Hicks-Ponder Co.

National Labor Relations Board - Board Decisions

Jan 9, 1969

174 N.L.R.B. 51 (N.L.R.B. 1969)

HICKS-PONDER COMPANY
Hicks-Ponder Company and Southern California
Joint Board of Amalgamated Clothing Workers of
America, AFL-CIO
Hicks-Ponder Company and Southern California
Joint Board, Amalgamated Clothing Workers of
America , AFL-CIO, Petitioner . Cases 28-CA-1575
and 28-RC-1639
January 9, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 12, 1968, Trial Examiner David E. Davis
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
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 and briefs, and
the entire record in these cases, and hereby adopts
the findings,' conclusions, and recommendations of
the Trial Examiner except as herein modified.
1. The Trial Etaminer found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act
by engaging in surveillance2 of union meetings; by
interrogating employees concerning union activities;
by soliciting employees to withdraw their union
authorization cards; and by emphasizing the futility
of bargaining in a series of speeches to its
employees.3
'The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd.
188 F.2d 362 (C.A 3). We find no such basis for disturbing the Trial
Examiner's credibility findings in this case.
'Respondent maintained a log that contained unusual events occurring in
the plant including matters pertaining to union activity. In finding that the
maintenance of the log violated Section 8(a)(1) in that it was designed to
inhibit Section 7 rights of employees, the Trial Examiner inferred that the
log, if produced, would disclose evidence unfavorable to Respondent
including the identity of those persons engaged in union activity and all
such events and conversations As the record is silent with respect to the
specific contents thereof, we find no basis for inferring Respondent's
purpose in maintaining such a log Under these circumstances, we conclude
that Respondent did not violate 8(a)(l) by maintaining said log.
'Without relying on the next to last paragraph in sec III, E (including
51
With regard to the speeches, employee Jaime
testified that the employees were told that they
should return their union cards because even if the
Union came in the Company would not negotiate
with them; that the benefits would remain the same,
11. . . there would be no more money . and
benefits"; that "when the Union asked for
something that they were going to say no, no"; and
"that there wasn't any Union who didn't make
strikes." Employee Javier testified that the
employees were told that "this Union can just ask,
ask, ask, and we can refuse no"; and that "... the
Union if it did win that all then we'd have ... some
representative to speak for us, that we would not be
free to speak for ourselves, that somebody would do
the talking for us, this is all we would gain."
Employee Montana testified that the employees
were told that ". . . if there was strikes, that they
would replace the girls"; "that there would be
violence and fighting among the girls themselves";
that ". . . the company itself did not have to agree
to anything. That they would just say no and no and
no to everything"; . that the company did not
have to agree to anything or negotiate with them";
"that they would say no, just to everything, that
they didn't have to agree to nothing," " . . . that we
already had what we wanted that any other benefits
we weren't going to get"; "that the Union wouldn't
do anybody any good if it went in there, because
they wouldn't agree to anything ...."; that ".. .
where there was a Union, that there usually was
strikes"; ". . . that the Unions would usually cause
strikes whether the employees wanted them or
not . . . ."; and "' .. that the girls were on strike, they
would replace them." Employee Sanchez testified
that the employees were told ". . . that the company
didn't have to negotiate with the Union if they
didn't want to, and they were going to say no, and
whatever the Union said, they were going to say
no"; ". . that whatever was going to happen they
would have to go on strike"; and "that when they
went on strike they would have to be replaced."
Employee Granio testified that the employees, were
told the Company was not going to deal with the
Union; ". . that now we were getting two weeks
vacation, the Union came in we were only going to
get one week"; and ". . . that we were going to be
in some difficulties and fighting, that we didn't have
before if the Union got in . ." Employee
Rodriguez testified that the employees were told
that ". . . if the Union came in, there would be a
strike, because there would also be people fighting,
and they would be fighting among the people who
signed the cards, and the people who didn't sign the
the cases cited in fn. 48) of the Trial Examiner's Decision and the various
characterizations made by the Trial Examiner concerning the series of
speeches given by Attorney Price and Plant Manager' Bunch, we
nevertheless find on the basis of his credibility resolutions that Respondent
violated Section 8(a)(1) by soliciting employees to withdraw their union
cards and by certain statements set out above that clearly indicated the
futility of bargaining if the Union should be successful in becoming
bargaining representative
174 NLRB No. 12
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards. In other words there would be trouble in the
factory." This unremitting effort on the part of
Respondent clearly impressed on the employees that
Respondent had decided in advance not to bargain
in good faith with the Union as required by the Act
and that the employees could achieve nothing by
designation of the Union.
2. We also agree with the Trial Examiner's
finding that Respondent suspended and subsequently
discharged employee Josephine Jaime in violation of
Section 8(a)(3) and (1) of the Act.4
3. The Trial Examiner found that Respondent
suspended employee Theresa Javier in violation of
Section 8(a)(3) of the Act. Because he concluded
that employee Robles' version of the statement
made by Javier did not constitute a threat, the Trial
Examiner concluded that the reported threat was
used as a pretext by Respondent to suspend Javier,
in order to discourage her and other employees from
engaging in union activity. Thus, the violation turns
on whether the Trial Examiner correctly construed
Javier's statement to Robles.
The evidence discloses that on the day of Jaime's
discharge, Javier remarked to Robles that the latter
seemed very happy because of this discharge and
that Javier was going to "settle matters with"
Robles. The parties stipulated that Robles testimony
as to this statement would be corroborated by
employees Eyre and Cordova. A discussion on the
record then ensued among the various parties, the
interpreter, and the Trial Examiner, in which the
interpreter indicated that,the phrase "settle matters
with me," in the terminology of translating the
Spanish idiom, means fighting and can be construed
as a threat. Upon the entire record, we are
convinced that the statement to which Robles
testified is usually understood as a threat. Under
these circumstances, the premise for the Trial
Examiner's conclusion that such threat was a pretext
for suspending Javier is removed. Accordingly, we
find that the General Counsel has not sustained his
burden of proof, and we shall dismiss the allegation
of the complaint that Respondent suspended
employee Javier in violation of Section 8(a)(3) of the
Act.
4. With respect to the Trial Examiner's remedial
order, we are of the opinion that the circumstances
of this case do not justify a departure from our
normal period of posting or from the eligibility list
requirements as set out in Excelsior Underwear Inc.,
156 NLRB 1236. We shall amend the Order
accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
'Even if we found, contrary to the Trial Examiner , that the alleged
offense against Jaime constituted the offense of clipping, as defined in the
company handbook, this would not in any way affect our agreement with
his ultimate findings herein
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Hicks-Ponder Company, Yuma,
Arizona, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Delete paragraphs 2(b) and (d) of the Trial
Examiner's Recommended Order relettering the
paragraphs therein accordingly, and delete the 10th
and 11th indented paragraphs (which deal with
Theresa Javier) of the notice attached to the Trial
Examiner's Decision.
2. In paragraph 2(f) of the Trial Examiner's
Recommended Order delete "120 consecutive days"
and substitute therefor: "60 consecutive days".
3. Add the following as the last indented
paragraph of the notice:
WE WILL NOT solicit our employees to
withdraw their union authorization cards.
IT IS FURTHER ORDERED that the election held on
July 28, 1967, among Respondent's employees be,
and it hereby is, set aside, and that Case
28-RC-1639 be, and it hereby is, remanded to the
Regional Director for Region 28 for the purpose of
conducting a new election at such time as he deems
that circumstances permit the free choice of a
bargaining representative.
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found to be violations of
the Act be, and they hereby are, dismissed.
[Direction of Second Election5 omitted from
publication.]
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 28 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director . The Regional Director shall
make the list available to all parties to the election . No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed . Excelsior Underwear Inc., 156 NLRB 1236
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
D vtD E. DAVIS, Trial Examiner. The complaint, in
Case'-'28-CA-1575, was issued on November 9, 1967,i
amend'uring the course of the hearing upon an original
charg4, filed by Southern California Joint Board of
Amalgamated Clothing Workers of America, AFL-CIO,
herein called the Union, amended on August 22 and
November 7, and was consolidated with Case 28-RC-1639
on November 9 for purposes of hearing by the Regional
Director of Region 28 of the National Labor Relations
Board, herein called the Board.'
Thereafter, on February 6, 7, 8, and 9, 1968, the above
consolidated cases were heard at Yuma, Arizona, by the
undersigned duly designated Trial Examiner. The
' All dates herein refer to 1967 unless otherwise specified.
'The Regional Director issued his Report and Recommendations on
Objections to Election and Order Directing Hearing in Case 28-RC-1639
on November 9 On November 27, the Board by its Deputy Executive
Secretary , issued an Order adopting the Regional Director's
recommendations as contained in his report
HICKS-PONDER COMPANY
complaint alleged that Hicks-Ponder Company, herein
called Respondent, . since February, 23 interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the National Labor
Relations Act, herein called the Act; by interrogating its
employees concerning their union membership and
activities and the activities and union membership of
fellow employees, by engaging in surveillance of meeting
places and union activities of its employees; by creating
the impression that union activities, meetings, and meeting
places were under surveillance; by announcing on
numerous dates that Respondent would not negotiate in
good faith or agree to any proposal or agreement with the
Union if said Union was certified as the
collective-bargaining representative of its employees; by
announcing on numerous occasions that strikes of a
violent nature, prejudicial to employees, would occur
during which employees would be terminated and replaced
for engaging in work stoppages or strikes; and by
instructing a temporary laid-off employee that she was not
to vote in the pending Board election. The complaint
further alleged that Respondent violated Section 8(a)(1)
and (3) of the Act by suspending Theresa Javier on July
27 and discharging Josephine Jaime on July 27 because of
their union activity. Respondent in its answer admitted
certain allegations of the complaint but denied the
commission of any unfair labor practices.
Subsequent to the trial, counsel for the General Counsel
and counsel for Respondent filed briefs which have been
carefully considered.
Upon the entire record' in these consolidated cases and
from my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Hicks-Ponder Company, a Texas corporation,
maintains its principal office at El Paso, Texas, with
manufacturing plants at El Paso, Del Rio, Texas and
Yuma, Arizona," where it is engaged in the manufacture
and production of wearing apparel. During the last
12-month period, Respondent has manufactured, sold, and
shipped from its Yurna plant finished products valued in
excess of $50,000 diiectly to points outside the State of
Arizona. During the same period, it has purchased and
caused to be shipped to its Yuma plant textiles and other
goods and materials from points outside the State of
Arizona valued in excess of $50,000. The 5omplamt
alleged, the answer admitted, and I find, that R,onent
is engaged in commerce within the meaning GI"S ction
2(6) and (7) of the Act. I find that assertion of jurisciction
would effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
'The unopposed motion of the General Counsel to correct the transcript
of the record is allowed.
'The plant at Yuma is the only one involved in these proceedings
III. THE UNFAIR LABOR PRACTICES
A. Background
53
Yuma, Arizona, and its surrounding area is basically
agricultural. Respondent's plant is the only one of its kind
in the vicinity and one of the few manufacturing plants.
Respondent's plant is primarily staffed by Mexican
nationals or Americans of Mexican descent.'
The predominant language of the employees is Spanish
and at least 50 percent of the rank and file employees are
"green-carders."5 It appears that in communicating with
supervisory personnel most rank and file employees
require an interpreter. Frances Daniel, Respondent's
personnel manager, usually acts as the interpreter.
At the inception of the Union's organizational drive,
early in January 1967, Respondent retained the services of
Attorney John Edward Price of Forth Worth, Texas. The
General Counsel in his complaint alleged that Price, as
agent for Respondent, committed various unfair labor
practices. Despite these allegations of the complaint, Price
appeared as Respondent's attorney in these proceedings
and as Respondent's chief witness. As will appear, infra,
Price's conduct in his dual capacity left much to be
desired.'
B. The Issues
The principal issues may be summarized as follows:
1. Should the Board-conducted election of July 28,
1967, be set aside because of Respondent's unfair labor
practices?
2. Was Theresa Javier suspended because of her known
union adherence, sympathies and activity?
3. Was Josephine Jaime suspended and then discharged
because of -her known union adherence, sympathies and
activity?
4. Did Respondent engage in unlawful surveillance of
the union meetings places and of its employees' union
activity?
5. Did Respondent in a series of speeches engage in
unlawful threats of reprisal, anticipatory refusals to
bargain, interference with employees' guaranteed rights,
and other forms of coercion of employees in order to
deter the employees from selecting the Union as their
collective bargaining representative and to defeat the
employees attempt at self-organization?
C. Surveillance
Wilma Robertson, a National Representative of the
Union, testified that she spearheaded the organizational
drive at Respondent's plant and that the drive commenced
in January.'
'There was evidence that Philippine , Indian, Anglo, and other ethnic
groups were represented to some extent
'A "green-carder" may be loosely defined as a person not a citizen or
resident of the United States who has been issued a permit to work in the
United States.
'The undersigned 's expression of dissatisfaction with Price 's conduct at
the outset of this Decision is designed 'to focus on an important element in
the determination of credibility resolutions in this Decision. e'Initially, Robertson testified that the drive terminated with the election
on July 28. When asked by the Trial Examiner if she was still trying to
organize the employees , she amended her testimony by stating that the
organizational attempt was continuing and had not been terminated.
Respondent Counsel objected to the Trial Examiner 's question and was
overruled It seems rather obvious that the question is nonpreludicial and
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robertson, a credible witness, testified that when she
came to Yuma to commence the drive she lived at a hotel
for a couple of weeks and then moved into an apartment
at 11th Street and First Avenue, that it was located about
six blocks from Respondent's plant; that she lived at the
apartment until the latter part of June, that thereafter she
rented a house at Avenue A and 16th Street; that during
her occupancy of the apartment she conducted meetings
for employees of Respondent's plant almost every other
day, both during the lunch hour and after work; that
attendance ranged from 8 to 40 employees; that she saw
Gene Williamson, Respondent's assistant plant manager,
Daniels, and Fred Bunch, Respondent's plant manager,
approximately two or three times each week drive by and
observe the cars parked in the lot adjacent to the
apartment and looking over toward the apartment. As the
apartment had windows facing each of the intersecting
streets, Robertson stated that she would on occasion see
Bunch, Williamson or Daniels driving around the block
and pass the apartment a second time. When Robertson
moved into the house she continued to have meetings for
employees. Employees attending these meetings parked
across the street in a vacant lot. She testified that she
continued to see Bunch and Williamson pass her house on
three or four occasions and Daniels more frequently,
especially the week before the election when she saw
Daniels passing every night; that the night before the
election, on July 27, Daniels circled the house several
times (four-five) looking at the house; that on one of these
occasions, Robertson motioned Daniels to come in
because the employees present were aware that Daniels
was driving around the block; that on July 26th she saw
Price accompanied by Bunch and Daniels drive by the
house looking at the house and the parking lot across the
street. On cross-examination, Robertson was able to
identify the types of automobiles each person drove but
was unable to give greater details concerning any
particular occasion with the exception of July 26 and 27.
Theresa Javier, whom I find worthy of credit, testified
that she was a member of the Union organizing
committee; that she saw Bunch, Price and Daniels drive
slowly by Robertson's house at noontime on July 27, a
day before the election; that she saw Daniels pass by the
house on previous occasions and that on one occasion she
and other employees waved their hands at Daniels inviting
her in; that on July 27 she saw Daniels pass the house a
couple of times and about six times during July.
Mary Lou Montana, employed by Respondent for
approximately 3 years, testified credibly that she saw
Daniels passing Robertson's house a week before the
election and one evening during the week of election she
saw Daniels pass Robertson's house about six times within
an hour and one-half. She saw Robertson wave to Daniels
inviting her in.
Price admitted that on two occasions during the week
of the election he passed Robertson's house on the way to
lunch. He was accompanied by Bunch on both occasions
and by Daniels on one occasion. Daniels admitted that she
passed Robertson's apartment and later the house
occupied by Robertson on numerous occasions. She
testified that she frequently visited her mother and sisters,
each of whom lived in the area. On cross-examination, she
could not give her sister's address, admitted her sister had
moved, and was confused in tracing her route to her
mother's house. Bunch and Williamson admitted passing
Robertson's house on several occasions. Bunch explained
his trips by the house by stating that he passed the house
on the way to the Post Office, Williamson explained his
trips by stating that there were various food sales in the
vicinity.
I do not credit the explanations given by Price, Daniels,
Bunch, and Williamson. On the whole, I find them to be
witnesses unworthy of credit who were engaged in a
campaign to intimidate employees from joining or
assisting the Union, Other incidents described hereinafter
will demonstrate the lengths to which Price, Bunch,
Daniels and Williamson went to further their intentions.
Moreover, Bunch , in his 12 or 13 speeches to employees,
some of which were interpreted by Daniels, repeatedly
referred to the Union meetings at Robertson's house.
I find that Robertson's apartment, from about
February to the latter part of June and her house from
then to the election, were kept under surveillance by
Respondent's top supervisors and that Bunch's speeches
were intended to advise the employees of this fact. Neither
visitation to relatives, restaurants, Post Office or food
sales can serve as an excuse for the open surveillance
which was carried on. I find that by the above-described
conduct of Price, Daniels, Bunch and Williamson,
Respondent violated Section 8(a)(1) of the Act.
D. The Suspension of Theresa Javier
Theresa Javier was suspended by Williamson on July 27
because of a report that she had threatened an employee
named Lupe Robles. Javier had signed a union card on
February 3 and was on the Union's organizing committee.
She had spoken to more than fifty employees concerning
the Union. The evidence disclosed that her union
sympathies were well known to Respondent since
February. At the time of her suspension, Javier protested
that she was being suspended without being given an
opportunity to present her side of the story and without
her witnesses being talked to by management. Bunch
acknowledged that interviews of witnesses were conducted
after Javier's suspension.
Lupe Robles testied that the alleged threat consisted of
an incident occurring at noon on July 27, when Robles
and two other girls were eating their lunch under a tree on
the grounds of Respondent's plant. Javier and several
other girls came by and Javier remarked that Robles
seemed very happy because Josephine Jaime had been
fired and that later she (Javier) was going to settle things
with Robles.' After Robles testified I stated on the record,
addressing myself to Counsel for the General Counsel who
was about to cross-examine, the following:
TRIAL EXAMINER: I might save you some time, I am
not going to interpret this as a threat.
The following interchange then occurred:
MR. MAST: Okay, pass the witness
MR. PRICE: That is all, Lupe. I would say to Counsel in
view of the Trial Examiner's statement, do you want to
stipulate that the next two witnesses would say this is
what was said?
TRIAL EXAMINER: Yes, why don't you?
MR. MAST: Okay, we will stipulate.
MR. PRICE: So that the record will be clear, Mary Lou
Eyre and Carlotta Cordova are here in the hearing
room and if asked to testify on this matter, would
'Javier, testified that all she said was that she had something to tell
was designed to reflect the true state of affairs for the record . Robles later.
HICKS-PONDER COMPANY
repeat what was said by the previous witness, Lupe
Robles.
Accordingly, the stipulation was entered into by
Counsel.
There was evidence that Javier had been suspended on
a prior occasion and that she had an absentee record.'
However, Javier was known to be an active union
protagonist, she was suspended without adequate
investigation of the above described incident; and Bunch
did not reinstate her until the following Wednesday
because of her alleged "attitude." Bunch testified that the
reference to -her, "attitude" resulted from Javier's
statement on the following Monday that -when she
returned to work she would get even with those who
caused her suspension. I do not credit Bunch's
explanation. I infer the use of the word "attitude" as a
reference to Javier's union adherence. Moreover, under
the circumstances such an expression, even if made, could
only be interpreted as an emotional outburst brought on
by Respondent's unjustified action in suspending her in
the first instance ' °
Javier credibly testified that Williamson, when he
suspended her on July 27, told her not to come in to vote
in the election scheduled for the next day." Moreover, the
evidence disclosed that Javier was harrassed on a previous
occasion' z because of her union proclivities.
As I adhere to the ruling made on the record that
Roble's version of the statement made by Javier, even if
credited, does not constitute a threat, I conclude that the
incident was used as a pretext to suspend Javier in order
to coerce and discourage Javier and other employees from
engaging in union activity in violation of Section 8(a)(3)
and ^Ol) of the Act.
D. The Discharge of Josephine Jaime
Josephine Jaime, employed by Respondent for
approximately 2 1/2 years, was suspended on July 24. The
suspension was turned into a discharge on the following
Thursday, July 27.
The suspension and discharge resulted from an alleged
violation of a rule against "clipping" tickets. It appears
that Jaime was employed as a seamstress sewing pockets
on army pants. The pants are placed near her machine in
bundles, each bundle containing 3 dozen pants. Though
Jaime's compensation was calculated on a piece rate basis,
the records show that in the 2 1/2 years of her
employment she rarely earned the $1 25 per hour
guaranteed minimum payment"
Bunch testified that during the last few weeks of her
employment, Jaime produced 72 dozen at an average
efficiency rating of 106.1 percent. However, this was not
related to Jaime's earnings during this period but it is
presumed that her earnings exceeded the minimum
guarantee. The testimony demonstrates that Respondent
was satisfied with Jamie's efficiency and her production
was not related to her discharge. Respondent's reason for
the suspension and discharge as testified to by Price,
Bunch, Williamson, Daniels, and Forelady Sylvia Sims,
'R-12.
"Cf Wagner Industrial Products Company , Inc., 170 NLRB No. 157.
"Javier, however, voted an unchallenged ballot
"This incident will be discussed, infra
"R-4 shows that from November 20 , 1965 until October 29, 1966,
covering 45 weeks, Jaime exceeded the minimum of $1.25 per week only
once, earning during the week ending June 18, 1966 the sum of $1.26 per
hour. All other weeks she received make-up pay_ The average make-up pay
was about $ 10 per week . Figures for the year 1967 were not produced
55
concerned the pasting of a work ticket from a bundle of
pants on a "gum sheet" which was used by Respondent as
the record from which piece` work earnings were
calculated. Respondent's witnesses, named above,-testified
that five work tickets representing five bundles were
pasted on Jaime's "gum sheet" on July 24,^ when in fact,
Jaime had completed only 3 1/2 bundles and, therefore,
four tickets at a maximum should have been pasted on
Jaime's gum sheet. Jaime, on the other hand, insisted that
she had only pasted four work tickets on the gum sheet
and that it was the general practice to paste the work
ticket on the gum sheet after a new bundle had been
opened and work started on it. Testimony from coworkers
and Sims confirmed Jaime's testimony as to the practice
and Respondent counsel conceded this. Jaime also insisted
that she understood that she was suspended for following
this practice and denied that she had pasted a fifth work
ticket for a bundle which had not been opened or started
Jaime testified that about 3 p.m. on July 24, she was
summoned to attend a meeting in the forelady's
lunchroom where Price delivered one of his speeches.14 and
that if she had not been called away from her work she
would have finished the fourth bundle that day. The thrust
of Jaime's testimony was that she had been accused of
"clipping" a ticket because she had pasted it before
completing the bundle. Respondent's final contention was
that Jaime had not only not completed the fourth bundle
but had pasted a ticket for a fifth bundle which she had
not even started. Sims admitted that Jaime had not signed
the "gum" sheet assigned to her and that Sims, herself,
had signed Jaime's name. The "gum" sheet was not
produced, according to Price's- testimony, because it had
been forwarded to Texas and there had been destroyed
before Price had become aware that' the gum sheet had
evidentiary importance. Price's explanation taxes credulity
because of its innate inconsistencies and improbabilities
and is not credited. Price testified that he understood from
the Board attorney assigned to the investigation of the
charge that Jaime's suspension was in issue rather than
her discharge and that he was not aware that the
discharge would be alleged as a violation of the Act until
he received the complaint. He further testified' that his
conversations with the investigating attorney and later
with, the assistant to the Regional Director concerned a
proposed settlement and that in fact a settlement
agreement had been drawn up to this effect./5 I ruled that
the proposed settlement agreement was inadmissible as an
evidentiary matter. Price is an experienced labor attorney
with considerable experience in dealing with the General
Counsel's office. He knew or should have known that the
General Counsel to avoid-extensive litigation, may offer to
settle a case on terms that may vary from those that
ultimately may be sought after settlement talks break
down and a complaint is issued. Moreover, whether the
suspension or discharge of Jaime was the issue does not
affect the evidentiary value of the gum sheet. Essentially
it would seem necessary to establish the identical facts.
Even though I stated at the hearing, the failure of
Respondent to produce the gum sheet is not crucial,
nevertheless, because it was in Respondent's custody at all
times and because I have discredited Price's explanation
for the failure to produce it, I rule that the gum sheet if
produced would have shown facts adverse to Respondent's
position. Contrary to Respondent's contention, I find that
"The speeches will be discussed in another section of this Decision. It
seems fair to infer that attendance was compulsory even though employees
working on piece rates lost earnings by their attendance
"Apparently no agreement was reached.
1
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the, gum sheet,_ if produced, would have shown only 4
work tickets posted by Jaime.
- Jaime, as a witness proved to be excitable and voluble,
often failing to answer a question directly in her desire to
emphasize aspects- more favorable to her -cause. As her
testimony was elicited through an interpreter, who was
apparently inexperienced, the record of her testimony is
somewhat confused and disjointed. Despite these
deficiencies, painstaking reviews of her testimony, the
exhibits in evidence, and her demeanor on the witness
stand, lead me to consider her on. the whole as a credible
witness. I have summarized, below, in a more orderly
fashion, the significant elements of her testimony which I
have credited.
Jaime had signed a union card at the very inception of
the union organizational drive in January. Thereafter she
attended union meetings at Robertson's apartment and
house in June and July. About two weeks after Jaime
signed a union card,, Sims in discussing the Union with
Jaime, said that she would not vote for the Union because
a union caused fights and strikes.
Jaime was employed by Respondent;m February 1965
as a sewing machine operator. Her first supervisor was
Forelady Marie Luera who gave her Respondent's
handbook for employees and instructed her that when she
finished,a bundle,"she was to detach the work ticket and
paste it on a gum-sheet- At the conclusions of the day the
gum sheet, signed by the operator, was collected by the
'forelady. As-earnings were calculated on a piece rate basis
the number of work tickets pasted on the gum sheet of
each operator determined the amount earned by that
operator. In Jaime's case the record shows" that from
November 20, 1965 to October 29; 1966,11' she failed to
earn her -minimum guaranteed hourly rate of $1.25 per
hour except for one week ending June ,18, 1966. As a
result, Jaime was paid make-up pay for each week which
averaged about $10 per week but went as high as $31.
Nevertheless,- there was credited testimony" that for
several, weeks prior to her termination in -July, Jaime
exceeded the minimum at an average rate of 6.7 percent.
After following Luera's instructions on when to remove
the work ticket and paste it on her gum sheet, Jaime
noticed that the girls were removing the work ticket
before a -bundle was completed. Jaime thereupon
commenced doing,it the same way. Luera agreed that she
could do it that way except on Fridays, when she was to
paste the work ticket only if the bundle had been
completed.'" -
Later Sylvia Sims became her supervisor and
reprimanded Jaime on several occasions for removing the
work ticket prior to completing a bundle. Finally, in
February, she was called into the- office by Sims and
asked to sign a written warning that a-- further offense
would result in discharge for misconduct. In March,
another written warning was given to Jaime for a similar
offense.21
Jaime credibly testified that after her last reprimand
she had misplaced a work ticket because she had not
"'Jaime was employed to sew pockets on pants . I find that a bundle
contained 3 dozen pants although the record reflects other testimony that a
bundle contained two and one-half or two dozen.
"R-4.
"No records were produced for later periods
"By Fred Bunch , plant superintendent
"Friday was payday and apparently terminated the pay period.
'This warning , however, explicitly referred to removing 'a work ticket as
she started sewing on i. bundle.
pasted it on her gum sheet after starting on the bundle. As
a- result, Gene Williamson, the assistant plant manager
told her that she could remove the work ticket and paste
it on-the gum sheet when she started working on a bundle.
Sims and other employees testified and I find that
Respondent approved and condoned this practice for some
time before Jaime's discharge on July .27 and that the
practice was in effect at the time of the hearing.
On July 24, about 3 p.m., Jaime had completed 3
bundles and commenced on her fourth bundle, she
removed the work ticket and pasted it, feeling she would
complete it before 4:15, the quitting time. As it happened
,she was called to, attend a meeting to hear a speech by
Price .22 As a result of the interruption and - because the
meeting lasted until 4:15, Jaime was unable to complete
the bundle that day. During her absence from her
machine, Sims had collected Jaime's gum -sheet about 3:30
p.m. Sims noticed that Jaime had not signed it, so added
Jaime's name to the gum sheet. According to Sims,
Williamson and Price, the gum sheet showed five work
tickets representing five bundles, when in fact only about
3 1/2 bundles had been completed. The gum sheet was not
placed in evidence because it had been destroyed. Price's
explanation for the destruction of the gum sheet, as noted
above, is not credited.
After Jaime reported at the supervisors' lunch room to
hear Price's speech on July 24, she saw Bunch hand a girl
a paper to give to Price. The,paper fell to the floor and
Jaime picked it up and gave it to someone, to hand to
Price. She noticed, however, that her name was written on
the paper as well as that of Lupe Robles. During the
meeting Price stated23 that if the Union won the election
there would be fights among the employees as a strike
would result and the employees who were on strike would
fight those who wanted to work. Jaime contradicted Price
by telling Daniels to tell Price that she (Jaime) .had been
informed by the Union that there would be no strike.
Price replied that there wasn't a union that did not have a
strike. Jaime also asked what would happen if they, joined
the Union.24 Price replied that everything would be the
same, there would be no more money and benefits, that
when the Union asked for something they would say "no,
no, no."25 Jaime asked Daniels at the conclusion of the
meeting what the paper with her name and Robles' name
said. Daniels replied that it pertained to them and not to
her. Jaime said that she saw her name on it and asked
Daniels to ask Bunch what the paper said as they were
about to go home. Apparently she received no reply., As it
was 4:15 p.m., the usual quitting time, she went ;back to
her work station to look for the gum sheet to attach her
signature. She could not find it and went home. The next
morning, Jaime could not find her timecard- and ' she so
informed Daniels, who told her-that she had to go to the
office. When she went to the office-, Daniels and
Williamson -were there. Daniels told Jaime that the paper
handed to Price during his speech on the previous day
contained a statement that. Robles had said that, Jaime
had told some of the girls that those who did not join the
Union would be hurt. Jaime replied that Robles did not
say that and wanted Robles to be called into the office
"Fourteen or fifteen other Spanish-speaking employees were called to
this meeting at which Daniels acted as interpreter.
"Through Daniels.
"I interpret this question , as apparently did Price, to mean if the
employees selected the Union.
"Some of Jaime 's questions to Price during the meeting and Price's
answers were not interpreted as Jaime does have a fair understanding of
English
HICKS-PONDER COMPANY
together with an interpreter. After repeating the request
several times, Robles was summoned. Robles, in Jaime's
presence, stated that Jaime had told her that she would be
fired if she did not join the Union.26 Daniels then sent
Robles back to work saying that they had another matter
to discuss with Jaime. Daniels said Jaime was to go home
and she would be notified when to return as she had
wrongfully pasted a work ticket on her gum sheet after
having signed a ,paper saying that .she would not do so
again.27 A few days later a fellow employee notified Jaime
that Bunch wanted her to come in on July -27. When
Jaime met with Bunch on July 27, she- was told that her
employment was terminated. At the conclusion of her
direct testimony, Jaime denied that she had threatened
Robles in any way.28 Williamson's and Daniel's testimony,
to the extent it differs from Jaime's credited testimony as
recited above is not credited.
On cross-examination, Jaime testified that on Tuesday
morning, July 25, when she was sent home, Williamson
showed her the statement she had signed on the cardex
file.29 Jaime testified that she did not understand what she
was signing at the time but signed it because she was told
to. She also testified that her understanding and reading
ability of English is better now because she had been
going to school- -
Price testified that on July 24, at the conclusion of the
meeting in which he addressed a group of Respondent's
employees, one of which was Jaime, he was informed by
Williamson that Jaime had violated a company rule of
which she,. had been previously warned. Williamson told
Price that Jaime had placed five work tickets on the gum
sheet and that she had not completed five bundles.
Williamson said she had only completed three bundles and
had started a fourth. Price asked to be taken to Jaime's
work area, and Price, Bunch, Williamson and one other
person30 went to Jaime's machine and found one bundle
that had not been done; and another of which less than
half were done. Price further testified that immediately
prior to the foregoing incident, he had been addressing the
group of employees when Bunch attempted to hand him a
note. The note fell to the floor. Jaime returned the note
and handed ^ it to Price. Jaime's name was on it and the
note said that Lupe Robles had been threatened in some
way by Jaime." Having, seen her name on the note, Jaime
asked Price, some questions about, what was in it, what
threat she was supposed to have made to Robles, to get
Robles, , and to read the note. Price then told the
assembled employees what was supposed to have
happened, saying he did not know whether it had occurred
or not and refusing to identify the parties to the incident.
He told the audience that this is an example of things that
in his experience, happened when unions had come into
plants. Price specifically denied that he stated to Jaime or
any other of Respondent's employees that Respondent
would not negotiate if the Union won a majority; that
z"I note that Robles is the same person involved in Javier's case. I also
note that Roble's statement above, as to what Jaime allegedly, told her is
different than Daniels ' version.
"I understand the above conversation was between Williamson and
Jaime with Daniels acting as interpreter.
'Robles gave no testimony with regard to any matter concerning Jaime.
Respondent does not claim the alleged threat to Robles to be one of the
causes of Jaime's discharge . At any rate I credit Jaime's testimony that
she did not threaten Robles or any other girls in Robles' presence.
"Upper right hand corner of R-5-a, dated February t6, 1967. The
reverse side of this exhibit also contains a memorandum signed by
Williamson dated March 14, 1967. The reverse side is reproduced in the
center of R-5-a.
57
everything would remain the same, that the Respondent
would say "no, no, no" to any proposals for more money
or benefits; that there was no Union that did not cause
strikes.32
Sylvia Sims testified that on the day Price was making
a speech to some of the Spanish speaking operators, some
of the operators, including Jaime, did not have their time
sheets filled out and that she completed them. She went to
Jaime's machine and saw five work- tickets on Jaime's
gum sheet when only three and one half bundles were
completed. She thereupon went to Williamson and told
him about it. Sims then testified concerning a previous
occasion in February when a similar incident occurred. At
that time Sims had become quite emotional about it. Sims
also testified that she had warned Jaime about five times
concerning the same subject matter. She also gave
testimony about an incident when Jaime had mistakenly
sewed on pockets slightly different in color than the pants
and of an occasion when Jaime turned her machine on
while Williamson was admonishing her. Sims further
testified that the March incident recorded as' a warning on
Jaime's cardex file concerned a second occasion when
Jaime attached off color pockets However, after a series
of leading questions on direct examination by Price, she
stated that the shading of pockets occurred sometime in
July, just before Jaime's discharge.
On cross-examination, Sims reluctantly admitted that
an operator can place a work ticket on her gum sheet for
a bundle she expects to finish that day. She also admitted
that if the bundle is not finished that day it could be
finished the next day and that the rule against "clipping"
tickets concerned itself with stealing a ticket from another
operator to claim payment for work that the operator had
not performed. Sims refused to concede that Jaime was
never paid for work she had not done. She sought refuge
in saying she could not recall but admitted that such an
incident was never called to her attention. Finally she
stated that she had never told Williamson that she wanted
Jaime or any other employee discharged.
I conclude that Jaime was suspended and discharged
because of her known Union adherence and advocacy
rather than her alleged attempt -to "clip" a work ticket.
Basically the accusation against Jaime, although alleged
as "clipping", does not, in fact, constitute the offense of
clipping as defined in the company's hand book. My
appraisal of Sims and her testimony lends much support
to my conclusion. Sims apparently dredged up every real
and imagined dereliction on Jaime's part. She exaggerated
Jaime's deficiencies to such - an extent that it was beyond
understanding why Jaime was retained as long as she was.
Moreover, she confused the events and was extremely
reluctant to admit the fact that an operator could paste a
work ticket on her gum sheet when she commenced work
on a new bundle. I completely discredit Sims and find that
she was aware of Jaime's pro-union feelings and merely
called Williamson's attention to Jaime's failure to
complete the fourth bundle-prior to pasting it on her gum
sheet. It was only after Price's speech during which Jaime
took issue with Price, and after Price, Bunch, Williamson,
Sims and Daniels discussed the matter thoroughly that it
was decided to discharge Jaime. It was then that the
non-existent fifth bundle was invented to bolster the case
against Jaime. If the facts were otherwise, Williamson, in
a reasonable exercise of his authority, would have
38Probably Sims.
"R-2.
"As will appear , infra. I do not credit Price 's denials
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Jaime immediately. Instead Williamson
informed Price and the entire managerial hierarchy went
to Jaime's work area, and then only suspended her. The
next day when Jaime returned the first item discussed with
her was her alleged ' threat to Robles, not her pasting of
five tickets..I am convinced that with the election but a
few days away, Respondent was quite eager to seize upon
any colorable incident to discourage a favorable vote for
the Union. Jaime by her open advocacy of the Union
cause at the meeting addressed by Price was an inviting
target and was suspended and subsequently discharged for
that reason.
I conclude that Respondent violated Section 8(a)(3) and
(1) of the Act by suspending and discharging Jaime in that
the,alleged "clipping" of a work ticket was seized upon as
a pretext to demonstrate to Jaime and other employees
that Union adherence and advocacy would lead to loss of
employment.
The issue, as I see it, is not whether or not a valid
ground existed for Jaime's discharge, but whether the
stated ground was the real one. I believe it is rather plain
that Jaime was discharged for her known union
proclivities
E. The Speeches
Soon after Respondent became aware of the union
organizational attempt, Price arrived in Yuma. On
February 6, according to Price, he spoke to supervisory
employees outlining his concepts of how they should
conduct themselves. He frequently referred to the book he
had written.34 Later the same day Price made his first
speech to all employees. It was translated' into Spanish for
those who could not understand English.35 Price in this
speech attempted to persuade the employees to refrain
from signing union authorization cards and promised to
return to the plant to give the employees a complete
"education" on unions in general and this Union in
particular. He did not remember whether, on this
occasion, he explained how those who had signed union
cards could get them back but believed that he mentioned
this subject in a speech in March. As the list-of speeches
and subject , matter in evidence36 was prepared by
Respondent, and as only the speech of February 6 refers
to card signing, and asc.testimony by other employees
indicated that this matter was discussed by Price on
February-6, I find that Price did state on February 6, that
he would at a later date advise -those who had signed cards
how they could withdraw them. I find that the notice
posted on the bulletin in Respondent's plant on March 31,37
was in fulfillment of that promise. Respondent neither
produced nor -named any employee who had requested
such information and I find by volunteering this
information in the context of its antiunion campaign,
Respondent violated Section 8(a)(1) of the Act.
On February 9, Fred Bunch -reminded employees over
the public address system38 that Price would soon return
to speak to them further about unions.
Price made two speeches on February 13, two on
March 17, two on April 11, one on June 22 3' and 12
speeches to 12 different groups on July 24, 25, and 26.6°
"J. P. Stevens & Co., 380 F 2d 292, 300; Ulbrich Stainless Steels, Inc.,
164 NLRB 130.
4R-3
"Eddie Coronado was the interpreter on this occasion
"G.C 2(a)
"G C 2(e)
"Translated by Daniels.
Thus it is admitted that Price made at least 20 speeches
prior to the Board-conducted election of July 28.
Bunch, in addition to the speech he made on the public
address system on February 9, made three speeches on
May 17, 12 speeches from July 10 to' July 20, and one
speech on July 27.41 Thus it is conceded that Bunch made
a total of at least 17 speeches. From July '10 to July 27,
the day before the election, Bunch and, Price together
made a total of about 24 speeches.
Price testified that all of the speeches were designed to
educate the employees concerning unions. The education
consisted to some extent of tales of-Price's experiences in
various plants throughout the country with which he was
associated as Counsel. He told his audiences of the
violence, injuries, loss of jobs, arrests, and other dire
consequences resulting from union activities. He pointed
out, that even where the Union was successful, no contract
was negotiated or a very poor one was achieved. The
General Counsel characterized these accounts as a "trail
of blood" commencing in 1952.-02
One witness described the speeches as bringing up the
disadvantages of unions without -mentioning any
advantages. Price, attempting-to justify the speeches,
stated the purpose of the speeches was designed to
persuade the employees against representation by a labor
organization. Bunch followed Price's pattern in his series
of speeches emphasizing violence, strikes, discord, and
danger of loss of jobs.
During the speeches, particularly those in the last week
or two, addressed by Bunch and Price to'groups of 15,43
questions were asked by employees.44 -
I credit the testimony of the General Counsel's
witnesses that both Bunch and Price during the speeches
and in response to questions -said'
1. That if the Union won, the election the employees
would derive no benefits whatsoever
2. That Respondent would say ."no, no, no" to any
proposal by the Union .4-1
3. That 'all unions engage in strikes and that the Union
involved herein, in order to achieve anything for the
employees, would have to call a strike in Respondent's
plant.
4. That loss of jobs would result from a strike.46
5. That there would be fighting,violence; and injuries.41
Having in mind the economic and ethnic composition
of the rank-and-file employees, the impact of the above
type of "education" can be readily imagined.' Without
unduly emphasizing the nature of the employee
population, I find the above statements violative of
Section 8(a)(1) of the Act as they go far beyond the
protection afforded by Section 8(c) of the-Act. When
these statements are considered in the context of other
conduct engaged in by Respondent, as recited heretofore
and hereafter, together with the makeup of the employee
"This speech concerned the Representation Hearing held on that date. -
"Daniels interpreted where necessary
All speeches translated by Daniels where necessary.
42No complete text of any of the speeches was available.
"There were about 24 such speeches.
44It was during the questioning periods that Javier and Jaime
demonstrated their union adherence. ,
"Price admitted using the phrases "no , no, no" but denied using it, in
this context . I do not credit his denial
"I do not credit Bunch's and Price's assertion that the distinction
between economic and unfair labor practice strikes was explained.
4'G C. 2(f), a message to employees dated July 27, in much milder terms
clearly was designed to refresh the memories of the employees with regard
to the matters as detailed above in the speeches.
HICKS-PONDER COMPANY
complement, it is readily understandable that a wave of
fear permeated the employees and convinced them of the
futility of seeking union representation. Under all the
circumstances, I find that this was the end result and that
Respondent deliberately embarked on its anti-union
campaign to accomplish this result.
The remarks of Price and Bunch were made in the
supervisors' cafeteria to small groups whose attendance
was compulsory. Systematic exposure of employees to
antiunion speeches, not dissimilar to that found here, have
been held inherently coercive and grounds for setting an
election aside.48 In view of the numerous speeches made to
ensure complete coverage the threats upon employee
freedom of choice in the forthcoming election, assume
added significance.
I conclude that the speeches of Price and Bunch
constituted violations of Section 8(a)(1) of the Act.
F. Other 8(a)(1)
Williamson sometime in February, called Javier into
the office and in the presence of Daniels accused her of
insubordination because Javier had told Daisy Tomlin, a
supervisor, not to talk to her as Tomlin would get in
trouble.4' Javier explained that Williamson had told Lydia
Luera, another supervisor, and a friend of Javier's, not to
associate with Javier because it didn't look right for a
supervisor to talk to Javier during the union
organizational drive. Javier remained in the office for
1-1/2 hours, the last 20 minutes after 4:15 p.m., the
normal quitting time and after Daniels had left Javier
was paid at the overtime rate from 3:50 to 4.35 p.m.
During the conversation, Williamson told Javier that he
knew that Luera was at Javier's house during a union
meeting. Javier denied this, saying Luera was at her house
2 or 3 hours before the meeting. Williamson, after asking
her opinion of the Union, told her not to threaten anyone
if they refused to sign union cards.
I find this incident violative of Section 8(a)(1) of the
Act in that it constituted unlawful and coercive
interrogation and gave the impression of surveillance.
Manuel R. Chavez testified that sometime in March,
Daniels asked him if he was trying to get a certain girl to
sign a union card. Also in the same month, Daisy Tomlin
approached employee •Jubentina Sanchez and asked her
what she thought about the Union.
I find that each of these incidents constituted
independent violations of Section 8(a)(1) in that Daniels'
question is designed to inhibit union activity and the
Tomlin question is designed to elicit information
concerning union sympathy. Where, as here, a union
organizational campaign is in progress and management
has made clear its strong union antipathy, such questions
tend to have a coercive effect. Illustrative of the above is
Sanchez' reply to Tomlin's question. Sanchez told Tomlin,
"I don't know nothing about the Union." The fact is that
Sanchez had signed a union card earlier but considered it
necessary to be untruthful on this subject.50
I also find violative of Section 8(a)(1) Williamson's
question and request to Sanchez in April. Williamson,
according to Chavez' credited testimony, asked him if he
knew anyone who had signed the union cards. Chavez
"General Shoe Corporation , 97 NLRB 499, Economic Machinery, 111
NLRB 947; Lenkurt Electric Company , Inc, 169 NLRB No. 127.
"Javier had asked Tomlin for a cigarette and then decided against it.
She then told Tomlin that she did not want Tomlin to get in trouble.
"Tomlin 's and Daniel 's denials are not credited.
59
replied that he did not. Clearly the question is an attempt
to enlist Chavez as an informer to uncover union
adherents.51
I find that Williamson told Javier when he suspended
her on July 27 not to cast a vote in the election scheduled
for the next day. I find this statement to constitute a
violation of Section 8(a)(1) of the Act.
G. The Log
During the course of the hearing Price attempted to
introduce into evidence part of a page from a book
identified as a "log" by Daniels. At the direction of Price,
Daniels refused to testify even in response to a subpoena
served by the General Counsel.52 At Price's direction
Daniels refused to produce the log. Price, himself, also
refused to produce the log when requested by the General
Counsel and ordered by the Trial Examiner. Testimony by
Daniels and Williamson established that the log was kept
by Daniels pursuant to Price's instruction after his first
visit, and that it contained all "unusual" events and
conversations occurring in the plant including matters
pertaining to union activity. Under these circumstances I
ruled that it was proper for the General Counsel to
subpoena and examine the log. Respondent, through
Price, refused to abide by the Trial Examiner's instruction
to produce the log. I find that the production of this log
would disclose evidence unfavorable to Respondent. I
further find that the log was a crude attempt to
memorialize for Respondent information which would
establish the identity of those persons engaged in union
activity and which would record all such events and
conversations. The evidence warrants an mference that
employees and supervisors were encouraged to report all
such incidents. Apparently Robles, in order to ingratiate
herself, made such reports and, as described above,
Respondent reacted to the information supplied by her.
Under the circumstances, I find that the maintenance of
the log constituted interference, restraint and coercion in
violation of Section 8(a)(1) of the Act in that the
maintenance of such- a log was designed to inhibit
employees in their rights under Section 7 of the Act by
encouraging employees to report and identify union
adherents and union activity.
H. Credibility of Witnesses
In the preceding sections of this decision I have
indicated my disbelief of crucial elements of the testimony
of Respondent's witnesses. Although the record itself
adequately supports my conclusions, I believe a few
additional observations are warranted. Additionally, this
hearing is rather extraordinary because Respondent's chief
witness was also Respondent's chief adviser and
spokesman during its antiunion campaign and thereafter
appeared at the hearing as Respondent's trial counsel.
Initially it seems fair to comment that Price appeared
to be the architect and in full charge of the antiunion
campaign waged by Respondent. Not only did Price plan
the strategy, but also undertook to play the leading role in
the campaign. As the General Counsel cogently observes
such activities are not normally that of an attorney.
Congress in the 1959 amendments to the Act recognized
" General Automation Mfg., Inc., 167 NLRB No. 66.
52Daniels subsequently was called by Respondent and cross-examined by
the General Counsel. The General Counsel was given complete latitude in
cross-examintion.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the distinction between attorneys providing legal services
and those acting in a nonlegal labor relations capacity."
Accordingly, when Price cast himself in his several
capacities in this case he became not only a participant in
the commission of some of the unfair labor practices
found herein but also an important witness for
Respondent
In view of the foregoing, I find that Price was a witness
with a high personal interest. It follows that his testimony
must be subjected to the closest scrutiny.
In this regard his testimony concerning the reasons for
Respondent's failure to produce Jaime's gum sheet
warrants further discussion Price initially attempted to
have the Trail Examiner believe that the attorney
investigating the case assured him that only Jaime's
suspension, not her discharge, was in issue. As pointed out
heretofore, this is a distinction without a difference
Assuming, arguendo, that there could be a difference, the
evidence, nevertheless, shows that this was an untruthful
statement. Price places the conversation with attorney
Ziprin as occurring about September 25. However, in a
statement prepared by Price and signed by Bunch,
Williamson and Daniels on October 3,50 it is asserted; " .
The allegation is that Jaime was discharged because of
her union activities. This allegation is denied."
Though this joint statement of Daniels, Bunch and
Williamson was dated October 3, Price forwarded it to the
attorney with a covering letter dated September 30.55
Later, after being shown the above correspondence,
Price stated that he had a conversation with the assistant
to the Regional Director in October, at which time he
received the assurance that the issue was the suspension of
Jaime not her discharge. As this was a conference to
discuss possible settlement, it hardly serves as an excuse
for the claimed destruction of the gum sheet.
Price's testimonial account with regard to his speeches
is quite disjointed and contradictory. Initially Price
offered to repeat his speeches verbatim When deterred by
the Trial Examiner, he stated that the essence of his
book56 was in fact his speech. On cross-examination when
asked for a detailed statement of what he said, he
confessed that he could not remember what he said on any
particular occasion The best he could do was to
summarize some of the subjects he covered, including the
"bloody trail" of his experiences In addition, Price's
failure to produce the log when ordered to do so after
Daniels surrendered possession of it to him, warrants an
inference that Price was unwilling to have the truth
disclosed. Price's general demeanor, his characterization
of himself as agent "007", and other remarks while
testifying under oath contributed to my overall judgment
that he was a witness who was lacking in candor, and was
not averse to contriving conversations and evidence which
he thought would put himself and Respondent in a more
favorable light.
Daniels, sitting at the counsel table with Price and
assisting him at various times, refused to produce the
"log" when it was in her possession in the courtroom or
to testify when called to the witness stand by the General
Counsel. Her failure to produce and testify was at the
direction of Respondent's counsel, accordingly I do not
"Reporting and Disclosure Act of 1959, Section 203 (b)(1) and (2) See
also John Edward Price v Willard Wirtz , 58 LRRM 2501 I leave to the
Board to make an independent appraisal of Price's conduct as an attorney
'G C 7
"Price apparently knew what the statement would contain four days
before it was signed
"R-3
draw any inference against her by this conduct. However,
her contradictory and untruthful testimony concerning her
reasons for her frequent trips in the vicinity of
Robertson's apartment and house demonstrated a desire
to mislead the Trial Examiner Her feigned ignorance of
the meaning and purpose of a "green card" was, in my
opinion, false. So was her professed ignorance of industry
prevailing in the area. Her professed lack of knowledge
concerning various records kept by Respondent was far
from convincing. She was personnel director of a plant
employing 200-250 employees, half of whom at least were
Spanish speaking and approximately 50 percent were
so-called "green carders." It is incredible that she did not
know much more than she was willing to admit especially
when she acted as chief interpreter for the supervisory
hierarchy in their contacts with rank-and-file employees I
find Daniels to be a witness unworthy of credit.
Williamson's total credibility is completely impaired by
his question to Price while testifying under oath. On
redirect examination he was asked a compound question
concerning the log He commenced an answer and then
hesitated, whereupon the Trial Examiner prompted by
saying, "Tell us what you know." Williamson, looking
directly at Price, then asked, "As far as I know, should I
tell him?" Price did advise him to tell what he knew but
Williamson having sparred for time, apparently decided to
be less than candid and merely acknowledged that there
was a log being kept for Price. Williamson's reluctance to
testify to the true facts concerning the log becomes
obvious when the above testimony is contrasted with
testimony he gave earlier on cross-examination.
Williamson was asked if he had received instructions to
report things about the Union to Mrs Daniels He
replied, "not about the Union" The following interchange
then occurred-
Q. (by Mr Mast) What were your instructions
concerning reporting to Mrs. Daniels?
A. Any unusual incidents.
Q. Who gave you those instructions? (no response)
TRIAL EXAMINER: You mean you can't remember9
THE WITNESS: No, I think it is probably my own.
Later Williamson admitted he knew Daniels was keeping
a log. He also stated that he would not deny that some of
the things he said to people in her presence found its way
into the log .57 In assessing Williamson's demeanor on the
witness stand and his testimonial account, I place little
credence in his testimony where it is in conflict with other
credited testimony or the conclusions drawn herein.
Fred Bunch, liberally sprinking his testimony with the
phrase "per se," did not impress the undersigned as a
witness willing to disclose the true facts. As plant
manager, he, like Price, served as a spokesman for
Respondent. It was Bunch who made the final decision to
suspend Javier and to discharge Jaime. I have concluded
that Bunch's testimony cannot be credited where it is in
conflict with that of the witnesses called by the General
Counsel or where it is contrary to findings made in this
Decision.
"This oblique admission is typical of Williamson's aversion to be
forthright. It is further demonstrated by his evasion of a direct reply to
whether or not he was interested in the union organizational campaign
When Williamson 's demeanor and testimony is viewed as a whole, I place
no credence in his recital where it contradicts testimony offered by the
General Counsel ' s witnesses or to the inferences I have drawn herein
HICKS-PONDER COMPANY 61
V. The Objections to the Election
The representation petition in Case 20-RC-1639 was
filed on May 26, 1967. A Stipulation for Certification
upon Consent Election was executed by the parties on
June 22, 1967. An election by secret ballot under the
supervision of the Regional Director for Region 28 was
conducted on July 28, 1967. The results of the election
showed that the Union did not obtain a majority of the
valid votes cast and thereafter, on August 4, 1967, filed
timely objection to the election and to conduct affecting
the results of the election. On November 9, 1967, the
Regional Director, after investigation of the objections,
issued and served on the parties his Report and
Recommendations on Objections to Election and Order
Directing Hearing 58 The Regional Director in his report
found that Objections 1, 2, 3, 4, and 6, also alleged as
unfair labor practices in Case 28-CA-1575, raised
substantial issues of fact and credibility which can best be
resolved by a hearing. He, therefore, ordered that a
hearing be held before a Trial Examiner for the purpose
of taking evidence in connection with said objections. The
Regional Director simultaneously with his report issued an
Order Consolidating Cases and Notice of Hearing. The
Board, on November 27, 1967, adopted the Regional
Director's recommendations overruling Petitioner's
Objections 5, 7, and 8 and ordering the remaining
objections processed pursuant to the Notice of Hearing.
The undersigned duly designated Trial Examiner having
arrived at his decision in Case 28-CA-1575, as detailed
above, finds merit to Objections 1, 2, 3 and 4.59
As the conduct which I have found in section III of this
Decision continued during the time period which
commences with the filing of the petition to the time of
the election,'" I find that this conduct grossly interfered
with the employees' right to a free and untrammeled
choice in the election.
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Hicks-Ponder Company, 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 the discriminatory suspension of Theresa Javier
on July 27, 1967, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(3) and
8(a)(1) of the Act.
4. By the discriminatory suspension of Josephine Jaime
on July 24, 1967 and by subsequently discharging
Josephine Jaime on July 27, 1967, and by its refusal to
reinstate Josephine Jaime because of her union adherence,
advocacy and sympathy, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
5. By engaging in conduct described above, in section
III of this decision, Respondent has interfered with,
threatened, and coerced its employees in the exercise of
"G.C. 1(h).
"Although Objection 5 as stated by Petitioner was dismissed by the
Regional Director, I have found that Respondent did unlawfully solicit
employees to withdraw their union authorization cards The matter, in my
opinion, was fully litigated.
"Ideal Electric Co. 134 NLRB 1275
the rights guaranteed to them in Section 7 of the Act and
thereby has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
6. By engaging in the conduct described above during
the period after the filing of the representation petition to
the date of the election, Respondent illegally and
substantially affected the results of the Board election
conducted July 28, 1967.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. All allegations of the complaint, as amended, not
found herein to constitute unfair labor practices are
hereby dismissed.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, it will be recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
of the Act by conducting an antiunion campaign
including: (1) unlawful solicitation of its employees; (2)
unlawful interrogation and surveillance of meeting places
of its employees who gathered to engage in concerted
activity for their mutual aid and protection; (3) threats,
interference, coercion, and intimidation of its employees
by a series of speeches designed to frustrate the
self-organization campaign in progress, and having found
Respondent thereby interfered with its employees' rights
guaranteed to them under Section 7 of the Act, I shall
recommend an order that it cease and desist from such
conduct.
Having found above that Respondent by its conduct
described above during the crucial time commencing with
the filing of the petition to the date of the election,
substantially and effectively interfered with its employees'
right to a free and untrammeled election, I shall
recommend that the election held on July 28, 1967, in
Case 28-RC-1639, be set aside and a new election be
conducted at an appropriate time to be determined by the
Regional Director for Region 28.
Having found that Respondent discriminated against
Theresa Javier by suspending her on July 27, 1967, I shall
recommend that Respondent make her whole for any loss
of pay that she may have suffered by reason of the
discrimination against her, by payment to her of a sum of
money she would have normally earned from the date of
her suspension until the date of her reinstatement. The
backpay to be computed in the manner described below
with reference to Josephine Jaime.
Having found that Josephine Jaime was
discriminatorily suspended and subsequently
discriminatorily discharged, I shall recommend that
Respondent offer her full reinstatement to an equivalent
position, without prejudice to her seniority rights and
privileges, and Respondent make her whole for any loss of
pay that she may have suffered by reason of Respondent's
discrimination against her by payment to her of a sum of
money equal to that which she would have normally
received as wages from July 24, 1967, the date of her
suspension, until the day Respondent reinstates her, less
any net earnings for the interim period. Backpay is to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB
289, with interest at the rate of 6 percent per annum to be
computed in the manner set forth in Isis Plumbing &
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heating Co, 138 NLRB 716.
I find that the unfair labor practices found herein strike
at the very roots of employees' rights which the Act is
designed to prevent. Accordingly, I shall recommend a
broad cease and desist order.
In view of the fact that a large proportion of the
employee complement are Spanish speaking, I shall
recommend that the notice to all employees which I shall
order to be posted, shall be printed distributed and posted
in both Spanish and English
The General Counsel, in his brief, requests certain
remedies going beyond the usual because of the "massive
anti-union campaign speeches, and the passage of time
before a remedy can be affected." I shall treat with each
of his requests below:
1. I approve and recommend that the notices, one in
English and one in Spanish, be mailed to each employee
who was on the payroll during the period of the violations
found herein and each employee who is currently on the
payroll. The reason given by the General Counsel that it
would reach a greater number of employees past and
present and thus more effectively remove the effects of the
unlawful conduct of Respondent, seems entirely valid.
However, in addition, it is my view that the mailing
recommended would enable each of the addressees to
digest at his or her leisure, without fear of observation,
the import of the Notice to All Employees, thereby
leading to a better understanding of the rights guaranteed
to employees under the Act.
2. 1 deny the General Counsel's request to require the
publication of the notices in a newspaper of general
circulation in the area of Yuma, Arizona. I cannot
perceive that this will serve a purpose in view of my
recommendation immediately above.
3. I shall recommend that the posting period be
extended to 120 days rather than the customary 60 days.
4. I deny the General Counsel's request that the Union
be awarded equal time if Respondent makes additional
speeches regarding union organization to employees within
the next 6 months. While the evidence warrants an
inference that attendance of employees at the speeches by
Price and Bunch was required, it has not been shown that
the Union at any time made a request for similar
privileges and was denied an opportunity to address the
employees. I cannot speculate what the result would have
been if such a request had been made.
5. I shall recommend, as requested by the General
Counsel, that the Union upon request shall be furnished a
current list of employees together with all corrections for
a 6 month period.
6. I deny the General Counsel's request that
Respondent be required to post the notices at its other
plants. Although Respondent's El Paso plant was referred
to in the speeches, I do not believe that such posting is
warranted.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and the entire record in the case, I
recommend that Respondent, Hicks-Ponder Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Soliciting employees to withdraw their union
authorization cards.
(b) Informing its employees that in the event the Union
is certified as their collective-bargaining representative
that Respondent would not negotiate in good faith; that
no collective-bargaining agreement would be
consummated; that strikes and violence would inevitably
occur; that wages, hours and working conditions would
remain the same.
(c) Engaging in surveillance of the meeting places of
employees interested in union organization. -
(d) Discouraging membership in Southern California
Joint Board of Amalgamated Clothing Workers of
America, AFL-CIO, or in any other labor organization by
suspending, discharging, or in any other manner
unlawfully discriminating against any of its employees in
regard to hire or tenure of employment or any term or
condition of employment.
(e) In any manner interfering with, restraining, or
coercing its employees in their right to self-organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activity.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer to reinstate Josephine Jaime to her former or
substantially equivalent position without prejudice to her
seniority or other rights and privileges, and make her
whole in the manner described in "The Remedy" section
of this Decision for any loss of earnings suffered by her by
reason of the discrimination against her.
(b) Make Theresa Javier whole for any loss of earnings
suffered by her by reason of her discriminatory suspension
on July 27, 1967.
(c) Notify Josephine Jaime, if presently serving in the
Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Furnish the Union with a current list of employees
as of the date of the receipt of this Decision and
Recommended Order and supply all corrections monthly
until the date of the new election as fixed by the Regional
Director for Region 28.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(f) Post at its Yuma, Arizona, plant copies of the
attached notice marked "Appendix "61 Copies of said
notice on forms provided by the Regional Director for
Region 28, shall, after being duly signed by the
Company's representative, be posted by the Company
immediately upon receipt thereof, and be maintained by it
for 120 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Mail copies of attached notice in- Spanish and
English to all persons in its employ during the period of
the violations found herein and also those in its employ on
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
HICKS-PONDER COMPANY
the date of this Decision and Recommended Order
(h) Notify the Regional Director for Region 28, in
writing, within 20 days from the,date of receipt of this
Decision what steps have been taken to comply herewith.62
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 28 , in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a Trial at which, all sides had a chance to give
evidence, a Trial Examiner of the National Labor
Relations Board found that we, Hicks-Ponder Company,
violated the National Labor Relations Act, and ordered us
to post this notice.
The Law gives all employees these rights:
To engage in self-organization,
To form, join, or help unions,
To bargain collectively through a representative of
their own choosing,
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT tell our employees that union
organization means strikes and violence and loss of
jobs.
WE WILL NOT spy on the meeting places of our
employees who attend union meetings.
WE WILL NOT threaten our employees that if the
Union wins a majority of the votes cast in an election,
it would not help our employees as we would say "no,
no, no" to all union demands.
63
WE WILL NOT question our employees whether they
are in favor of the Union or are helping the Union, or
ask our employees to tell us what employees favor the
Union.
WE WILL NOT discharge, punish, or refuse to employ
any employee for helping, joining, or engaging in other
activity in behalf of the Union.
WE WILL NOT interfere with efforts of our employees
to act together for better wages, hours, or conditions of
employment.
THE TRIAL EXAMINER found that Theresa Javier was
suspended and Josephine Jaime was discharged because
of their advocacy of union organization and because
they were active in helping the Union.
WE WILL therefore make up any pay lost by Theresa
Javier by reason of her suspension and pay her 6
percent interest thereon.
WE WILL offer to employ Josephine Jaime and make
up any pay she lost from July 24, 1967, and pay her 6
percent interest thereon.
HICKS-PONDER COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Josephine Jaime if presently
serving in the Armed Forces of the United States of her
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
Building and U.S. Court House, 500 Gold Avenue, Room
7011, P.O. Box 2146, Albuquerque, New Mexico 87101,
Telephone 247-0311, Extension 2556.