The Borden Co.

National Labor Relations Board - Board Decisions

Mar 25, 1966

157 N.L.R.B. 1100 (N.L.R.B. 1966)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Borden Company and International Union of Electrical,
Radio & Machine Workers, AFL-CIO. Case No. 23-CA-2011.
March 25, 1966
DECISION AND ORDER
On November 19, 1965, Trial Examiner William Seagle 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.'
Pursuant to the provisions of Section 03(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that, no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings,2 conclusions,
and recommendations of the Trial- Examiner with the following mod-
ifications, additions, and exceptions.
1. The Trial Examiner concluded, and we agree; that the Respondent
engaged in numerous violations of Section 8 (a) (1) of the Act, includ-
ing unlawfully interrogating and threatening employees, promising
and conferring benefits on employees to discourage them from support-
ing a union, and creating the impression of surveillance of union
activities.3 Among the instances of unlawful interrogation found
by the Trial Examiner was the questioning by Texas Industrial Sur-
veys, Inc., of applicants for employment with the Respondent, con-
cerning their prior union activities. The Trial Examiner relied for
this finding on testimony of employees Miguel Flores and Herple A.
'The Respondent's request for-oral argument is hereby denied because the record, in-
cluding the Respondent 's exceptions and brief, adequately presents the issues and the posi-
tions of the parties.
2 The Respondent excepts to the Trial Examiner's determinations with respect to issues
of credibility , contending in support thereof that the Trial Examiner was prejudiced.
After a careful review of the record , we conclude that the Trial Examiner's credibility
findings ,are not contrary to the clear preponderance of all the relevant evidence, and,
accordingly , we find no basis for disturbing his credibility findings in this case, and reject
the charge of prejudice . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F.
2d 362 (C.A. 3).
31n view of these findings that the Respondent engaged in various violations of Section
8(a) (1) of the Act, we deem it unnecessary to decide whether the showing of the movie
"And Women Must Weep" was, as found by the Trial Examiner , a further violation of
the Act.
157 NLRB No. 93.
THE BORDEN COMPANY 1101
Ellis III. As pointed out in the Respondent's exceptions, however,
Flores' testimony as to this matter covered an interview which occurred
prior to the limitations period of Section 10(b) of the Act. Further-
more, the complaint alleges such interrogation only as to "an
employee." Accordingly, while we adopt the Trial Examiner's con-
clusion that the Respondent engaged in unlawful interrogation of
Ellis, we do not rely on the testimony of Flores.
2. The Trial Examiner also found that the Respondent's systematic
visits to employee homes for the purpose of dissuading them from
supporting a union constituted a per se violation of Section 8(a) (1)
of the Act. The Respondent excepts to this finding an the grounds
that the legality. of the home visits was not alleged in the complaint
to be violative of the Act per se, and that this issue was not litigated
at the hearing. We find merit in these exceptions. The relevant
allegations of the complaint are concerned with the statements made
by the Respondent's agents during such visits, and the testimony elic-
ited by the General Counsel at the hearing concerned these statements.
Accordingly, we adopt the Trial Examiner 's conclusion that the
Respondent's visits to employee homes were violative of the Act only
to the extent that the Respondent's agents, in the course of these visits,
made coercive remarks to the employees.
3. The Trial Examiner found, and we agree that the Respondent's
discharge of Alejandro Vasquez was violative of Section 8(a) (3) of
the Act. The Respondent contends that the testimony of Elias Adame,
which was offered by the General Counsel primarily to establish that
the Respondent had knowledge of Vasquez' union activities, should
be stricken because the General Counsel failed to produce an affidavit
which Adame had signed in connection with charges which were filed
in another case and subsequently withdrawn. As we do not rely upon
Adame's testimony, but find, as did the Trial Examiner , that there is
ample evidence, without Adame's testimony, to establish that the
Respondent had knowledge of Vasquez ' union activities , we find that
there was no prejudice in the General Counsel's failure to produce
this affidavit.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, The Borden Company, San
Antonio, Texas, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, with
the following modifications:-
1. The Recommended Order is modified by deleting from paragraph
1(b) the following phrases: "exhibiting to its employees any film con-
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
veying the message that union organization would be futile and that
strikes and violence are the inevitable concomitants of union orga-
nization," changing the semicolon after "fellow-employees" to a period,
and deleting the remainder of the paragraph.
2. Add as a separate paragraph under Section 2(a) of the Trial
Examiner's Recommended Order the following:
"Notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces."
3. The notice attached to the Trial Examiner's Decision marked
"Appendix" is modified by deleting from the second full paragraph
the following phrase : "Or exhibit to our employees any film conveying
the message that union organization would be futile and that strike
and violence are the inevitable result of union organization", placing
a period after "fellow-employees", and deleting the remainder of the
paragraph.
4. Add the following immediately below the signature line at the
bottom of the notice attached to the Trial Examiner's Decision :
NOTE.-We will notify Alejandro Vasquez if presently serving
in the Armed Forces of the United States of his right to full rein-
statement , • upbu application in accordance with the Selective
Service'Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner William Seagle at San Antonio , Texas,
on August 9 and 10 , 1965, on a charge filed March 31, 1965 , and a complaint issued
on May 20, 1965, alleging violations by the Respondent of Section 8(a) (1) and (3)
of the Act, which consisted of numerous acts of interference , restraint , and coercion of
the.rights of its employees in the exercise of their rights under the Act, and of the
discriminatory discharge of Alejandro Vasquez, one of its employees.
Upon consideration of the entire record , including the post-hearing briefs filed by
counsel for the General Counsel and for the Respondent , and in view of my observa-
tion of the demeanor of the witnesses , I hereby make the following findings of fact:
1. THE RESPONDENT
• The Respondent is a New Jersey corporation which has maintained an office and
place of business in San Antonio , Texas, hereinafter denominated the San Antonio
plant , where it has been engaged in the processing of milk, milk products , and ice
cream , and in the wholesale and retail distribution of these products . The San
Antonio plant is the only facility of the Respondent involved in the present proceeding.
During the year ending December 31, 1964 , a representative period , the Respond-
ent, in the course and conduct of its business operations at its San Antonio plant,
purchased milk, milk products , and other goods and materials valued in excess of
$50,000 , and these products , goods, and materials were received directly by the
Respondent from points located outside of the State of Texas. - During the same
geriod , the Respondent. sold from, its San Antonio plant goods valued in excess of
500,000.
THE BORDEN COMPANY
t
1013
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio & Machine ' Workers, AFL-CIO, is-a
labor organization that has sought to organize the employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Acts of interference, restraint, and coercion
1. The Borden managerial hierarchy
The top managerial hierarchy of the Borden plant in San Antonio, Texas, which
normally has , a complement of approximately 200 production and maintenance
employees , consists of General Manager Lon Green , General Superintendent H. C.
Palmer, Retail Sales Manager X. O. Pickens, Wholesale Sales Manager J. E. McCarty,
Milk Plant Superintendent Homer F. Vaughn, Ice Cream Plant Superintendent Peyton
W. Tucker, Shipping Department Superintendent Francis Anthony Bonnemaison, and
Office Manager Edwin Lawrence (Buddy) Loessberg.
In the second rank of the supervisory hierarchy are the retail and wholesale route
supervisors and working foremen who are under the various managers or superin-
tendents. Thus there are five retail route supervisors, who work under Pickens; four
wholesale route supervisors who work under McCarty; and Vaughn, Tucker, and
Bonnemaison each also has a working foreman under him. As most of the route
supervisors or working foremen played either no role ,at all or relatively minor roles
in the commission of the Respondent 's unfair labor practices , it is unnecessary to
mention their names. However, those who did play some role in carrying out the
orders of the top managerial' hierarchy, or who made statements implicating them
in the commission of the unfair labor practices were Roger Flores, who was the
working foreman under Bonnemaison ; Cliff Wetz and Anthony H. (Tony) Rodriguez,
who were retail route supervisors under Pickens; and O. C. (Smitty) Deoppenschmidt
and Richard Morales, who were wholesale route supervisors under McCarty.
It is admitted in the Respondent's answer that the individuals constituting the top
managerial hierarchy are supervisory, employees within the meaning of Section 2(11)
of the Act. It was denied in the Respondent's answer that Roger Flores, Cliff Wetz,
Tony' Rodriguez, 0. C. Deoppenschmidt, and Richard Morales were supervisors
within the same provisions of the Act. It was stipulated at the hearing, however, that
Richard Morales and Tony Rodriguez bear the title of wholesale route supervisors,
and that Cliff Wetz bears the title of retail route supervisor. Lon Green, the top
executive of the San Antonio plant, testified, moreover, that these three individuals,
as well as, O. C. Deoppenschmidt, are considered by the Respondent to be super-
visors, which, indeed, they are, since they direct the,work of other employees; they
may recommend disciplinary action against them; and they have attended the periodic
meetings of supervisors.
The chief dispute concerns the status of Roger Flores, the working foreman under
Bonnemaison. Flores himself admitted that he sometimes checks the work of the
employees in the shipping department, and there is also evidence that he wrote
requisitions for parts, gave employees permission to go home early without first
checking with Bonnemaison and that like the other working foremen and route
supervisors he had attended the periodic meetings of supervisors. There is evidence,
moreover, that when Roger Flores was promoted to his foremanship, Bonnemaison
made an announcement to the employees that Roger Flores was to be his second in
command, or right-hand man, and that they were to obey his orders. I find, there-
fore, that Roger Flores, was also a supervisor within the meaning of Section 2(11)
of the Act.
2. The Respondent's hiring procedures and policies at the San Antonio plant
prior to the advent of the Union
Before the Union launched its attempt to organize the San Antonio plant, the
Respondent had retained Texas Industrial Surveys, Inc., an outfit that gave polygraph
or lie detector tests, to give such tests to applicants for employment. Admittedly,
applicants for employment in 1964 were asked by the polygraph operators whether
they belonged to any club, organization , or association .' However , Miguel Guillermo
Flores, who was hired by the Respondent as an employee in the ice cream department
of the San Antonio plant in May 1964, and Herple A. Ellis III, who was hired by the
Respondent as an employee in the milk manufacturing department in October 1964,
i This question was eliminated from the test, however , after the enactment of title VII
of the Civil Rights Act of 1964.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both testified that the polygraph operator who gave them their tests also asked them
specifically whether they had ever belonged to a union or had engaged in union
activities., Flores testified that he answered this question of the polygraph operator
in the affirmative . Ellis was not, asked about how he had answered the question,
and the record is, therefore silent in this regard.
Flores testified further that in his employment interview with Palmer that pre-
ceded his taking of the polygraph test Palmer, the general superintendent of the San
Antonio plant, asked him whether he could work without a union, and that he
replied in the affirmative. Flores' affirmative reply would tend to explain why he
was hired despite his admission to the polygraph operator that he had once belonged
to a union.
Another employee in the ice cream department, Josephine Garcia, testified, that
when she was hired on or about February 5, 1965, Tucker, the head of the depart-
ment , asked her whether she had ever worked in a plant where there was a union,
explaining that "the union wanted to get in the plant, and they didn't want it there,"
and that she told Tucker that she "agreed with him," whereupon she was hired.
The Respondent called as a witness Loessberg, the office manager of the San
Antonio plant, who testified that Texas Industrial Surveys was employed only to
test the honesty of its applicants for employment, and that it had not been authorized
to inquire into the prior union activities of applicants for employment. The Respond-
ent also called as a witness Ryerson D. Gates, a polygraph operator employed by
Texas Industrial Surveys, who testified that it was he who gave the polygraph test
to Ellis but denied that he had asked him about any prior connection on his part with
any labor organization, or that he, or Texas Industrial Surveys, had been authorized
to ask any such questions. Finally, the Respondent called Palmer and Tucker as
witnesses , and both of them also denied inquiring into the prior union activities of
any applicants for employment.
I credit, however, the testimony of Miguel Guillermo Flores, Herple A. Ellis III,
and Josephine Garcia with respect to their experiences as applicants for employment,
and reject the denials of their testimony by the Respondent's witnesses. Insofar as
the testimony of Ryerson D. Gates is concerned, he could hardly have remembered
all the questions he put to the numerous individuals whom he tested. He had no
written records of the tests, and his only basis for denying that he questioned appli-
cants concerning their union activities was that such questioning would not be part
of his ordinary routine. Since members of the Borden managerial hierarchy did not
shrink from putting such questions, there is every reason to suppose that they author-
ized their agents to put them to applicants for employment at the San Antonio plant.
Their denial of the authorization is, moreover, not credible in the light of their
subsequent actions to prevent•the Union from gaining the slightest foothold in the
San Antonio plant, and their general behavior while on the witness stand. I even
reject the denial of Tucker that he made the remarks attributed to him by Josephine
Garcia, although he claimed that he was on vacation between February 3 and 12,
and that she was hired before he left on his vacation. Neither Tucker nor Josephine
Garcia could have had an accurate independent recollection concerning the precise
date when she was hired, and the Respondent could readily have established this date
by producing her employment record, which, however, it failed to do.
3. The attempt to organize the Borden employees
Early in the first week of February 1965, two of the Borden employees, Alejandro
(Alec) Vasquez and Ray Gonzales, both of whom worked in the shipping depart-
ment under Bonnemaison, put their heads together, and decided that they could
improve their working conditions by getting union representation.
The initiative, it seems, came from Gonzales. He had a brother working for a
firm identified in the record only as "Friedrich's," which was a union plant, and his
brother had persuaded Gonzales that he would benefit from belonging to a union.
He then talked to Vasquez, who rounded up some of the employees, and six of them,
including Vasquez and Gonzales, met with Al Fenton, a representative of the IUE,
on February 5, 1965,2 at the Farmer's Bar on North Flores Street' in San Antonio.
The meeting took place in the evening after working hours.
Fenton explained to the employees who were present at the meeting the benefits
which they might derive from union organization, and all six of them signed union
authorization cards. The signers were Alejandro Vasquez, Ray Gonzales, Orlando
n All dates hereinafter mentioned will refer to 1965, unless otherwise specifically
indicated.
THE BORDEN COMPANY 1105
Rodriguez , Leo Adame , Juan Alfaro , and Victor Martinez.3 It is affirmatively shown
that all of the employees who signed union authorization cards at the February 5
meeting, except possibly Martinez, worked in the shipping department?
There appears to have been a number of other meetings of Borden plant employ-
ees, and other employees were solicited to sign union authorization cards. Vasquez
was quite active in this respect. He talked to about 10 employees , and induced 4
employees to sign union authorization cards but their identity is not established.
Two other employees than the six already mentioned, namely Alexander R. (Alec)
Sanchez, who worked in the milk department, and Miguel Guillermo Flores, who
worked in the ice cream department , signed union authorization cards. Sanchez
signed his card at the solicitation of either Vasquez or of Gonzales ,5 and Flores as
the result of a conversation with a fellow employee by the name of Manuel Luna,
who told him about the Union and the meetings at the Farmer 's Bar. Flores went
to one of these meetings , and signed a union authorization card while he was there.
It must not be supposed , however, that those pushing the Union succeeded in getting
many of the Borden employees to sign union authorization cards. In fact, only a
handful of the employees did so. Vasquez himself, in testifying on this subject, did
not claim any more than 13 signers.
4. The immediate reaction of the Borden managerial hierarchy to the union threat
It seems that the news of the efforts of Vasquez and Gonzales to organize the
Borden employees traveled fast indeed . Green had not become general manager
of the San Antonio plant until a few weeks before the first meeting at the Farmer's
Bar on February 5. However , almost immediately someone whom Green in his
testimony described merely as "a friend"-he remains a person unknown-telephoned
to Green , and acquainted the latter with the disturbing intelligence that union activity
was going on in the San Antonio plant . Two or three days later, while Green was
attending some meeting in Houston , Texas, he received a telephone call from
Pickens, his retail sales manager, who proceeded to inform his chief that "one of
his people had told him that there had been several of our employees who had
attended a meeting." In testifying about receiving these telephone calls, Green main-
tained that his unknown friend , although reporting the union activity , did not
mention who was involved in this activity , and that even Pickens did not mention
the name of the employee who had imparted the information to him. When Green
was asked the question : "Did he [Pickens] tell you who this employee was who had
given this information?" his reply was: "No, I don't believe that he did." This is
of course , incredible , particularly in the light of his subsequent activities.
It must have been almost as soon as Green returned from Houston that he pro-
ceeded to deal with the threat posed by the union activity . He called a meeting
attended by all his department heads to consider what to do about the situation. It
was decided to hold a series of group meetings with the employees in order to
"The cards themselves were not offered in evidence and the finding with respect to the
signers of the cards is based on the testimony of Vasquez . Orlando Rodriguez mentioned
Andy Cardena rather than Victor Martinez as present at the February 5 meeting. As the
recollections of Rodriguez with respect to the meeting were less precise than those of
Vasquez, I accept the testimony of the latter.
* Martinez was not a witness at the hearing , and it is not otherwise shown in what
department of the plant he worked.
5 On this point there is a discrepancy , seemingly, between the testimony of Sanchez and
Vasquez. Sanchez himself testified that he obtained the union authorization card which he
signed from Gonzales , and gave the card back to Gonzales . Vasquez testified that he
talked to some of the employees who did not attend the February 5 union meeting, and
"got about seven of them to sign cards ," among whom was Vasquez. Vasquez further
qualified this testimony, however, by pointing out that he could have talked to some of the
employees to whom others had also talked , "so I mean I couldn't say I had signed them."
Gonzales himself did not testify at all with reference to the signing up of Sanchez. It is
quite possible , therefore , that Vasquez may have solicited Sanchez to sign a union author-
ization card while Gonzales was also present , although the card signed by him was handed
to him by Gonzales . In any event , even assuming that Vasquez' memory may have been
faulty with respect to the signing up of Sanchez , there is no rational basis for discredit-
ing any other parts of his testimony . Quite apart from any other considerations, the
signing up of a particular employee is of such little importance that it would not be
reasonable to conclude that Vasquez was deliberately misrepresenting the truth
1106 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
dissuade them from supporting the Union . But its supporters were still successful
in maintaining-if Green' is to, be believed-their complete anonymity'. Thus;
Green testified:
Q. At this time did you ask the department heads if they had any union
people or union supporters-in their department?
A. I asked them if they knew of any.
Q. What were you told? •
A. No.
Q. None of them knew of any?
A. Except this one instance I gave you a moment ago.
Q. Mr. Pickens? '
A. Yes.
Q. But he didn't know the names of any-
A. No.
Q. Did he at any time tell you who this employee was that had informed
him-
A. I don't believe that he did.
Q. And you didn't ask him?
A. No.
5. The group meetings of February 16
The group meetings planned' by Green took place on February 16, and they were
held in the conference room of the plant. There were 6.or 7 of these group meetings,
each group consisting of 35 to 40 employees., The speaker at every one of them
was Lon Green, the plant manager, and he read a prepared speech to each"group
of employees .6
The speech, which ran to over 1,100 words, contained familiar forms of antiunion
propaganda but it also contained a stern warning against having anything to do with
the Union. Unions were accused of resorting habitually to chicanery in securing
signatures to union authorization cards; their interest was described as consisting
entirely of collecting dues, and levying fines and assessments, and the benefits that
they could confer upon employees were declared to be nugatory. Above all, Green
left the employees in no doubt that the Borden Company was opposed to union
organization.
The keynote of Green's speech was struck in its very first paragraph. "They say,"
declared Green, "that a small number of the men working here in our company
have signed union cards. This is a very serious matter, and I want to tell you how
we feel about this.. ." This feeling was that "we do not want a union in this
plant . . . we do not want you to sign a union card." Green then issued a dire
warning at the same time that he commented on the tactics which the union would
adopt. Thus he continued:
The people pushing this union thing are very tricky. One of them may call
on you. Do not sign a union card just to get rid of him or to make him leave
you alone. He will probably tell you that everybody has signed up with the
union except you ... when the truth is'that only a handfull [sic] of people in,our
company have signed up. He is likely to tell you that all you have to do is
to sign a card for the union and you will get all kinds of increased wages and
more benefits. The truth is that the union cannot guarantee any increased wage
or any increased benefits. Your wages and your benefits depend solely upon
your work with the company . . . they will be provided by the company, and
the union will never give any of these things to you. The signing of a union
card is serious and it could have a far-reaching effect on you, your family,
and your job with the Borden Company.
After dwelling in a longish paragraph upon the theme that the only reason the Union
was interested in the employees was to get as much money out of them as possible,
Green issued his invitation to the employees to report on the activities of the Union
in the following words:
If anyone pushing the union approaches you and tries to get you mixed up
with them, we would like for you to tell us about it. They will tell you to
keep your mouth shut about the matter, and they will try to make you afraid
to talk to the company, because they want to get you hooked so that,you must
follow their orders.
Green then waxed autobiographical. He dwelt upon the 30 years he had worked
for the Borden Company, although he had arrived at the San Antonio plant only 3
8 The speech is in evidence as Respondent 's Exhibit 5.
THE BORDEN COMPANY. • 1107
weeks previously . He told how he had started handling bottles and cases, and rolling
10-gallon milk cans, and how he had proceeded to work his way through practically
every Borden Company operation. For this reason he knew all about the worries
and problems of the employees, and he promised them that they would find him a
good friend indeed. But, he pleaded, "please don't go throw a monkey wrench into
our affairs by bringing an enemy into this plant, because if the union ever got in
here, we would be fighting among ourselves instead of helping each other ... and
nobody would get any good out of that." In the final paragraphs of his speech,
Green informed the employees that during the next few days and nights he and
some of the other management people would be visiting them in their homes to
talk with them and their wives about the dangers caused by unions and "how they
have run people out of business, and "caused good folks like you to lose their jobs."
After further denouncing the trickery of unions, he warned again: "Don't get
mixed up in trouble which can cause you and your families to suffer for the rest of
your lives." Then, in what was virtually his penultimate paragraph Green concluded
as follows:
You will see a lot of me in the plant and you can talk to me at anytime. If
you had rather not talk to me or our other supervisors here in the plant, we are
posting on the bulletin boards our home telephone numbers, so that you can
call us when no one is around ... or you can talk to us when we come around
to your home in the next few days.
The few employees who testified from memory concerning what Green had said in
his speech to the groups of employees left no doubt that they had absorbed the
message that he meant to convey. Alexander R. Sanchez summed it all up by
testifying that Green had said that the Borden Company "didn't want the union there,"
and that there was only "a handful of the union party." Miguel Gullermo Flores
testified that Green had said that he had been there only a couple of weeks but
already he had heard rumors that a union was trying to get into the plant; that they
did not want a union and only a handful had signed union authorization cards:
and that "if people signed union cards they would suffer consequences and families
also." Alejandro Vasquez, one of the two employees who was chiefly responsible
for the union activities that led to Green's speech, testified that Green said that a
union was invading "our place of work but only a handful has signed" and "half of
them didn't know what they had signed. Those who messed around with the union
would endanger their jobs and the welfare of their families." Vasquez also testified
that Green had declared that he would appreciate information about the Union,
that a roster of department heads would be posted on the bulletin boards the next
day and that these heads would receive information and keep it confidential.
The roster of department heads with their telephone numbers was duly posted on
the bulletin boards as Green had announced in his speech. But, apparently, H. C.
Palmer, Green's second in command, was not aware or had forgotten that the reason
for posting the roster was explained in Green's speech, and, when he was cross-
examined about the posting of the roster, he actually denied that it had anything to
do with obtaining from the employees confidential information about the activities
of the Union! He testified that the roster was only revised because of the possibility
of weekend trouble at the plant, and in order to show the names of the management
people who would be calling at the home of the employees. This was only one of
the numerous absurdities which were indulged in by the Respondent's witnesses who
were in the managerial hierarchy, and which completely undermined their credibility.
6. The home visits after the February 16 meetings
The home visits announced by Green in his speech took place between February 16
and March 2. But before the visits were made Green had another meeting with
his supervisory staff in order to instruct them how to conduct themselves during the
visits. All the department heads were present, as well as other supervisors. Every
supervisor who attended the meeting-they numbered between 15 and 20-was given
a written outline of topics that he could discuss with employees while visiting their
home. This outline,7 which had been prepared by counsel for the Borden Company,
was as follows:
INFORMATION FOR USE IN "HOME VISITS"
1) Put them at ease ... general conversation.
2) As you know-Union has contacted some of our people.
7It is in evidence as General Counsel 's Exhibit 4.
221-374-66-vol. 157-71
l
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3) Union would be-Bad for Company-Bad for you.
4) If Union got in-Company would not have to agree to Union's demand.
5) If Company said "No" to Union-only thing Union, could do is STRIKE.
6) Strikes are bad . . . Longshoreman Strike-33 days.
7) Remember this about STRIKES
a) No pay
b) No Unemployment Compensation
c) Could lose your job. (If Company hires someone in your place-
your job is lost)
d) Who will pay rent, groceries, car payments, etc.
8) Best way to avoid Union trouble is to never give it a chance to start-
Say NO to Union NOW.
9) Union interested in you for one reason
a) They want your money
b) They can get it by Dues, Fees, Fines & Assessments
c) Union wpn't give anything to you ... they TAKE
10), You will NEVER have to join the Union or pay Union dues to work at
Borden's.
11) You have more than other Dairy Companies now.
a) Better pay
b) Five paid holidays-New Year's; July Fourth; Labor Day; Thanks-
giving; Christmas
c) Vacations-1 Wk./1 Yr.; 1 Wk. 2 Days/2 Yrs.; 2 Wks./3 Yrs.
d) Hospitalization-Hospital, Surgical & major medical for you and
your dependents. Company pays 50%
e) Life Insurance-Insured for 11/2 times annual earnings
f) Accident & Sickness Insurance-Death & Dismenlberment-26 Wks.
Paid 2/3 of earnings. Company pays 50%
g) Retirement Plan-Company pays all for people with annual earnings
under $4800. Employee will get $2.50 per month for each year' s service.
h) Jury Duty-Get regular pay from Company plus whatever Jury Duty
pays
i) Stock Plan-Employee can purchase Borden stock at 85% of market
value
12) We treat our people right at Borden's-We want to be fair.
13) Open Door Policy-Feel free to talk to me at any time.
(Repeat: Best way to avoid Union trouble is to say NO to the Union NOW)
As the San Antonio plant had approximately 200 production and maintenance
employees, the program of home visits presented quite an undertaking. Exactly
how many of the supervisory personnel had to be pressed into service is not estab-
lished but the record does affirmatively show that home visits were made by Lon
Green, H. C. Palmer, J. E. McCarty, Peyton W. Tucker, Cliff Wetz, O. C. Deoppen-
schmidt, Tony Rodriguez, Richard Morales, and Max Dawson.8 In addition the
record shows that a field man by the name of John L. Jenkins, whose duty was to
work with the farmers who supplied the Borden Company with milk, was also
enlisted as a visitant.
The record is also very fragmentary with respect to what was said by the visitants
to the employees whose homes they visited, since only four of the employees testified
about the home visits, and only three of them supplied any significant detail. These
three employees were Alexander (Alec) R. Sanchez, Herple L. Ellis 111, and Alejan-
dro Vasquez. Their testimony indicates that each home visit was made by a team
of two supervisors, except in one instance.
Sanchez was visited during the evening of February 16 by Palmer, who was
accompanied by Wetz. Although Sanchez had been told by his supervisor, Vaughn,
about the impending visit before he quit work that day, he was not home when the
visitors arrived Apparently, he worked at a gasoline filling station in the,evenings,
and this is where he was that evening when Palmer and Wetz arrived at his home.
However, they had Sanchez' wife summon her husband from the filling station.
When he arrived, and found his visitors in his living room, Palmer told him that
they had come to talk about the Union, and Sanchez immediately told Palmer that
he did not know anything about the Union, and wanted no part of it. Sanchez then
8 The last-named is the only one whose duties have not already been described . Dawson
was the head of the fleet department, I e, the garage.
THE BORDEN COMPANY 1109
invited the visitors to the kitchen, where they had coffee. Upon returning to the living
room, the conversation about the Union was resumed or continued, and the visitors
asked Sanchez whether he knew anybody who was involved in the Union, and to
let them know if he did. The visitors also told Sanchez that if the Union got into
the plant they "wouldn't be looking at each other like a brother, or else we would
be looking like a dog or cat; or fighting each other." 'Before the visitors left, they
told Sanchez that if there was any way in which they could help him, to let them
know, and they would be glad to help him. Sanchez could not remember, of course,
everything that Palmer and Wetz said during their visit to his home but he did testify
that he remembered "the most important thing that we talked." In all the visit lasted
15 to 20 minutes , and Sanchez' wife was present during the visit.
Vaughn also told Ellis on February 16 that he would be receiving a visit that
evening but he was at home when Tony Rodriguez and Jenkins arrived about 7:30
p.m. The visitors asked Ellis whether he knew what they were there for, and he
replied that he guessed it was about.the Union. The visitors then proceeded to tell
Ellis "all the bad points about the union," and that the Union would not help him
.,any kind of way," since it was the Company that provided him with his benefits.
Jenkins asked Ellis, in the course of the conversation, whether anyone had
approached him, and, when Ellis replied negatively , Jenkins suggested that if any-
one did come, to be sure not to sign anything and to let one of the supervisors know.
There then seems to have ensued a considerable discussion of a strike at Friedrich's,
which, apparently, took so much time that Ellis thought that an hour elapsed before
the visitors had left. As in the case of Sanchez, Ellis' wife was present during the
visit.
Significantly, Green himself made the visit to the home of Vasquez but it did not
take place until about a week after the February 16 meeting. Green set forth one
evening, accompanied , apparently , by Bonnemaison , who was the immediate super-
visor of Vasquez, but they never arrived at their true destination because they had
a wrong address . Having been informed of the impending visit by Bonnemaison,
Vasquez was expecting them that evening but they never showed up. The following
evening Green did arrive, however, at Vasquez' home but on this occasion he was
accompanied by Deoppenschmidt rather than by Bonnemaison. The visitors
requested that Vasquez' wife be present during the interview, and Vasquez called to
her to come in from the kitchen, which she did. Vasquez credibly testified about the
interview as follows:
Q. What did Mr. Green say to you?
A. He said, he asked me about how was I doing, everything all right. After
that he said, "Well, Alec, the purpose of this visit is to find out about the union,
I mean going out there, activities of the union in the plant."
I tried to tell him that I, I was going to tell him something. He said, "Well,
first of all I like to know how you feel about the union." And I told him that I
have heard over the radio that benefits the union could give and everything.
I told him what , like I told Bonnemaison , that the only thing we could fight
our poverty here in San Antonio was through a union, I mean.
Mr. STOUT: I am sorry. I couldn't hear that. The only thing-
The WITNESS: The only thing we could fight poverty here in San Antonio
was through the union.
Q. [By Mr. KING.] Was the word poverty?
A. Poverty.
Q. Go ahead.
A. He said something about that I had misun-misled myself, understood,
I mean I been misled, what they were saying out there on the radio.
And I told him, I mean on the difference between his salary and mine he
was in no position to tell me what was right and what was wrong.
Q. What did he say to that?
A. And he said, Deoppenschmidt said to go about be a leader and don't be
led and trying to help the company, the company been good to everybody.
Then Mr. Green started telling me about he has managed all these years to
become a general manager through the company without the use of anything
like that . I asked him if there was a chance of me becoming a general manager.
He said, "It is a lot of hard work, a lot of everything else."
Q. About how long was Mr. Deoppenschmidt and Mr. Green at your house?
A. From eight to ten minutes.
The record is totally blank , so far as the visits to the other employees are con-
cerned. Yet it is shown at least that Palmer and Wetz made about 15 visits to
homes of employees; that Tony Rodriquez made about a dozen such visits, in the
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company of Green, Tucker, or Jenkins; and that Green and Deoppenschmidt made
3 or 4 home visits. It might be supposed, in view of all this visitation, that those
members of the managerial hierarchy who testified about the home visits would pro-
vide accounts of their experiences containing at least as much detail as the accounts
of the employees whom they visited., But, alas, their testimony was as barren of
detail as a tree is of leaves in winter. They could remember virtually nothing con-
cerning what was said during the instructional meeting that preceded the home visits,
or during the home visits themselves. The blankness of their memories seems to
have been in inverse proportion to their status in the managerial hierarchy. Green
and Palmer admitted at least that they brought up the subject of the Union, and
attempted to dissuade or discourage the employees whom they visited from support-
ing the Union. Palmer admitted specifically that he covered most of the points in
the outline , which included as one of its main topics the thesis that the Union would
be "bad for Company-bad for you." But the witnesses lower down in the man-
agerial hierarchy shied away from admitting that they had an antiunion purpose.
Thus, Tony Rodriguez summed up his visit to Ellis by testifying that "we discussed
a little bit on strikes , what the strikes could do to a company, that was all." But the
retail route supervisor who involved himself in the greatest absurdities was perhaps
Cliff Wetz, who testified to begin with that when he first heard about the Union it
was a shock to him. He even denied that Green had said anything about the Union
in the instructional meeting that preceded the home visits ! Thus, he testified:
Q. Isn't it a fact he (Green) told you the purpose of making these visits was
because the union was trying to get in , isn't that right-didn't he tell you that
was the purpose of going to see people?
A. No, sir, he didn't.
Q. He didn't say anything about that at all?
A. No, sir.
Even when Wetz was faced with the outline of the topics to be covered during the
home visits he would not admit that the Borden Company did not want its employ-
ees to be represented by a union! As far as he was concerned, the only purpose of
making the home visits was to tell the employees about the company benefits enjoyed
by them. 0. C. Deoppenschmidt also attempted to maintain the same position. After
such testimony as this, it is hardly possible to credit the testimony of the members
of the Borden supervisory staff that they said nothing improper to any of the
employees to whom they paid home visits, such as inquiring from them about the
union activities of other employees, or asking them to report on their activities to
their supervisors. Tony Rodriguez achieved perhaps the acme of absurdity when he
testified that he could not remember specifically what he told the dozen or so employ-
ees whom he visited, and then absolutely denied that he told them to report any
union activities to their supervisors. Why these supervisors should ever have bothered
to enter such denials seems extremely puzzling, for Green in his speech of February 16
had already invited all employees to report to their supervisors on the union activities
of their fellow employees.
7. The meeting at the Hawthorne School on March 2
Having completed the series of home visits, Green continued his antiunion activ-
ities by arranging another meeting with all the employees at the Hawthorne School,
a public school across the street from the Borden plant. Under date of February 26,
Green addressed an identical letter to all Borden Company employees, the letter
reading as follows:
We would like you, your wife and children to be our guests Tuesday evening,
March 2 promptly at 7.00 p.m. at an important meeting to be held in the
Hawthorne School across the street from our Plant. A barbeque (sic) dinner
will be served with all the trimmings while you enjoy some lively entertainment.
Will you please turn in the number attending from your immediate family to
your department head so we can know how many to prepare for.
This will be a brief meeting starting about 7:00 p.m., have our dinner, business
session and close about 8:45 p.m.
Sincerely,
(S) Lon Green
LON GREEN,
General Manager.
P.S. Be sure and get your door prize ticket at the door. Thirteen lucky people
are going to win a turkey.
THE BORDEN COMPANY 1111
An official program was also prepared for the meeting at the Hawthorne School .9
This program shows that "the lively entertainment" referred to in the February 26
letter was to be the presentation of a film to be preceded and followed by comments
from Green , and that in addition a talk by him was scheduled , although it had not
been mentioned in the letter . The program also shows that the "business" part of
the meeting to which reference is made in the letter was to be the presentation of a
new insurance plan by "Buddy" Loessberg , the Borden plant office manager. The.
program listed indeed nine items as follows:
1. Dinner
2. Invocation ------------------------------ Wade O'Neal
3. Talk ----------------------------------- Lon Green , Manager
4. Drawing for turkeys ---------------------- D. L. Brown
5. New Insurance Plan ---------------------- Buddy Loessberg
6. Comments on Film ----------------------- Lon Green
7. Presentation of Film
8. Final Comments on Film ------------------ Lon Green
9. Adjourn
All but about 20 of the 200 or so production and maintenance employees of the
Borden plant attended the Hawthorne School meeting. But, since they were invited
to come with their families, and did so, there were actually about 470 people at the
Hawthorne School affair. The program planned for the affair was fully carried out.
After dinner had been served in the school cafeteria , the employees were asked to
go to the school auditorium . As they were leaving the cafeteria , they were banded
envelopes containing the new insurance plan.
The talk made by Green in the Hawthorne School auditorium was considerably
shorter than the one he had made in the group meetings in the conference room of
the plant on February 16. The talk in the school auditorium ran to only about 700
words, and its main theme was also different from that of the earlier talk. On the
later occasion Green stressed primarily the readiness of the Company to improve
working conditions , and the benefits already enjoyed by the employees . Thus, after
welcoming his audience to what he called "a Borden family reunion," and expressing
his appreciation to them for "the warm reception " that he and the other members of
the supervisory staff had received during the visits to their homes, he continued
as follows:
I want you to know of the consistent policy which I have always followed and
which I will always follow here in doing my best at all times to give every pos-
sible advantage to employees working with me. With this in mind, I have
been asking you to let me know of any conditions which you think are not
right. Many of you have come forward in the right spirit and have told me
of things which need correcting . Please know : I have already begun to investi-
gate these matters. And to the extent the changes you have asked for can be
made.... They will indeed be made. I cannot promise to do things which are
not practical and which we may not be able to afford . In order to clear our
thinking , between us , it is appropriate to say at this point that no union or any
other force can compel us to do things which may cause harm to the operation
of this business.
Having, thus , promised to correct any working conditions that needed correction,
and that would not be bad for the operation of the business in the long run, Green
mentioned not only the benefits already enjoyed by the employees but also a new
benefit about to be conferred upon them . Thus, he concluded his speech in the
following paragraphs:
Of course , I don 't think we need apologize for having provided you with the
jobs which you have here . Our rate of pay compares favorably with our com-
petitors, both union and non -union . The Borden Company has established
benefits in the way of hospitalization, life and accident insurance , and retirement
which also compare favorably with other companies . And tonight we are
announcing something new and beneficial for you and your families . Perhaps
you have not taken stock of these things, or perhaps you may need more informa-
tion about them . We will be glad to give you this information at any time. But
in the meantime , and especially now.... Don't sell your company short....
Don't let anyone knock your company with criticism which is unjustified. Don't
fall for false promises from outsiders who know nothing about this business!
9 The program is in evidence as Respondent 's Exhibit 9.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By working with us, we will continue to move forward to your good advan-
tage . I hope that more and more of you will come to us with your questions ...
and with your suggestions. I am very much encouraged by the large number
who have done this already., We have been provided with some very valuable
information.
We know that the union people are trying desperately to trick you into signing
their cards They have been exposed for what they are ... and the vast majority
of our employees have turned them down cold. The small handful who have
signed up include a number of men who have indicated to us that they did not
know what they were signing.
So let's get all that behind us and start pulling together. I am sure you will
realize before long the advantage of this.
Now for the good news. We have asked Buddy Loessberg to present this
to you. -
The "good news" to which Green was referring was the new insurance program,
which Buddy Loessberg now rose to explain.
The next item in the program was the showing of a movie film entitled "And
Women Must Weep" which was introduced to the audience by Green himself in the
following terms:
The other day I happen (sic) to hear about a movie film dealing with a union
strike up in Indiana. I got hold of the film and saw it. It occurred to me, since
many of your have never had any experience with union troubles, that you
might want to see the kind of things that could happen if our men got involved
in a union here. So I have arranged for you here tonight to see this movie film
so that you may see for yourself something that actually happened in a union
situation. [Emphasis supplied ]
The movie entitled "And Women Must Weep," purports to tell what actually hap-
pened many years before the meeting in the Hawthorne School in the course of a
strike at the plant of the Potter-Brumfield Company in Princeton, Indiana, and which
was supposed to have been described by a minister's wife in a series of letters to her
mother, in one of which she told of the shooting of an infant child. The movie, which
has been considered by the Board in several previous cases 10 has been described
in the first of these cases as follows;
This movie, based upon the above letters, was ostensibly a true account of the
Potter-Brumfield strike. It was, however, a dramatized production rather than
a documentary film. The staging, acting, and direction were performed by
persons skilled in this medium. The competence of the cast and the excellence
of the production resulted in a moving story of callous union leaders, a helpless
employer, unfortunate victims, including, as a climax, the above-mentioned
incident involving the infant, violence, fear, and hatred in an unnecessary strike
for no justifiable reason . According to the employer, this incident presented
in capsule form a nationwide condition that is eating out the heart of American
liberty."
Board records indicate that a strike did, in fact, occur at the Potter-Brumfield
plant in 1956. In connection with this strike, the International Association of
Machinists, which represented the employees, filed unfair labor practice charges
against the Company in Case No. 35-CA-728. These charges were dismissed
in part and settled in part. Apparently, no charges were filed by the Company
against the Union. We also take official notice of a court injunction against
picket-line violence by the Union and interference with legitimate picketing
by the Company. Both Union and Company were subsequently adjudged in
contempt of court for violation of this injunction. Except for the material
circulated and shown by the Employer herein as part of its antiunion campaign,
there is no evidence that the excessive acts of reprehensible and unlawful con-
duct attributed to the union in Princeton, Indiana-and by association to all
unions, including the Petitioner at the Employer's Chicago, Illinois, plant-
occurred as portrayed by the actors in the picture "And Women Must Weep."
Having told the employees before they were shown the film that they were about
to see actual fact, Green told them after the film had been shown that they had seen
10 See Plochman and Harrison-Cherry Lane Foods, Inc., 140 NLRB 130, 131-132; Carl
T. Mason Co ., Inc., 142 NLRB 480, 483; Industrial Steel Products Company, Inc., 143
NLRB 336, 347.
THE BORDEN COMPANY . 1113
actual fact. Upon this note, he bade them a pleasant goodnight. His comments on
the film were as follows:
Now ... what you have just seen in this movie film is actual fact.... It
really happened. As a matter of fact-with a few variations, the same type of
thing has happened in hundreds of strikes. Employees like you have lost their
jobs. Their families have been subjected to years of suffering because the union
persuaded the men to let the union handle their affairs. You can imagine how
little you would be able to do if this union came in with its strong arm methods
and told you that you couldn't work ... and that you had to go out and beat
up people to keep them from going to work. Even though you would not want
to do it, you would be caught in the middle and afraid not to follow the union's
orders.
I have gone to the trouble of telling you and your family of these things
because you have not been mixed up in one of these things before. And I
want you to know what can happen before you do get mixed up in one now.
We have a happy plant ... and what problems we have, we can straighten
out among ourselves without bringing in this kind of violence and this kind of
trouble to our good folks here. So once again I am asking you to think care-
fully before you get involved in something that may bring you trouble for the
rest of your life.
Thank you again for coming.... And a very pleasant goodnight!
8. The climax of the antiunion campaign; the discharge of Vasquez
Following the group meetings of February 16, the chief union adherents in the
shipping department played a sort of cat-and-mouse game with Bonnemaison, the
superintendent of the department. The group meeting attended by Vasquez was
held about 11:30 a.m. on February 16, and when he went into the milk vault about
2 p.m., he found Bonnemaison there talking to Orlando Rodriguez. Bonnemaison
genially remarked to Vasquez that if he had any questions about the meeting that
morning, or about the Union, he would be glad to answer them. Vasquez thereupon
asked Bonnemaison whether he was "one of the union wheels out there," and to this
question Bonnemaison replied that Vasquez knew perfectly well that he and the
Company did not want a union, and warned Vasquez that if he did not stay away
from the union activities he might lose his job. At this point in the conversation,
Vasquez pretended that he had heard nothing about the Union until that day. This
caused Bonnemaison to laugh and to remark that he had known who had signed
union cards for 10 or 13 days. The conversation between Bonnemaison and Vasquez
was in the presence of Rodriguez, who fully corroborated Vasquez' testimony con-
cerning the substance of the conversation.
Juan Alfaro, another one of the union card signers, who was a wholesale checker
in the shipping department, also had an encounter with Bonnemaison right after the
February 16 meeting. The superintendent came to the dock, where Alfaro was
checking a wholesale truck, and remarked to the latter that he had known about the
union business for about 10 days. Alfaro merely observed: "Is that right?"
About a week or so after the February 16 meeting Vasquez again ran into
Bonnemaison while he was waiting for a truck to pull over to the milk vault. Bonne-
maison complained to Vasquez that the Union was trying to organize the whole city,
including Kelly Field.11 Vasquez' comment on this was that this was a good thing;
that San Antonio stood in need of union organization. By way of illustration, Vas-
quez brought up the benefits which the employees at Friedrich's were obtaining
through the Union. Bonnemaison then asked Vasquez how it was that if he liked
those benefits at Friedrich's he did not go to work there. Apparently, Bonnemaison's
wife , who worked for the telephone company, had been until recently a union
member, and Vasquez also proceeded to ask Bonnemaison why his wife had left the
union after 35 years. Bonnemaison explained that she had left the union because
she had become a supervisor.
There was also a union adherent in the shipping department by the name of Elias R.
Adame who had a series of conversations about the union situation with Roger Flores,
Bonnemaison 's right-hand man. Adame and Flores seem to have been boon com-
panions. They rode home together from work, and on the way home it seems to
have been their habit to stop off fora glass of beer at Baylor's Beer Garden, which
was located on Josephine Street in San Antonio only 3 or 4 blocks from the Borden
plant . Several days after the group meetings of February 16 Adame asked Flores
over their beers whether the latter had heard anything about the Union. Flores
u This was a colloquial reference to Kelly Air Force Base.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that he had attended a supervisors' meeting at which Green had told them
that only a handful of the employees were involved in the current union activity.
Two or three days later Adame and Flores had another conversation under the same
circumstances in which Flores confided to Adame that "a driver named Joe Claik
had walked into the order department that morning and had stated that Alex Vasquez
had called him up the night before and asked him if he would attend a union meeting
with him." Two or three days after this conversation Adame and Flores had a third
conversation in which Adame again pumped Flores about the Union. On this occa-
sion, Flores confided to Adame that "Alec was being watched, that he was making
too many mistakes out loud and he was too outspoken on union activities."
At about this same time, Alexander R. (Alec) Sanchez, another of the union card
signers, while he was working on the dock, had a conversation about the Union with
Bonnemaison himself, and this conversation was even more ominous, so far as
Vasquez was concerned. At one point in the conversation Sanchez "wondered who
started all this." Bonnemaison remarked: "I have got an idea," and while he would
not tell Sanchez who was responsible for the union activity, he did say that not more
than about two, three, or four employees were involved in the union activity "but
he was going to look for a chance to get rid of them one by one."
Vasquez was discharged by the Respondent during the afternoon of March 19.
About 1 or 1:30 p.m. Bonnemaison recommended to Palmer that Vasquez be dis-
charged, and Palmer agreed, telling Bonnemaison to bring Vasquez to his office later
to pick up his check. About an hour later Bonnemaison took Vasquez to Green's
office, and told the latter that he could no longer condone his unsatisfactory work
and Green discharged Vasquez, telling him to see Palmer before he left so that he
would be paid off. Vasquez protested that he was doing his best for the Company,
and asked "Why fire me? I have got five kids." To this Bonnemaison replied:
"You should have thought of that before." Vasquez then went to Palmer's office,
and received a check covering his pay, vacation pay, and 2 weeks' separation pay.12
The discharge of Vasquez seems to have filled the small band of union adherents
with the fear that they would be the next victims. Indeed, on the day that Vasquez
was discharged, Adame had asked Roger Flores over their beer why Vasquez had
been fired, and, although Flores had grinned, he had remarked that Ray Gonzalez was
next. The union supporters determined, therefore, to declare a temporary mora-
torium on union activity and to wear union buttons while at work as a protective
measure. Indeed, the day after the discharge of Vasquez, which was a Saturday,
Ray Gonzalez, who, obviously, had the most to fear, came to work wearing two
union buttons. The first person that he encountered was Roger Flores, who gave
him a funny look, and told him: "You are going to get fired." As Gonzalez
approached the dock, he encountered Bonnemaison himself who remarked "Just as
I thought," and told Gonzalez: "Wait a minute. Don't go to work. Wait for me in
the order office and I will be right back." About 10 minutes later, Bonnemaison
came back, however, and told Gonzalez: "It is all right. You can go to work."
As Gonzalez took off, Bonnemaison added: "From now on it's strictly business."
It seems that later Gonzalez' union buttons were seen by Vaughn, who asked him:
"What is your percentage?" About 2 days later as Gonzalez was proceeding to the
laboratory to make a telephone call he was again noticed by Vaughn who asked him
bow many people he had signed up for the Union, which, he told him, moreover,
was no good.
B. Concluding findings
1. The independent violations of Section 8 (a) (1) of the Act
The record clearly establishes that the Respondent is an antiunion employer, and
that it committed numerous acts of interference, restraint, and coercion in the course
of its antiunion campaign. Indeed, even before the Union's organizing campaign
had been launched, it had sought to guard itself against the possibility of union
organization by inquiring into the union sympathies and attitudes of applicants for
employment. While the record shows that only a few applicants for employment were
so questioned, this is explainable in terms of the extreme stability of employment
that characterized the Respondent's operations.13 Moreover, in view of the fact
12 Counsel for the Respondent also attacks the credibility of Vasquez on the ground that
he denied that he received severance pay at the time of his discharge . In fact, the record
shows that Vasquez, who neither spoke or understood English too well, did not under-
stand the question put to him about separation pay. Thus, he exclaimed: "Separation
pay-I don't get what you mean by that."
u Thus Tucker testified that he had hired only two or three applicants for employment
in 1964, and only one in 1965.
0
THE BORDEN COMPANY 1115
that some of its highest management officials, such as Palmer and Tucker , have been
shown to have questioned applicants for employment about their union sympathies,
the inference is warranted that they actually authorized the polygraph operators
employed by Texas Industrial Surveys, Inc. to do likewise. The only factor that
militates against the acceptance of this inference is that an employer might be more
cautious in asking an outside organization to question applicant for employment
about their union sympathies than in entrusting such inquiries to his own supervisors.
But, since the evidence shows that the Respondent's officials had no hesitancy in
recording some of their unfair labor practices in writing , and in committing others
in public in the presence of numerous witnesses , there would seem to be no basis for
crediting them with any great degree of caution.
The evidence also shows that once the Respondent's management officials launched
their antiunion campaign the pressure on the employees was sustained and unremit-
ting. The group meetings were followed by the individual home visits, and these
visits by the grand affair at the Hawthorne School. The numerous unfair labor
practices involved in these activities were capped by the discharge of the too out-
spoken Vasquez.
It is worthy of note that the Respondent's antiunion campaign was conducted not
only by enlisting the assistance and support of its own management officials and
supervisory staff but also by seeking to make allies of its rank-and-file employees.
Green sought to achieve this objective in two ways
The first way was to make the employees feel that even without their cooperation
he would know how many of them were supporting the Union. He accomplished
this by telling them both in his February 16 speeches and in his March 2 speech at
the Hawthorne School that only a handful of the employees had signed union cards.
-He thus created among the employees an impression that their activities were already
under surveillance, and that they might as well reveal all they knew about the union
activities of their fellow employees. By declaring, moreover that only a handful
had joined the Union, he emphasized its weak position and its inability to protect its
adherents. It has been said that there is safety in numbers but by calling attention
-to the small number of union adherents Green deprived them even of this measure
of safety.
The other way of obtaining the cooperation of the rank-and-file employees was
the more obvious one of soliciting them directly to report any employees who
solicited them to sign union authorization cards. Green did this in his February 16
speeches by telling the employees: "If anyone pushing the union approaches you and
tries to get you mixed up with them, we would like for you to tell us about it." It
was to facilitate this reporting that the names and telephone numbers of the Respond-
ent's supervisors were posted on the plant bulletin board. The supervisors who
made the visits to the homes of the employees also told them to report to their
supervisors if they were approached by anyone and asked to sign union authorization
cards.
Indeed, this was one of the principal purposes of the making of the home visits,
the others being to interrogate the employees concerning their union activities, and
to discourage them from supporting the Union or engaging in union activities.
Green's statements, both in his February 16 speeches and in his March 2 speech at
the Hawthorne School, that the purpose of the home visits was to get better acquainted
with the employees is not to be taken seriously. Neither he nor his predecessor as
plant manager had ever deemed it necessary to make visits to the homes of the
employees before the threat of union organization materialized.
The home visits were, certainly, violations of Section 8(a) (1) of the Act under
-the circumstances of the present case.14 The Board has held that "regardless of
whether remarks made were coercive in character, the technique by an employer
visiting employees at their homes to urge them to reject a union as their bargaining
representative is grounds for setting aside an election." 15 While the Board seems
14 Counsel for the Respondent seems to contend that the legality of the home visits them-
selves were not put in issue, since no more is alleged in the complaint than that certain
unlawful questions were asked or statements made to particular employees The relevant
allegations of the complaint are paragraphs 8(k), (1), and (m), and in paragraph 8(m)
complaint is made not only concerning what was said during the home visits but also con-
cerning the home visit itself. This allegation would seem to be sufficient to satisfy
even the most technical requirements of pleading. In any event, the issue of the legality
of the home visits was fully litigated at the hearing without any objection being inter-
posed by counsel for the Respondent.
15F. N. Calderwood, Inc., 124 NLRB 1211, 1212. To the same effect are Mrs. Baird's
Bakeries, Inc., 114 NLRB 444, 446; Peoria Plastic Compan y, 117 NLRB 545, 547; and
Plant City Welding and Tank Company , 119 NLRB 131, 133
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never to have declared precisely that home visits by an employer's representatives
are unlawful per se,16 the logic of the decisions in the representation cases would
seem to be that they are certainly unlawful when made for the purpose of dissuading
employees from supporting a union ,17 for the Board has recognized the inherently
coercive character of any systematic visits by employer's representatives, whether
made in the factory or the home. It has been said that a man 's home is his castle.
But the same has never been said of an employer's factory.
Green used the technique of the carrot and the stick in all his endeavors to enlist
the cooperation of the employees in his fight against the Union. The carrot con-
sisted not only of promises of benefit but also of actual benefits. Admittedly, improve-
ments in the insurance program of the employees were announced at the March 2
meeting at the Hawthorne School, and this announcement was made with consider-
able fanfare. Quite apart from the 13 turkeys that were given away to 13 of the
luckier employees, the improved insurance program constituted, obviously, the con-
ferral of a benefit. In fact, Green's speech at the Hawthorne School was positively
redolent of promises of benefit, for he not only called attention to the existing bene-
fits enjoyed by the Borden employees but also promised to investigate and correct
any working conditions that could be corrected. This was no less a promise of
benefits, although the promise was general and unspecific in its terms. It was coupled,
moreover, with the actual conferral of at least one tangible benefit, i.e. the improve-
ments in the insurance program, and the general declaration that benefits would
depend solely upon the work of the employees with the Company. In this context
the promise to correct existing grievances and to take care of complaints was not a
mere expression of general benevolence. That it was made only after an attempt to
organize the employees had been made indicates that its true purpose was to fore-
stall union organization.
In all his speeches to the employees Green was very careful to avoid the making
of overt threats. But subtlety is no defense to an employer bent on nullifying the
protections of the Act, and threats are no less menacing because they were veiled.
While some of the elements in Green's speeches were purely propagandistic-cer-
tainly if considered in isolation-there were also elements of intimidation and coer-
cion running counter to the prescriptions of the Act. Thus, when Green told the
employees that "We do not want you to sign a union card," and coupled this declara-
tion with another to the effect that such a step, which he called "serious," could lead
to the loss of their jobs and the impoverishment of their families, he was not engaged
in argument , which is protected free speech, or in making innocuous remarks. In the
total context of his utterances, his words could only be construed by the employees
who were listening to him as tantamount to the declaration that they would be
endangering the security of their jobs by signing union cards. Such a declaration is,
of course , coercive. Also, by telling the employees that wages and benefits would
depend solely on the Company, and that the Union would never be able to procure
any benefits for them, Green was in effect telling the employees that if they got a
union to represent them it would avail them nothing, and that the Respondent was
opposed to the principle of collective bargaining, which is one of the guarantees of
the Act. Green could not call the Union "the enemy," and pretend to good faith
in collective bargaining 18
Green further violated Section 8(a)(1) of the Act by showing to the employees
who were dined at the Hawthorne School the night of March 2 the film entitled
"And Women Must Weep." It is true that the cases already mentioned , in which
the showing of this film to employees was condemned, involved the validity of
elections , and that the Board may set aside elections because of tactics which it con-
siders inherently unfair, even though such tactics do not in themselves constitute
technically unfair labor practices.19 The question whether the showing of the film
1s See The Hinde & Douche Paper Company, 78 NLRB 488.
17 See Imperial Eastman Corporation, 139 NLRB 1255, enfd. 322 F. 2d 679 (C.A. 7).
18 See The Trane Company (Clarksville Manufacturing Division), 137 NLRB 1506, 1510;
Del-Ten Optical Company, Inc., 137 NLRB 1782, 1785. Texas Industries, Inc, at al.,
139 NLRB 365, 368; The Little Rock Downtowner, Inc., 143 NLRB 887, 890; Ideal Baking
Company of Tennessee, Inc., 143 NLRB 546, 547-553; General Industries Electronics
Company, 146 NLRB 1139, 1140-1141; Federal Envelope Company, etc., 147 NLRB 1030,
1040; Herman Wilson Lumber Company, 149 NLRB 673; Sparton Manufacturing Com-
pany, 150 NLRB 948.
>s It has been held that the Board is not precluded from finding in a representation case
that an expression of views not amounting to an unfair labor practice has interfered with
the freedom of choice of employees in an election. See General Shoe Corporation, 77
NLRB 124; Metropolitan Life Insurance Company, 90 NLRB 935 , 938-939; Foreman &
Clark, Inc., 105 NLRB 333, enfd. 215 F. 2d 396 (C.A. 9).
THE BORDEN COMPANY 111.7
constituted an unfair labor practice is, therefore, open. I must conclude, however,
that it did constitute an unfair labor practice in the circumstances of the present case.
As the Union was still attempting to organize the employees, the showing of the film
tended to interfere with its efforts. Green's purpose in having the film shown to the
employees was to demonstrate to them that union organization would be futile and
that strikes and violence, with consequent loss of employment were'the inevitable
consequences of union organization. This was the false message of the film, and by
assuring the employees that the film represented actual fact, he was adopting the
message of the film as his own. Moreover, by also telling the employees that they
would be unable to help themselves once they joined the Union, he only stressed the
inevitability of the connection between strikes and union organization. The attempt
to establish this connection was coercive, especially in the light" of the pronounce-
ments in Green's previous speeches.
Green was the principal architect of the Respondent's unfair labor practices. But
his wishes and tactics were also reflected in actions taken by most of his subordinates.
Bonnemaison only echoed Green when he told Alfaro that he had known about the
Union for 10 days, and,told Sanchez that only three or four employees were involved
with the Union. This is, obviously, Green's "handful" theme, and it was also literally
repeated by Flores to Adame. Bonnemaison and Flores also made explicit the
threats of discharge which were implicit in Green's public utterances. This occurred
when Bonnemaison spoke to Vasquez and Sanchez after the February 16 meetings,
and when Flores hinted first to Gonzalez himself and then to Adame that Gonzalez
might be the next one to be discharged. Actually, Green, Palmer, and Bonnemaison
finally decided to make an example of Vasquez rather than of Gonzalez.
2. The violation of Section 8(a) (3) of the Act by the discharge of Vasquez
In the Borden shipping department there were wholesale loaders and retail loaders,
who serviced the wholesale and the retail route salesmen, respectively. There were
two wholesale loaders in the shipping department, one being Alejandro Vasquez, and
the other being Juan Vasquez.20 Both of them worked together in loading the
wholesale route salesmen. The loaders were supplied with load sheets, constituting
particular orders, by the drivers, and the jobs of the loaders were the simple ones
of taking the merchandise from the vault and putting it on a conveyor which took
it to the dock where it was loaded on to the truck. When the loading was completed,
both the loader and the driver signed the load sheet, and both were responsible for
the correct loading of the truck. In the course of a single day the two wholesale
loaders would load 26 trucks.
According to the Respondent's witnesses, Vasquez was discharged because he was
making too many mistakes in loading. According to Green and Palmer, the unsatis-
factory nature of Vasquez' work was first brought to their attention by Bonnemaison,
about 3 weeks before his actual discharge. However, this occurred at a meeting
arranged not to discuss the case of Vasquez but the operation of the shipping depart-
ment in general21 The Respondent had installed at a cost of some $300,000 an
improved conveyor system to facilitate loading and unloading 22 and it was in the
course of the discussion of the operation of the new system that the name of
Vasquez was, supposedly, brought up by Bonnemaison, who was in attendance at
the meeting. According to Palmer, Bonnemaison told him and Green that he was
having trouble with Vasquez, who "seemed quite disinterested in the job and didn't
have too good a job attitude," and they told Bonnemaison to see if he could not get
Vasquez straightened out. When this supposed attempt at rehabilitation failed,
Vasquez was discharged on March 19 under the circumstances already related.
Of the Respondent's supervisors who testified about the alleged mistakes of
Vasquez, Green supplied virtually no details. Palmer was equally vague about Vas-
quez' mistakes during his direct examination. But, pressed for details during his
cross-examination, Palmer testified that in the meeting that occurred 3 weeks prior
to Vasquez' discharge Bonnemaison had complained that Vasquez was making mis-
takes "in the amount of the material that went on the trucks" but that he could not
remember any specific instances of these mistakes. However, on the day of Vasquez'
discharge, Palmer testified further, Bonnemaison told him that Vasquez had loaded
an excess of six cartons of cheese on one truck. Since this is what decided Bonne-
2D References hereinafter to Vasquez alone should be understood as referring to Alejandro
Vasquez.
21 On his direct examination, Bonnemaison incorrectly testified that the only purpose of
the meeting was to discuss Vasquez but on cross-examination Bonnemaison retracted this
testimony.
22 The work on the conveyor system had been virtually completed by September 1, 1964.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,maison, supposedly , to recommend Vasquez' discharge, it must be regarded as the
'mistake that in the judgment of Bonnemaison and his superiors triggered this event.
It was Roger Flores, Bonnemaison 's right-hand man, who had reported the mis-
take involving the cartons of cheeses, to Bonnemaison , after Joe Clark, the driver
involved had, supposedly, complained to Flores about it, although the mistake had
'been caught in time, and the extra cartons of cheeses actually never went out. Joe
'Clark was the very same driver who had complained that Vasquez had asked him to
attend a union meeting. When Flores told Bonnemaison about the extra cheeses,
the latter did not indicate any intention of getting rid of Vasquez According to
Flores, all that Bonnemaison said on this occasion was- "Well, I am going to have
a talk with that boy," and Flores added. "That is all he told me."
Flores could- only recall one other specific mistake made by Vasquez, and this
occurred several days before his discharge. Flores testified that on this occasion the
route salesman; whose name was Bennie Burroughs, had complained that he had
ordered 24 quarts of cream but that Vasquez had given him 8 quarts too many.
However, this mistake, too, had been caught in time, and Burroughs was not even
delayed in getting out with his load. The only other route salesman, who, according
to Flores, complained to him about Vasquez shortly before the latter's discharge, was
Claude Cheeley but Cheeley did not complain that Vasquez made mistakes. He
complained merely that Vasquez loaded him in the wrong order. It seems that some
of the route salesmen preferred to load gallons first while others preferred to load
quarts or pints first.
According to Flores, the mistakes of Vasquez did not become frequent until a
period which, he first testified, started from 3 to 6 months before his discharge. In
his subsequent testimony, however, Flores pushed this period back to 9 months
before Vasquez' discharge. During this whole period, whether it be 3, 6, or 9
months, Flores could recall specifically only the three complaints to which he had
testified. He no longer had any recollection of the other alleged mistakes.
Unlike Flores, Bonnemaison himself dated Vasquez, backsliding only from Christ-
mas 1964, which would be less than 3 months before his discharge. He conceded
that Vasquez who had been hired on February 3, 1962, had been a very satisfactory
employee until then. According to Bonnemaison, in the 3 months' period between
Christmas of 1964 and the day of Vasquez' discharge, he received, however, some 78
complaints from some 8 of the route salesmen , whom he named as Alfred Wiley,
Robert T. Cuny, Charles Hilbig, Claude Cheeley, Jerry Strand, Charles Wyatt,
J. C. Caldwell, and Joe Clark, and after receiving their complaints, which were
repeatedly made , he spoke to Vasquez scores of times. But the only specific com-
plaint he could remember was the one about the loading of the cheeses on the day
of Vasquez' discharge; of the complaints of the route salesmen named by him he
could speak in only the most general terms; and, although he spoke to Vasquez about
his mistakes scores of times, supposedly, he never once warned Vasquez who, he
knew, had five children, that he would be fired if he continued to make such mistakes.
Bonnemaison contended, moreover, that of the 78 or so mistakes allegedly made by
Vasquez 30, 40, or 50 were serious mistakes' If Bonnemaison is to be believed, it
seems that the mistake with the cheeses was merely the last of a long series of
Vasquez' mistakes and that Vasquez aggravated this mistake by being inattentive
at a safety meeting that was held at the very morning of his discharge.
Of the nine route salesmen who were named by either Flores or Bonnemaison as
complaining about Vasquez it would have been of particular interest to have heard
Joe Clark, who had reported that Vasquez had invited him to a union meeting, and
then had furnished the immediate occasion for Vasquez' discharge. But the Respond-
ent called only three of the nine route salesmen to testify about Vasquez' alleged
mistakes, and these three were Alfred Wiley, Robert T. Cuny and J. C. Caldwell.
They failed, however, to produce any real justifications for their complaints. Wiley
complained that Vasquez would send the cases out 2 or 3 feet apart on the conveyor
when they should have been 10 feet apart but he was forced in the end to admit
that since he was outside the vault he could not really see who was loading his truck,
and for all that he knew, it could have been Juan Vasquez, the other wholesale loader,
who was loading his truck. Cuny complained that Vasquez would load his truck too
fast but actually it turned out that it was Cluny who was extremely slow in taking
the merchandise off the conveyor. Caldwell wholly discredited himself by the very
extravagance of his testimony. Like Wiley, he did not really know who was loading
his truck but he blamed all his irritations on Vasquez, the convenient scapegoat.
Caldwell claimed that Vasquez made 48 to 50 mistakes in the 3-month period prior
to his discharge but, if this were really so, Bonnemaison's figure of 78 would have
to be upped very considerably. It is apparent, moreover, that what Wiley, Cuny,
THE BORDEN COMPANY 1119
and Caldwell were complaining about were not mistakes made by Vasquez but the
speed , tempo, and sequence of the loading operations about which there could be
considerable differences of opinion.
It is apparent that the testimony given by the Respondent' s witnesses in their
floundering efforts to justify the discharge of Vasquez is inherently incredible. Indeed,
this testimony is as patently absurd as the testimony given by them in their attempts
to explain away their other unfair labor practices, although many of these were
established by unimpeachable documentary evidence. In the few days preceding
his discharge Vasquez made two inconsequential and harmless mistakes . It is appar-
ent that these were simply seized upon as pretexts for his discharge but, in fear that
these two harmless mistakes would not be sufficient, dozens of others were invented.
Yet even if Vasquez made more than two mistakes, it would be small cause for
wonder. Such mistakes were bound to occur in the loading of dozens of trucks with
milk products. The record shows affirmatively that mistakes in loading were not
infrequent occurrences, and that nobody was discharged for making such mistakes.
If, on the other hand, Vasquez really made the dozens of serious mistakes attributed
to him by Bonnemaison, and these mistakes extended over a period of several months.
it becomes impossible to understand why Bonnemaison did not have Vasquez dis-
charged long before he actually did so. Despite his claim that he frequently took
Vasquez to task for his alleged mistakes, Bonnemaison was forced to admit, more-
over, that he had never once warned Vasquez that he would be discharged if he
made any more "mistakes." Bonnemaison failed to issue such a warning, further-
more, although he admittedly knew that Vasquez was the support of a wife and
five children.
Actually, Vasquez' record clearly shows not only that he made no more mistakes:
than anybody else but also that he was an exceptionally valuable employee. When he
was hired on February 3, 1962, his starting rate of pay was $1.36 an hour. Between
the date of his hiring and the date of his discharge, which covers a period of approx-
imately 3 years, Vasquez received no less than four inerit increases as follows:
February 24, 1962 from $1.36 to $1.40 an hour
February 13, 1963 from $1.40 to $1.45 an hour
August 28, 1963 from $1.45 to $1.50 an hour
August 26, 1964 from $1.50 to $1.56 an hour
In addition, about a month before his discharge, Vasquez made a suggestion that
brought him a safety award (this consisted of a key chain with an Elsie cow). On
this occasion , Bonnemaison himself presented Vasquez with the safety award, patted
him on the back and told him that "he was doing a good job."
Apart from Vasquez' personal merits, there are indications in the record that are
wholly inconsistent with the inventions of the Respondent 's witnesses . Early in
1965 Bonnemaison received a letter from Green's predecessor as plant manager.
whose name was Torrance, congratulating him that his milk vault was in such good
shape. It was indeed first in that month in the southwestern division of Borden,
and second among all of the Borden plants. Bonnemaison assembled the employees
and read Torrance's letter to them. Asked to evaluate the significance of the letter,
Bonnemaison testified as follows:
Q. Didn't you receive a letter of commendation?
A. I received a letter from Mr. Torrance stating that my vaults was in good
shape.
Q. What does this mean , your vault was in good shape?
A. Well, it meant for one thing that everything was in order and my vault
showed it was not excessive.
Q. Your vault showed it was not excessive?
A. No.
Q. Then this means your department is running pretty good?
A. Seems to be.
Q. That your employees are working pretty smooth?
A. Up to a certain point.
Another indication of the improbability of the testimony of the Respondent's
witnesses is the effect which the installation of the new conveyor system would nor-
mally have had on the efficiency of the employees. The new conveyor system greatly
facilitated the loading of the trucks, and the discharge of their duties by the employ-
ees in the shipping department, as Palmer himself conceded when questioned about
this. It certainly seems strange that Vasquez, who had such a good record as an
employee, should have begun to perform so miserably as soon as his work was madeeasier for him.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the Respondent contends, apparently, that Vasquez' union activities,
which he describes as de minimis and as conducted away from the plant, were wholly
unknown to the Respondent's representatives. Indeed, counsel goes so far as to
declare that "there is not one scintilla of credible evidence that Respondent was
aware of Vasquez' purported union activities." But the evidence shows that the
Respondent's chief representative, who had declared the Union to be an enemy, had
treated even the most minimal union activities as deadly sins. As for the fact that
the union activities were, for the most part, conducted away from the plant, Green's
good friend seems to have had no difficulty in obtaining immediate knowledge of
them. In fact, the Respondent's knowledge of the extent of the union activities of
its employees was encyclopedic at all times, and when Green declared that he knew
that only a handful of the employees were supporting the Union, he also necessarily
confessed that he knew the identity of these employees. Moreover, if this confes-
sion be deemed insufficient, there is a plethora of other credible evidence, which is
not only circumstantial but direct, that Green, Palmer, and Bonnemaison not only
had knowledge of Vasquez' union activities and sympathies but decided to get rid of
him because of these activities. It must not be forgotten that Bonnemaison directly
warned Vasquez that he might be fired if he did not stay away from union activities,
and both Bonnemaison and Green were involved in discussions with Vasquez in
which the latter openly and most emphatically avowed the need for union organiza-
tion at the Borden plant.
Counsel for the Respondent also contends that the testimony of Adame should be
stricken from the record because counsel for the General Counsel refused to produce
an affidavit in his possession that had been signed by Adame. The fact is that coun-
sel for the General Counsel produced all the affidavits in his possession that related
to the present proceeding. The affidavit that he failed to produce was one given by
Adame in connection with other charges that were subsequently withdrawn 23 In
any event, the testimony given by Adame at the hearing, which appears to have been
offered primarily to establish that the Respondent had knowledge of Vasquez' union
activities, is simply cumulative. Even if Adame's testimony were to be wholly dis-
regarded, ample evidence would remain that the Respondent's representatives had
knowledge of Vasquez' union activities and sympathies and that they discharged him
because of them.
IV. THE REMEDY
In view of the broad scope of the Respondent's unfair labor practices, which
include the discharge of one of its employees, I shall recommend a broad form of
cease-and-desist order, restraining the Respondent from infringing upon any of the
rights guaranteed to employees by Section 7 of the Act.
To remedy the discharge of Alejandro Vasquez, I shall also recommend, by way
of affirmative relief, that the Respondent offer to him immediate and full reinstate-
ment to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed by him, discharging, if
necessary, any new employee hired subsequent to the date of his discharge in order
to replace him. I shall also recommend that the Respondent make Alejandro Vas-
quez whole for any loss of pay he may have suffered by reason of his discharge by
payment to him of a sum of money equal to the amount which he would normally
have earned as wages from the date on which he was discharged to the date of the
Respondent's offer of reinstatement, less his net earnings during the said period. The
amount of backpay is to be determined in accordance with the formula prescribed
in F. W. Woolworth Company, 90 NLRB 289, and interest is to be computed on the
amount so determined in accordance with Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. The Borden Company, the Respondent, is an employer engaged in commerce,
or in an industry affecting commerce, within the meaning of Section 2(6) and (7)
of the Act.
2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By questioning applicants for employment concerning their prior union activi-
ties, either directly through its own supervisors, or indirectly through Texas Indus-
trial Surveys, Inc.; by interrogating its employees coercively concerning their union
activities or sympathies; by warning its employees not to support the Union if they
wished to avoid serious consequences to themselves and their families; by making
threats of discharge or other reprisals; by promising and conferring benefits on its
23 These charges grew, apparently, out of Adame's own discharge.
THE BORDEN COMPANY 1121
employees in order to discourage them from supporting the Union; by announcing
to its employees that it was the sole source of benefits, and that, therefore, their
efforts at union organization would avail them nothing; by exhibiting to its employ-
ees the film, "And Women Must Weep," in order to convey to them the message
that union organization would be futile and that strikes and violence are the inevi-
table concomitants of union organization; by creating among its employees the
impression that their union activities were under surveillance and by inviting its
employees to report on the union activities of their fellow employees; by making
visits to the homes of its employees for the purpose of discouraging union organiza-
tion and to secure the cooperation of its employees in preventing union organization,
the Respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, and has thereby committed
unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of
the Act.
4. By discharging Alejandro Vasquez on March 19, 1965, because he had engaged
in union or other concerted activities, the Respondent has committed an unfair labor
practice affecting commerce within the meaning of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the entire record and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, The Borden Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Questioning applicants for employment concerning their prior union activi-
ties, either directly through its own supervisors, or indirectly through Texas Industrial
Surveys, Inc.
(b) Interrogating its employees coercively concerning their union activities or
sympathies; warning its employees not to support the Union if they wished to avoid
serious consequences to themselves and their families; making threats of discharge
or other reprisals; promising and conferring benefits upon its employees in order to
discourage them from supporting the Union, announcing to its employees that it is
the sole source of benefits, and that, therefore, their efforts at union organization
would avail them nothing; exhibiting to its employees any film conveying the mes-
sage that union organization would be futile and that strikes and violence are the
inevitable concomitants of union organization; creating among its employees the
impression that their union activities are under surveillance and inviting its employ-
ees to report the union activities of their fellow employees; and making visits to the
homes of its employees for the purpose of discouraging union activities or organiza-
tion and to secure the cooperation of its employees in preventing union activities.
(c) Discouraging membership in International Union of Electrical, Radio and
Machine Workers, AFL-CIO, or any other labor organization of its employees, by
discharging any of its employees, or in any other manner discriminating against
them with respect to their hire or tenure of employment or any term or condition of
their employment.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action I find will effectuate the policies of the Act:
(a) Offer to Alejandro Vasquez immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights and
privileges and make him whole for any loss of pay he may have suffered by reason of
the Respondent's discrimination against him in the manner and to the extent set forth
in section IV of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying all payroll records necessary to give effect to the backpay
requirement.
(c) Post at its San Antonio, Texas, plant copies of the attached notice marked
"Appendix." 24 Copies of said notice, to be furnished by the Regional Director for
Region 23, shall, after being duly signed by Respondent's representatives, be posted by
Respondent immediately upon receipt thereof, and be maintained by it for 60 con-
21 If this Recommended Order be 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 be 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 "
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secutive days from the date of posting, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith 25
It is further recommended that the complaint herein be dismissed as to all allega-
tions other than those specifically found herein to be unfair labor practices.
25 If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 23, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES OF OUR SAN ANTONIO, TEXAS, PLANT
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT question applicants for employment concerning their prior union
activities, either directly through our own supervisors, or indirectly through
Texas Industrial Surveys, Inc., or through any similar organization.
WE WILL NOT interrogate our employees coercively concerning their union
activities or sympathies; or warn our employees against supporting a union if they
wish to avoid serious consequences to themselves or their families; or make
threats of discharge or other reprisals, or promise or confer benefits upon our
employees in order to discourage them from supporting a union; or announce to
our employees that we are the sole sources of benefits, and that, therefore, their
efforts at union organization will avail them nothing; or exhibit to our employees
any film conveying the message that union organization would be futile and that
strike and violence are the inevitable result of union organization; or create
among our employees the impression that their union activities are under sur-
veillance; or invite our employees to report the union activities of their fellow
employees or make visits to the homes of our employees for the purpose of dis-
couraging union activities or organizations and to secure their cooperation in
preventing union activities.
WE WILL NOT discourage membership in International Union of Electrical,
-Radio & Machine Workers, AFL-CIO, or any other labor organization of our
employees, by discharging any of our employees, or discriminating against them
in any other manner with respect to their hire or tenure of employment, or any
term or condition of their employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist International Union of Electrical, Radio & Machine
Workers, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any and all such activities.
WE WILL offer to Alejandro Vasquez immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges and make him whole for any loss of pay he may have
suffered by reason of our discrimination against him.
All our employees are free to become or remain, or refrain from becoming or
remaining members of any labor organization.
THE BORDEN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 pro-
visions, they may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. 228-4722.