to work for the Company.' 5
Contreras credibly testified that upon leaving the meet-
ing she went to her place of work, gathered her personal
belongings, and left the plant.
Carolina Baca was the last employee with whom
McQuien spoke in conference that day. She was informed
that she was being suspended for 10 days without pay for
disobeying orders and for insubordination. Baca said
nothing but left the office and gathered her personal be-
longings and left the plant. 16
8. The postsuspension interviews
At the end of their 10-day suspension, each of the em-
ployees returned to work at Respondent's plant. Prior to
assuming their actual duties each was interviewed in the
office of Mary Melendez. Each employee was called into
the office separately and McQuien read a brief prepared
statement to the employee, which was interpreted in
Spanish by Alcala. Mary Melendez and Superintendent
Hamilton were also present.
McQuien started the meeting by informing the em-
ployee present that he was going to read from a piece of
paper so that the employee would know the reason why
she had been laid off. McQuien stated that the employees
had been suspended for their misconduct in the cafeteria
meetings arising from their refusal to obey orders of su,
periors and because they had treated a visitor of the Com-
pany with disrespect. McQuien stated that if these ac-
tions were repeated the employee would be discharged.17
C. Recapitulation and Conclusions
1. The setting
Respondent is an employer engaged in the production
of wearing apparel in the city of El Paso, Texas. In the
production process Respondent employs approximately
700 employees, some of whom reside in El Paso and im-
mediate environs, and some of whom reside in Juarez,
Mexico. For the most part, the employees are not truly
bilingual and speak and understand Spanish to the practi-
cal exclusion of English. The population of the combined
El Paso-Juarez area is approximately 600,000.
For a period of approximately 13 years, since its 1954
decertification, the Amalgamated Clothing Workers have
engaged in organizational efforts among Respondent's
employees. At relevant times the Union has been en-
deavoring to organize Respondent's employees and has
distributed pamphlets to employees and has conducted
card-signing activities at the plant premises.
i'{ The foregoing is predicated on a composite of the credited testimony
of Ana Meza and Mary Melendez as supported in minor apsects by the
testimony of Chalo Alcala and T. J. McQuien.'
14 The foregoing is predicated on a composite of the credited testimony
of Mary Melendez, Chalo Alcala, and Celia Barrera. I do not credit the
testimony of Barrera, denied by Melendez and Alcala, to the effect that,
upon entering her office , Melendez addressed Barrera and said , "Celia, I
am very sorry for what has happened; you have a good record and I feel
sorry."
'' The foregoing is predicated principally on the credited testimony of
Manuela Contreras. I credit Contreras' testimony to the effect that
Melendez and not Alcala translated at the meeting . I am convinced that
Melendez is inaccurate in her recollection with respect to this detail of the
meeting. I have carefully evaluated the contents of the pretrial affidavit of
Manuela Contreras which was introduced into evidence and portions
which were subject of cross-examination of Contreras, and am convinced
that the segment of her affidavit which , at first blush , appears to be incon-
sistent with her record testimony, was not actually so, but related to the
postsuspension conference which was held upon Contreras' return to
work.
'' The foregoing is predicated on the credited, undisputed testimony of
Carolina Baca. I have evaluated her testimony on direct examination
against that on cross-examination , including the consideration of state-
ments contained in her pretrial affidavit. The foregoing findings are based
upon her corrected testimony on cross-examination.
it The foregoing findings are predicated on a distillation of the
testimony of the four employee participants in the conference and that of
Chalo Alcala and T. J. McQuien. The interview with Carolina Baca was,
without incident whereas, during their interviews, Ana Meza, Celia Bar-
rera, and Manuela Contreras entered into some disputation - of no par-
ticular relevance under the issues framed - over the correctness of the
company characterization of their behavior.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In late July or early August, Respondent received com-
plaints from employees concerning assertedly objection-
able conduct of employees acting in support of the Union,
relating to techniques employed by the union advocates
to induce employees to execute union authorization
cards. Thereafter, Respondent conferred privately with
the four union advocates against whom complaints had
been leveled, and subsequently scheduled a series of
meetings, to be conducted by its attorney and labor rela-
tions adviser, John Price, at which meetings employees'
rights with respect to joining the Union and executing
union authorization cards would be aired. The meetings
were held on September 8 and 9 and were conducted in
the plant cafeteria, separated from the Respondent's
production facilities by a public street. Each meeting was
of approximately 45 minutes' duration. The employees
were assembled in groups of approximately 50. Price ad-
dressed them in English and his remarks were translated
into Spanish by a personnel representative. Each speech
was substantially identical. Although antiunion in tenor,
the General Counsel concedes that each speech was non-
coercive and protected by Section 8(c) of the Act.
Exclusive of ingress and egress time, approximately 14
hours of normal working time during the 2-day period ap-
pears to have been devoted to these speeches. Employees
were compensated for the time devoted to attending the
meetings at which the speeches were delivered.
The meetings of the first day transpired without in-
cident. Four of the meetings of the second day were
marred by disruptions, when at each of the four meetings,
an employee, or in one case two employees, identified as
leading proponents of the Union , verbally excoriated
the speaker with shouts of "liar"; otherwise challenged
the truthfulness of certain of his statements; disobeyed
the requests and orders of supervision to cease their
disruptions; and, by the foregoing, generally impaired the
continuity of the speech in its translation into Spanish
from the English language. In this atmosphere and con-
text, requests of four employee union proponents (of-
ficers and former officers) to answer or respond to em-
ployer allegations and comments were either wholly or
substantially foreclosed, and they were subsequently
disciplined for conduct arising out of the meetings.
2. The alleged deprivation of opportunity for response
The General Counsel contends that by denying em-
ployee requests to respond to remarks delivered on behalf
of Respondent, Respondent violated the rights guaran-
teed employees under Section 7 of the Act. The General
Counsel does not contend Respondent was under obliga-
tion to provide equal time for response. Rather the
General Counsel asserts that the restriction of the oppor-
tunity during the nonworking time encompassed within
these meetings for any response ran counter to the Act.
This is so, the General Counsel contends, because -
analogizing the meeting time to paid lunch hours - the
prohibition against the right of employees to discuss self-
organization is not here shown to have been justified by
considerations of production, discipline, safety, or similar
legitimate employee interest that might justify the
restriction;18 and because of the existence of impedi-
ments to easy access on the part of the Union to em-
ployees arising from plant location, community charac-
teristics, and the nature of the industry.
The General Counsel does not rest its claim of viola-
tion on the breach of any existing no-solicitation rule. No
representation election was pending.
In advancing a special circumstance contention, the
General Counsel perforce prescinds from advocating the
per se proposition that in an organizational, as contrasted
to preelection , context employers engaged in manufactur-
ing who address assembled employees on company
premises during nonworking time, must, upon request,
grant an opportunity for prounion response.11
I find that neither by foreclosing to the four employee
proponents of the Union the opportunity at the meetings
to respond to the speech delivered or in subsequently
disciplining the four employees for their conduct at the
meeting did Respondent violate the Act.
Initially I find that, in the circumstances of the relevant
meetings, Respondent was under no statutory obligation
to accord the employees the opportunity to speak. In
N.L.R.B. v. United Steelworkers of America, CIO
[Nutone, Incorporated], supra, the U.S. Supreme Court
warned against the application of mechanical answers to
the solution of complex problems of labor-management
relations. While there is surface logic in the analogy
which the General Counsel draws between paid lunch
hours and the meetings here in question and while it is
recognized that limitations upon the employees' rights to
free discussion of matters or organizational interests are
to be sparingly applied by the Board seeking to achieve a
balance between the legitimate interests of employees
and management,20 to view in the abstract, and separate
from its contextual moorings and atmosphere the
proscription here imposed by the Respondent, would be
to engage in the very mechanistic practice against which
the highest tribunal in the land has warned.
Salient throughout the record of this case is the con-
spirational approach of the employee union leaders to the
series of speeches of the second day. Intentional disrup-
tion, verbal sabotage of the meetings' purposes, and will-
ful disobedience to urgings and directives of supervision
for rudimentary decorum were manifestly the order of the
day. The similarity of action as among each of the four
employees, including the verbal characterizations em-
ployed, the point and persistency of disruption, and the
uniformity of willful disobedience, point convincingly to
the coordinated, intentional nature of their behavior.
The restriction imposed by Respondent was upon cal-
culated employee efforts of usurpation and disruption of
its meetings. By the conduct of the employee union
leaders, the orderly expression of protected comments by
18 Republic Aviation Corporation v N.L.R.B., 324 U.S. 793; N.L.R,B.
v. The Babock & Wilcox Company, 352 U.S. 105.
'y Cf. Livingston Shirt Corporation, et al. , 107 NLRB 400; General
Electric Co., 156 N LRB 1247; N L.R B. v. American Tube Bending Co.,
Inc., 205 F.2d 45, 46 (C.A. 2); N.L.R B. v. S. & H. Grossinger's Inc.,
372 F.2d 26, 30 (C.A. 2); cf. also N.L.R.B v. United Steelworkers of
America, CIO [Nutone, Incorporated], 357 U.S. 357, 363, and Anchor
Rome Mills, Inc., 86 NLRB 1120, 1144, wherein the Board affirmed the
finding of the Trial Examiner that the company therein was under no duty
to provide the union with a forum to debate the issues pertaining to prior
collective bargaining and to discuss the causative issues of a strike then in
progress The Board found this to be so even though a representative of
the company had addressed the employees on company time at the plant
premises and even though an employee representative of the union had
requested permission for a union officer to reply. The Trial Examiner held
that the company 's conduct therein was not unlawful and the Board
sustained.
20 Republic Aviation Corporation v N.L.R .B., supra, N.L.R B v.
Babcock & Wilcox, supra.
HICKS PONDER COMPANY
the Employer was greatly impeded, and concomitant
rights of employees to hear the Employer's view of the
union question were significantly circumvented. Untena-
ble, in my opinion , is the contention that , in the circum-
stances prevailing , the restriction imposed by the
Respondent was a denial of the right to freedom of discus-
sion provided employees under Section 7 of the Act.21
Moreover, in the light of the intentionally disruptive
conduct of the four employee union representatives, the
restriction imposed upon employee comment was, in the
circumstances, reasonable out of consideration of
production. The picture-taking event preceding the initial
meeting of the second day, the conduct of the four em-
ployees as they entered their respective meetings, and the
experience of John Price in dealing with the Union in
other organizational situations gave Respondent sound
basis for anticipating inflammatory and provocative
behavior potentially seriously destructive of the carefully
conceived meeting schedule. Ana Meza warned, "I will
do what I have to do ..." and soon attempted to usurp
the forum to her own use. The others, despite requests
and directives , persisted in interrupting the meetings. In
the atmosphere that prevailed , there was no basis for
Respondent to anticipate a reasoned and dispassionate
expression of views on the part of the employee union
leaders who sought to speak. To have opened the
meetings to employee response under the employee-
fostered circumstances p.-evailing at the meetings would
have foreseeably resulted in a prolongation of the
meetings with a substantial incursion upon and diminu-
tion of production.
But even under the channel of communication facet of
the special circumstances theory under which the
General Counsel proceeds, the allegations of the com-
plaint will not stand close scrutiny.
The General Counsel concedes that, under the authori-
ty of the Steelworkers case, neither labor organizations or
employees are entitled to use a medium communication
simply because the employer is using it. Thus, on this
high authority and under the theory which I perceive the
General Counsel to be advancing , there was no absolute
or per se right of employees to use the meeting as a forum
to respond or answer the Employer. Moreover, under a
"balancing of interest" theory, there are insufficient facts
of record to justify conclusion that the Respondent was
under a mandate to accord the employees an opportunity
to answer.
The facts of record establish affirmatively that over the
period of the Union 's present organizational effort, the
Union has had available to it as a channel of communica-
tion with employees the use of public streets abutting the
Employer's premises for distributing handbills relating to
the Union. Moreover, the Union has had in-plant access
to employees for the purpose of distributing authorization
cards and obtaining signatures thereon , strongly suggest-
ing that Respondent has imposed no impediments to free
discussion of other matters relating to the Union. Further
- although under the theory of the General Counsel the
affirmative burden was his - there is no showing that, by
virtue of geographic or nationality consideration in-
digenous to the El Paso-Juarez area, there derived a sig-
21 Republic Aviation Corporation v. N.L.R.B., supra, N.L R.B. v.
Babcock & Wilcox, supra.
!!See 14.L.R.B . v. Local Union No. 1229, International Brotherhood
of Electrical Workers , A.F.L. [ Jefferson Standard Broadcasting
Company] , 346 U S 464, 477, wherein the U.S. Supreme Court drew a
815
nificant or substantial deprivation of union access to
other traditional channels of communication . Rather, the
inference is strongly to the contrary . Freedom of passage
available to Mexican nationals between Juarez and El
Paso is not only a matter of common notoriety , but is im-
plicitly shown in the record by the admitted fact that
Mexican nationals residing in Juarez are able to maintain
continuity of employment at Respondent 's El Paso-based
plant. The relatively unrestricted travel between the two
cities renders accessible to the Union for personal and
main contacts the places of residence of the employees.
Union meeting halls, Spanish and English language
newspapers , radio , and other forms of communication
were presumably available to the Union for its use.
The U.S. Supreme Court in Babcock & Wilcox, supra,
held that "accomodation between [employer and em-
ployee rights] must be obtained with as little destruction
of the one as is consistent with the maintenance of the
other." The Respondent had the right, under the Act, to
assemble its employees and to lawfully speak to them in
opposition to the Union. The Union had available to it
traditional means and channels of communication which
it could properly use to advance its cause . Just as the
Respondent would not have been free to infringe upon the
Union 's legitimate use of its channels and means of com-
munication , so employees acting on behalf of the Union
were not free to impinge upon the legitimate and rightful
use of the Employer in his use of his selected forum. This
they attempted to do . In foreclosing them from doing so
and in taking a reasonable action to protect its use of the
legitimate forum to which it had resorted, and to further
protect its legitimate interest in continuity and level of
plant production , the Respondent , I find and conclude,
did not violate the rights guaranteed the employees under
Section 7 of the Act.
3. The alleged concerted activities
Further, I find that in suspending employees, Ana
Meza, Celia Barrera, Manuela Contreras , and Carolina
Baca, Respondent did not violate Section 8(a)(1) of the
Act.
In so concluding I find that , although the four em-
ployees were united in common cause, their conduct bore
so incidental and residual a relationship to purposes and
rights cognizable under Section 7 of the Act as not to fall
within the ambit of conduct accorded statutory protec-
tion . By the commencement of the second day of the
meetings, the four employees who were subsequently
disciplined had decided , in concert one with the other, as
found above, upon a course of conduct fraught with
malice, calculated to disrupt the meetings and dilute the
legitimate purposes of the meetings. Their endeavor to
gain a voice at the meetings ostensibly to advance a coun-
tervailing viewpoint and persuasion was totally subju-
gated to this overriding purpose. I thus find that the four
employees were not acting in pursuit or furtherance of
employee interest but, rather , in mall iposition ^.,
the exercise by Respondent of ar ht , which I find, it was
proe yeercirng under e ct. In the circumstances,
I find the employees were not engaged in a protected con-
certed activity.22
distinction between concerted action by employees in the furtherance of
objectives other than and separable from employee interests and those
which were directly related thereto. To like effect see Genera! Electric
Co., 155 NLRB 208,22 1; see also N.L.R.B. v. The Office Towel Supply
Co., Inc.. 201 F 2d 838 (C.A. 2).
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But even if it were concluded that the activities in
which the four employees concertedly were protected
within the meaning of Section 7 of the Act, their conduct
was so activated and tainted with improper and malicious
intent as to warrant the disciplinary measure taken and to
have deprived them of the Act's protection.
I am of course cognizant of the Board's recent decision
in Socony Mobile Oil Company, Inc., 153 NLRB 1244,
applying the rule of The Bettcher Manufacturing Cor-
poration, 76 NLRB 526, to a factual circumstance close-
ly analogous to the instant one. Therein an employee was
discharged for conduct closely entwined with his pro-
tected, concerted activities. In Bettcher, the Board
stated:
We do not hold, of course, that an employee may
never be lawfully discharged because of what he says
or does in the course of a bargaining conference. A
line exists beyond which an employee may not with
impunity go, but that line must be drawn "between
cases where employees engaged in concerted activi-
ties exceed the bounds of lawful conduct in `a mo-
ment of animal exuberance' ... or in a manner not
activated by improper motives, and those flagrant
cases in which the misconduct is so violent or of such
serious character as to render the employee unfit for
further service."
However, I consider the Bettcher line of cases23
inapposite when applied to the facts of this case. I so con-
clude for I have specifically found that in the instant case
the employees were activated in their conduct at the
meetings by malice borne of an improper motive of
disruption separate from their incidental desire to
respond to antiunion remarks articulated at the meeting.
The presence of malice and improper motivation, in my
opinion, distinguishes this case from Bettcher, Socony
Mobile, and related cases . Thus, it may hardly be said, on
this record, that the conduct of the four employees -
uniform as it was in its essential features - was spontane-
ous and the result of "animal exuberance." Rather, con-
trary to the Bettcher line of cases, the conduct was a part
of a premeditated pattern of conduct engaged in re-
peatedly in defiance of instructions of supervision
designed to enforce reasonable limitations upon conduct
which if condoned would have been destructive of the
purposes of the meetings that the Respondent, under the
statute, was free to conduct. Moreover, this underlying
malice and the insubordination of the employees, in my
opinion, renders the conduct more serious and flagrant in
character than the disrespect, insults, vulgarities, and
disparagement typically found in the Bettcher line of
cases, and places the conduct of the four suspended em-
ployees in the category of "improperly motivated" con-
duct which, under the Bettcher rule, is recognized as not
being insulated from the reach of employer discipline.24
4. The alleged violation of Section 8(a)(1) and (3)
It is well recognized that neither protected nor union
activities under the Act confer upon employees immunity
from discharge for nondiscriminatory reasons.25
Concomitant, of course, is the concept that discharges ef-
fected solely for reasons separable from or unrelated to
the protected concerted or union activity do not perforce
transgress statute, although the discharge or disciplinary
action may arise out of an incident or sequence of events
involving the employee engagement in concerted activity,
or may be closely related in time thereto 26 Although the
disciplinary layoffs herein arose out of meetings in which,
I have found, disciplined employees jointly sought as a
separable and incidental element of a more overriding
purpose to engage in union-related activities, I find, upon
abundant evidence of record, that the disciplinary action
was taken not to punish the employees because they
sought permission to speak, or for the purpose of chilling
or defeating unionization, but because the employees
were adamant in carrying out their calculated efforts at
disruption, and because, in furtherance of their scheme,
they repeatedly disregarded and disobeyed orders of su-
pervision to cease their interruptions and disruptions. A
careful analysis of the evidence pertaining to each of the
meetings which resulted in disciplinary action being
taken reveals that the shouting, of affronts and charac-
terizations, with their resultant disruptive effect in terms
of continuity of translation and of audience attention and
understanding, presages the direct orders to remain silent.
The employee demands to be heard which were lodged at
the meeting were clearly not, on this record, the irritants
bearing causal relationship to the disciplinary actions
which followed.
In Klate Holt Company,-supra, the Board observed:
The mere fact that an employer may desire to ter-
minate an employee because he engages in unwel-
come concerted activities does not, of itself, establish
the unlawfulness of a subsequent discharge. If an em-
ployee provides an employer with a sufficient cause
for his dismissal by engaging in conduct for which he
would have been terminated in any event, and the
employer discharges him for that reason, the circum-
stance that the employer welcomed the opportunity
to discharge does not make it discriminatory and
therefore unlawful. [Citations omitted.]
This concept is cogent with respect to both the 8(a)(1)
and (3) allegations raised by the complaint. Respondent
was opposed to the Union. It had vigorously sought to
dissuade employees from resorting to it for representa-
tion . But for the most part-so far as this record
reveals -in pursuing this objective it engaged in no ag-
gravated, unlawful, antiunion conduct. The violation
below found, relating to inferential limitations imposed
23 See, e.g ., Leece-Neville Company, 159 NLRB 293, and cases cited
at 299-300.
24 Contrary to the General Counsel, I find there was nothing in the con-
duct, attitude, or demeanor of John Price calculated to either excite or in-
cite indiscreet behavior on the part of employees and to warrant their ab-
solution from the effects of the foregoing findings and conclusions With
respect to the General Counsel's contention, it is noteworthy that only the
five leading activists in the organizational effort were "excited" at the
meetings to indiscreet behavior by the Price speech , as translated.
Further, with respect to the conduct of Price at Hortex and Hicks-
Hayward to which the General Counsel, in his brief, and at the hearing, al-
ludes, it is noted that in each of those cases Price 's remarks were found to
fall within Section 8(c) of the Act, suggesting that it was not the content of
Price 's speeches which concerned the Union 's proponents but their com-
mon fear of the adverse effect of the speeches upon the movement to
which they were dedicated.
25 Metals Engineering Corp., 148 NLRB 88, 90; Mitchell Transport,
Inc., 152 NLRB 122; N.L.R B. v. Park Edge Sheridan Meats, Inc., 341
F.2d725 (C.A. 2).
26 N.L.R .B. v. Local Union No. 1229 , International Brotherhood of
Electrical Workers, A.F.L. [Jefferson Standard Broadcasting Company],
346 U.S. 464, 474-475. Mitchell Transport, Inc., supra; Northstde Elec-
tric Company, 151 NLRB 34; Klate Holt Company, 161 NLRB 1606
HICKS PONDER COMPANY 817
upon card-signing activities, is of a separate filum, and in
assessing motivations has only feint impugning effect.
The disciplinary action, in light of the strong provocation
and repeated acts of insubordination occurring in the
presence of assembled employees, was justified and has
a reasonable relationship to the maintenance of order at
the meeting, the production-related meeting schedule,
and employee respect for management and supervisory
authority, external of the meetings. The incidental union-
related nature of the conduct was not, I find, the motivat-
ing cause of the disciplinary action. Thus, I am persuaded
and find that, in disciplining employees Ana Meza, Celia
Barrera, Manuela Contreras , and Carolina Baca,
Respondent did not violate either Section 8(a)(1) or (3) of
the Act.
5. The limitation upon card-signing activities
In agreement with the General Counsel, I find that, in
conducting office conferences with employees Delgado,
Meza, and Ortiz regarding alleged employee complaints
received relating to the card-signing activities of the union
proponents, Respondent violated Section 8(a)(1) of the
Act. I predicate my finding of a violation on the theory
that, by his remark, McQuien, a principal plant official,
coerced the employees interviewed in the exercise of
their rights guaranteed under Section 7 of the Act. He did
this by his remarks conveying unmistakably the inference
that any subsequent card-signing activity conducted by
the employee proponents of the Union must, upon pain of
future discipline, conform to Respondent's standard of
propriety. By imposing this limitation upon the freedom
of employees to engage in an important organizational ac-
tivity, Respondent intruded itself into an area of pro-
tected activity which - save for limitations plainly not
here applicable27 - is uniquely the concern of employees.
The evidence reveals that the Respondent imposed a
restriction on these Section 7 rights which was grounded
on no legitimate employer interest cognizable under the
statute.28 Management may, of course, take appropriate
measures to assure and enforce plant discipline, but, at
the conference, the issue of abuse of worktime was not so
much as broached and there is no substantial showing
that employee discipline had become a factor of con-
cern.29
6. The alleged surveillance
I am, however, unable to find that the remarks of
Mable Garcia , a supervisor , to Eloisa Orozco constituted
surveillance or gave the impression of surveillance viola-
tive of Section 8(a)(1) of the Act. As I view the testimony
of Orozco , Garcia, in speaking with Orozco , was acting
not on behalf of Respondent as a conduit of statements or
instructions calculated to coerce Garcia in the exercise of
her rights under the Act, but voluntarily, as a friend of
Garcia, conveying to her information intended by
Respondent to remain confidential among its supervisory
staff. This voluntary act of friendship and congeniality on
the part of Mable Garcia may be indicative of Respond-
ent's opposition to the Union , but it does not support an
allegation of surveillance.
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 Respondent's
operations described in section I, above, have a close, in-
timate, 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
Having found that the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By instructing employees to conduct their off duty,
card-signing activities , undertaken in support of the
Union's organizational campaign, to conform to un-
specified standards of propriety and conduct to be deter-
mined by Respondent on an ad hoc basis, the Respondent
interfered with , restrained, and coerced employees in the
exercise of the rights guaranteed under Section 7 of the
Act and did thereby violate Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
21 See, e .g , Johnnie 's Poultry Co., 146 NLRB 770,775
38 See , e.g., Peyton Packing Company , Inc., 49 NLRB 828, 843-844;
Republic Aviation Corporation v. N L.R .B., supra Respondent made no
effort to establish the accuracy of the employee complaints and it makes
no pretense that the alleged conduct which they called to the attention of
the employee was of a character warranting a withholding of the Board's
remedial processes , or warranting a discharge . Cf. N L R.B. v Burnup
and Simms, Inc., 379 U.S. 21.
No question of unlawful assistance under the Act is here involved.
29 1 do not adopt , as the basis for my decision herein. the contention of
the General Counsel that , in the circumstances of this case , the remarks
of Respondent at the conference were, in law, the equivalent to interroga-
tion, or that , under the rationale of Standard-Coosa-Thatcher Company,
85 NLRB 1358 , 1360, the Respondent directly or indirectly was en-
deavoring to obtain information from the employees with whom it held
conferences.