Blue Bell, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1970

186 N.L.R.B. 712 (N.L.R.B. 1970)

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hicks-Ponder Co., A Division of Blue Bell, Inc. and El
Paso District Joint Board , Amalgamated Clothing
Workers of America, AFL-CIO. Cases
28-CA-1922, 28-CA-1942, and 28-RC-1901
November 24, 1970
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On May 18, 1970, Trial Examiner Robert L. Piper
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices.
The Trial Examiner also recommended that certain
objections to conduct affecting the results of the
election held in Case 28-RC-1901 at the Employer's
plant on July 11, 1969, be sustained and that the
election be set aside and a new election be directed.
Respondent filed exceptions to the Trial Examiner's
Decision together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case,' and hereby adopts the
findings,2 conclusions,3 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Hicks-Ponder Co., a division of Blue
Bell, Inc., El Paso, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election conducted
on July 11, 1969, among employees in the designated
unit of Hicks-Ponder Co., a division of Blue Bell, Inc.,
its El Paso, Texas, plant be, and it hereby is, set aside,
and that said case be, and it hereby is, remanded to
the Regional Director for Region 28 to conduct a new
election when he deems that circumstances permit the
free choice of bargaining representative.
[Direction of Second Election4 omitted from
publication.]
i Respondent's motion for oral argument is denied
2 The Respondent excepts to certain of the Trial Examiner's credibility
resolutions It is the Board's established policy, however, not to overrule a
Trial Examiner's credibility resolutions unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that they are
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d
362 (C A 3)
1 Chairman Miller concurs, but finds that Section 8(a)(1) was violated,
and the election interfered with, only by the discharges and by Melendez'
statements that strikers would be unable to secure other jobs (which in his
view is at least susceptible of an inference that Respondent was threatening
to blackball strikers with other employers in the area) and by her implied
promise to the employees of a paid holiday in lieu of the Employer's
annual picnic
+ In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236. NLRB v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 28 within 7 days of
the date of this Decision. Order, and Direction of Second Election The
Regional Director shall make the list available to all parties to the election
No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER , Trial Examiner : Upon an original
charge in Case 28-CA-1922 filed July 28, 1969 , 1 amended
August 28 , and an original charge in Case 28-CA-1942
filed September 2, by El Paso District Joint Board,
Amalgamated Clothing Workers of America , AFL-CIO
(hereinafter called the Union ), against Hicks -Ponder Co., a
division of Blue Bell, Inc . (hereinafter called Respondent),
a consolidated complaint was issued against Respondent
on September 29 alleging violations of Section 8(a)(1) and
(3) of the Act.
On October 6 in Case 28-RC-1901 the Regional Director
for Region 28 directed a hearing before a Trial Examiner
on the Union 's objections to conduct affecting the results of
the election , and directed that such hearing be consolidated
with the hearing on the consolidated complaint and that
thereafter Case 28-RC-1901 be transferred to and
continued before the Board . On November 14 the Regional
Director issued an amended order consolidating cases and
an amended complaint alleging additional violations of
Section 8(a)(1) and (3) of the Act , thereafter again amended
at the hearing. The objections consolidated for hearing with
the complaint are limited to the period from March 24, the
i All dates hereinafter refer to 1969 unless otherwise indicated
186 NLRB No. 92
HICKS-PONDER CO.
date of the filing of the petition, to July 11, the date of the
election.2 Respondent's answer as amended denied the
alleged unfair labor practices.
Pursuant to due notice, this consolidated proceeding was
heard by me at El Paso, Texas, on various dates from
December 2 to 18. The General Counsel and Respondent
filed briefs. The General Counsel's unopposed motion to
correct the official transcript of proceedings is hereby
granted as set forth in attached Appendix A [omitted from
publication 1.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Texas corporation engaged in the
manufacture and sale of men's wearing apparel with its
principal office and place of business at El Paso, Texas.
Although Respondent operates other manufacturing
plants, its plant at El Paso is the only plant involved in this
proceeding. During the past year Respondent sold
merchandise valued in excess of $500,000, and sold and
shipped from its El Paso plant more than $50,000 worth of
merchandise directly to points outside the State of Texas.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Introduction and Issues
This consolidated proceeding involves 11 allegations of
interference, restraint, and coercion, alleged discrimination
by the discharge of two employees, the transfer of two
employees to less desirable jobs, and the subsequent
discharge of one of the transferred employees and the
objections to conduct affecting the election, substantially
encompassed within the allegations of the complaint except
that the objections are limited to the period from March 24
to July 11.
The issues as framed by the pleadings and the objections
are: (1) discriminatory discharge of an employee on May
22, and of another on May 23; (2) discriminatory transfer
of two employees on or about June 5; (3) discriminatory
discharge of one of said transferred employees on July 23;
(4) interference, restraint, and coercion by (a) giving
employees on several occasions the impression that their
union activities were being kept under surveillance; (b)
actual surveillance on two occasions, of the employees'
union activities; (c) distributing literature and making oral
statements to employees advising them that election of the
Union would result in a strike, that they would be
prejudiced or hurt thereby, and that they would be
713
terminated for engaging in a strike; (d) offering, promising,
and granting employees increased paid holidays and other
benefits to induce them not to support the Union; (e) telling
employees that if the Union won the election Respondent
would not negotiate, agree to any collective-bargaining
agreement, or agree to any of the Union's proposals, that
therefore a strike would result, and that they would be
prejudiced or hurt thereby, including terminated for
engaging in a strike; and (5) informing employees that
Respondent knew the names of all employees who had
signed for the Union, an objection not encompassed within
the allegations of the complaint.
B. Chronology of Events
The Union has been trying to organize Respondent's
employees for approximately 15 years.3 The current
organizational campaign commenced about 5 or 6 years
ago. At that time the Union sent Respondent a telegram
listing more than 50 employees as members of the Union's
organizing committee , so that thereafter Respondent knew
the identity of most of the employee advocates of the
Union. The complaint named some 40 individuals who
Respondent admitted were supervisors within the meaning
of the Act . In addition it identified two individuals,
subsequently corrected on the record , as officials of Blue
Bell, Respondent 's parent organization . They were E. A.
Morris, chairman of the board of directors , and J. L.
Williams, personnel director . Respondent 's principal
officials involved in this proceeding were J. Hart Ponder,
president ; Richard Hamilton , plant superintendent; Till-
man McQuien , plant manager ; Robert Daniel, plant
engineer ; and Mary Melendez , personnel counselor. Most
of Respondent's employees spoke Spanish . Melendez spoke
Spanish and English fluently.
In the spring of 1969 the Union apparently increased the
tempo of its long-running organizational campaign. On or
about March 7 Carolina Baca, a known union advocate
employee, was taken by her foreman to Melendez ' office.
Melendez informed Baca that it had been reported to
Respondent that she had been soliciting for the Union
during working hours when she and the employees solicited
were supposed to be working . In reply Baca denied that she
had been soliciting for the Union during working time,
admitting that she knew such was improper and a violation
of the rules. Melendez warned her that she could not do so
and that if it happened in the future she would be
discharged. Respondent gave Baca a written notice to the
same effect . Nothing further came of this incident.
On March 24 the Union filed a petition for an election
with the Board. The Board 's representation hearing was
held May 9. On May 13 Respondent , in a speech to all of
the employees by Ponder, commenced a campaign
designed to persuade the employees not to vote for the
Union in the forthcoming election . Respondent employed
approximately 750 production and maintenance employ-
ees, and Ponder addressed them in groups of from 50 to 100
until the speech had been delivered to all. The same
procedure was followed in subsequent speeches. After
2 Ideal Electric & Manufacturing Co, 134 NLRB 1275 (1961)
3 Hicks Ponder Company, 168 NLRB No 103 (1967)
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advising the employees that the Board had held a
representation hearing the prior week and that an election
would be held in a month or so, Ponder told the employees
that Respondent did not want the Union in the plant and
was going to do everything legally possible to keep it out.
He advised the employees that Respondent would continue
to provide everything which went to make up a good job so
that they would never want or feel it necessary to belong to
a union. He stated that Respondent was going to do
everything within its power to make improvements , assure
the employees of steady work, and do what it could to
improve earnings. He told the employees that where there
were unions there were often strikes and trouble, and that
the Union would work to their harm, not their benefit,
characterizing such as "this horror." He accused the Union
of making false promises and claims and advised the
employees that such benefits would not automatically
occur if the Union were elected but would only take place
through cooperativeness and teamwork which was better
than the fighting and discord brought about by unions. He
concluded by advising the employees that Respondent
would keep them informed of developments.
On May 21 employee Reynalda Castellanos returned to
her job from an extended maternity leave which com-
menced in January. On or about April 21, Respondent had
extended Castellanos' maternity leave an additional 30
days as a result of a certificate signed by her physician, Dr.
Palafox, an orthopedic surgeon who had been treating
Castellanos for a back injury she sustained in March 1968
while working for Respondent. Castellanos had recovered
and returned to work in October 1968 with Dr. Palafox's
approval and had continued to work without pain or
difficulty until commencing her maternity leave in January.
At Respondent's request Castellanos furnished it with a
certificate from Dr. Palafox stating that he had examined
her and advised her to return to work May 21. Respondent
knew that Castellanos was a union advocate, her name
having been included in the list of members of the
organizing committee the Union sent to Respondent.
Respondent assigned Castellanos to the same job in
Respondent's training center she had held prior to her
maternity leave, operating two tandem sewing machines
which made button holes and sewed on buttons, respective-
ly. However, she had a different instructor-supervisor,
Frances Meza, under whom Castellanos had never
previously worked. Upon her return May 21, Castellanos
discovered that the sewing machines she operated were too
high, having been adjusted for a taller operator. The
operator was required to stand and Castellanos was of
extremely short stature. That afternoon she advised Meza
that the machines were too high and that it was difficult
and uncomfortable to reach up to insert and smooth the
sewing. Meza informed Don Adelsperger, the head
supervisor of the training center, who in turn requested
Jack Kostielney, one of Respondent's mechanics, to lower
the machines. This was done the following morning.
The machines were lowered as much as possible, which
also required the adjustment of certain drive belts.
Castellanos did not speak English, so her messages were
conveyed by Meza to Adelsperger and Kostielney. During
the afternoon of May 21 before the machines were
adjusted, and during the following day, after they were
adjusted, on several occasions Castellanos complained to
Meza that the machines were sewing improperly, skipping,
making knots, breaking thread, breaking needles, and
tearing material. As a result, Meza summoned Kostielney
to check the machines about five or six times. He testified
that on each occasion he was unable to find anything wrong
with the machines although he stood there observing
Castellanos operate them. As a result of Castellanos'
various complaints about the condition of her machines,
Meza complained to Adelsperger about Castellanos'
complaining. Meza told Adelsperger that Castellanos'
complaints were upsetting Meza so much that she would
need tranquilizers for her nerves.
Consuelo Tarin was employed by Respondent as a
sewing machine operator on a line adjacent to the training
center where Castellanos worked. Tarin was a member of
the Union's organizing committee, but Respondent did not
know that she was a union advocate. She was employed
after the Union sent the list of names to Respondent. On
May 22 Castellanos and Tarin went to lunch together at
11:15 a.m. They proceeded down the plant stairway to the
main entrance on the first floor, because Respondent's
cafeteria was across the street in another building. There
was a small hall or foyer inside the entrance. Tarin was
discussing with Castellanos the desirability of visiting
another woman employee at her home that evening to
request her to sign a union card. Tarin knew the employee
by sight but not name, whereas Castellanos, who had been
employed for a number of years, knew the names of many
employees. They were standing in the foyer immediately
inside the entrance way to the plant or on the sidewalk
immediately in front of the plant. Castellanos told Tarin
that the girl they were discussing had already signed a
union card, but Tarin suggested that they seek her signature
on a new form of card the Union had adopted. Castellanos
agreed to go to the girl's house that evening with Tarin. The
girl whom Tarin was trying to describe to Castellanos
passed by and Castellanos pointed at her, asking Tarin if
she was the girl. Tarin replied that she was. Castellanos
knew the girl's name and told it to Tarin. While Tarin and
Castellanos were having this discussion, unknown to them
Carmen Molinar, the supervisor of the sewing line in which
Tarin worked, was standing from 3 to 5 feet behind them, in
a position from which she could readily overhear their
conversation and observe their actions. Both Tarin and
Castellanos happened to look back and saw Molinar
standing there within a few feet staring at them and
observing their actions. While a number of other employees
were passing by on their way to lunch, there was no one
between Molinar and Tarin and Castellanos. Tarin
commented to Castellanos that the "jig was up." After
Tarin and Castellanos discovered Molinar's presence, she
stared at them for a few moments and then proceeded into
the plant. Castellanos described this incident as occurring
in the foyer inside the plant adjacent to the entrance,
whereas Tarin recalled it as happening just outside the
entrance of the plant on the sidewalk. In other respects their
testimony was substantially the same. Molinar denied
having overheard any such conversation, observed such
actions, or having ever observed them together. I credit
HICKS-PONDER CO. 715
Tarin and Castellanos, and find that under the circum-
stances Molinar was able to and did overhear their
conversation and observe Castellanos point out and
identify the employee to Tarn. Both described Molinar as
"glaring" at them, but this, of course, was a subjective
conclusion which I do not find. Molinar knew that
Castellanos was active in the Union, but was previously
unaware of Tann's union activities.
After lunch Tann and Castellanos returned to their jobs.
This was the same day that Castellanos complained about
the troubles with her sewing machines to Meza on several
occasions. When the sewing machine operators sewed
garments improperly, such mistakes were ascertained by
inspectors. Respondent employed both line inspectors and
quality control inspectors for this purpose. The inspectors
were employees, not supervisors. Respondent called these
mistakes "repairs" because they were returned to the
operator to be corrected or repaired. Tann's forelady had
been Jessie Herrera, but the preceding day Molinar, the
supervisor, had switched foreladies so that Lily Martinez
had become Tarin's forelady. Respondent employed
supervisors who were above the foreladies. Martinez had
brought Tarin approximately 18 pairs of slacks for repairs
approximately 45 minutes before the lunchbreak. Tarin had
completed approximately 12 of the repairs before going to
lunch. The slacks were dark green and she used a light blue
thread, the wrong color. Although the repairs were on the
inside of the slacks and would not be visible when worn,
this admittedly was improper procedure by Tarin.
Shortly after lunch, Martinez discovered Tarin's mistake
and called it to Molinar's attention. Molinar and Martinez
took the repaired slacks to Tarin and pointed out what she
had done. Tarin admitted her mistake but said that she
thought that it did not make much difference inasmuch as
the repairs would not be visible when the slacks were worn.
Tarin immediately redid the repairs with the correct color
thread. Nevertheless Molinar informed Hamilton and
Melendez that she was going to fire Tarin because of her
mistake and her prior poor quality production, i.e.,
excessive repairs, concerning which she had been warned
twice. Later that afternoon Molinar and Martinez took
Tann to the personnel office, where Melendez informed
Tarn that she was being discharged for her improper repair
of the slacks and her poor quality production. According to
the testimony of Molnar and Martinez, neither informed
Melendez or Hamilton that Tarin had promptly corrected
the repairs after her use of the wrong color thread had been
called to her attention. In addition to the improper repairs,
Molinar and Martinez claimed that they had subsequently
found Tarin's other undone repairs in the wrong place, i.e.,
where completed repairs were placed, and two bundle
tickets improperly attached to Tarin's production sheet,
indicating completed production which she had not
commenced. Neither of these alleged improprieties were
discussed during Tarin's discharge interview. Molinar and
Martinez admitted that they did not know if Tarin had
placed the undone repairs in the wrong place or had
attached the bundle tickets to her production sheet . Neither
of them asked Tarin for an explanation of these alleged
facts. Although Molinar claimed that both matters were
serious, she did not explain why she did not call them to
Tarin 's attention or bring them up during her discharge
interview.
Molinar had warned Tarin on April 9 and May 20 that
her repairs were excessive . Tarin had started her employ-
ment in the training center , had been transferred to the
production line January 22, and had not reached Respon-
dent 's production quota . During the interview Tarin
admitted the use of the wrong color thread and her two
prior warnings from Molinar concerning her excessive
amount of repairs . Molinar discussed Tarin's improper
repair with Hamilton , but he was not present when Tarin
was discharged . Hamilton claimed that he made the
decision to discharge Tarin . Molinar claimed that she
discharged Tarn . The record reveals that the decision was
made before hearing from Tarin at the discharge interview.
Melendez had prepared Tarin 's discharge notice and two
checks before she arrived in the office . Tarin refused to sign
the termination notice.
The following day at lunchtime Respondent summoned
Castellanos to the personnel office , where Meza , Adelsper-
ger, Hamilton , and Melendez , among others , were present,
and discharged her for the reason stated on her termination
notice : physically unable to perform work . During the
interview Melendez informed Castellanos that Respondent
had reached the conclusion that she was physically unable
to perform her work because she had been "constantly"
complaining for the past 2 days about the condition of her
tandem sewing machines and about her back hurting.
Castellanos denied that her back hurt or that she had
complained about her back hurting at any time. She
conceded complaining to Meza about the various deficien-
cies in her sewing machines, as a result of which the
mechanic had been called to check the machines five or six
times. During the interview Meza stated she had com-
plained to Adelsperger several times about being so upset
and nervous that she would need tranquilizers because of
Castellanos ' complaints . Meza had not previously con-
veyed this complaint to Melendez or Hamilton. In his
deposition and affidavit , Adelsperger made no statement
that he had conveyed Meza 's or Castellanos' complaints to
Melendez. Melendez testified that Hamilton and Adelsper-
ger had conveyed Meza 's complaints to Melendez, but
neither of them corroborated her testimony in that respect.
Admittedly Castellanos , after her return to work in
October 1968 from her back injury, had worked from then
until her maternity leave in January without any com-
plaints about her back and without physical difficulty.
Melendez admitted that on May 21 Castellanos had
informed her that she was well and had no trouble with her
back, and that she had returned with a doctor 's certificate
stating that she was physically able to work . Admittedly the
first day that Castellanos worked her machines were too
high . They were lowered the following day so that she could
perform the work . Respondent 's witnesses admitted that
the operator had to sew standing up, and if the machines
were too high , as they were for Castellanos upon her return,
they would cause discomfort and make the task difficult to
perform because the operators arms had to be above the
level of the machine to insert and smooth the garments as
they were sewn . Castellanos told Melendez that Castellanos
had complained about the deficiencies in her sewing
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines because she had been instructed to do so by her
former supervisor on the same job prior to her maternity
leave, in order not to be charged with repairs caused by
defects in the machines. Meza thereupon stated that
Castellanos had more repairs than the other two operators,
who were new trainees, combined. As a result of those prior
instructions Castellanos kept notes during the 2-day period
of the various troubles she encountered in the operation of
the sewing machines, which activity was one of Meza's
complaints about Castellanos. Castellanos knew that her
friend Tarin had been discharged the previous day
allegedly for excessive repairs. Meza, as instructor supervi-
sor, decided whether repairs were the fault of the operator
or the equipment.
Melendez informed Castellanos that Respondent had
decided that she was physically unable to perform the work
and accordingly was discharging her. Castellanos asked
Melendez how she could conclude in 2 days that
Castellanos was physically unable to perform her work, in
the face of a doctor's certificate she had brought in two
days before stating that she was physically able to return to
work. Melendez replied that because of her constant
complaining about her working conditions, which a normal
operator would not do, Respondent had concluded that she
was physically unable to perform the work. Respondent did
not contact Dr. Palafox. Castellanos then pointed out that
it was Meza who was upset, nervous, and complaining
about her physical condition, not Castellanos, and that she
had not complained about her physical condition. Because
of Melendez' repeated references to Castellanos' physical
condition, Castellanos pointed out that her back injury had
originally occurred while working for Respondent. Melen-
dez replied that she should take this up with Respondent's
insurance company carrier, against whom Castellanos had
already filed a claim with respect to her back injury in 1968.
In spite of Castellanos' repeated protests that she was
physically able to do the work, Respondent discharged her
that day. As in the case of Tarin, Melendez already had
Castellanos' termination notice and checks prepared when
she arrived in the personnel office. Castellanos refused to
sign the termination notice. Castellanos took her termina-
tion notice to her attorney, also counsel for the Union, who
sent her to Dr. Palafox. Castellanos showed Dr. Palafox her
termination notice, which stated that she was physically
unable to perform work. The record contains considerable
evidence with respect to Castellanos' physical condition
and back injury, including the testimony and reports of Dr.
Palafox, which will be considered hereinafter in connection
with her discharge.
Juanita Ortiz, employed as a pickup girl, was the
president of the Union's organizing committee. Respondent
knew that Ortiz was a member of the Union's organizing
committee. The job of the pickup girls was to pick up from
a repair bench the operator repairs which the various
inspectors had found and placed there, enter them on
records, separate them according to the forelady in charge
of the operator who had made the mistake necessitating
repairs, deliver them to the forelady's bench for repair by
the operator, and after they were repaired, pick them up
again , sort them and send them to the pressing department.
In the performance of this job the pickup girls were not
required to communicate with the operators and inspectors,
but only with their supervisor and the foreladies upon
occasion . Carmen Ybarra , who was supervisor of the
pickup girls , left Respondent in March . After her departure
she was not replaced and her function was assigned to
Consuelo Gallardo , who thereupon became Ortiz ' supervi-
sor. After Ybarra's departure Ortiz was subject to less
immediate supervision because of Gallardo 's additional
duties as line supervisor . As a result Ortiz engaged in more
talking during working hours with fellow employees. On
two occasions after Ybarra 's departure , the last being May
30, Gallardo warned Ortiz not to engage in excessive
talking during working time . Respondent permitted
occasional talking and brief conversations between employ-
ees while working , but of course prohibited excessive
talking which interfered with the work of either participant.
Some 5 years earlier Respondent had changed its pickup
procedure because of excessive talking between the pickup
girls and the operators . Under the prior procedure the
pickup girls delivered the repairs directly to the operator
concerned , which led to discussions and excessive talking
between them . Respondent changed the procedure so that
the pickup girls delivered the garments to be repaired to the
bench of the forelady , who in turn delivered the repairs to
the operators underneath her. This eliminated the prior
contact between the pickup girls and the operators and the
resultant excessive talking.
On June 3 , 4 days after her last warning to Ortiz about
excessive talking , Gallardo observed Ortiz in a conversation
with Lily Vargas, a line inspector, and Rey Hernandez, a
foreman in the cutting department . Ortiz' work did not
require her to have contact with either of these employees.
After observing the three for several minutes Gallardo
approached, told Ortiz if she had any problem to let
Gallardo know , and if not to return to her work station.
Ortiz in reply yelled that she was not talking but was
waiting for the other two to finish talking so that she could
discuss some work matter with Vargas. Gallardo replied
that Ortiz had no business talking to inspectors since her
job was pickup and again told her to return to her work
station . Ortiz in reply said that she was going to the office to
complain about Gallardo . This and the yelling angered
Gallardo , who thereupon told Ortiz that she was going to
take her to the office, which Gallardo proceded to do.
Hamilton and Melendez were also present at this meeting,
and after hearing Gallardo 's and Ortiz' versions of the
incident , Melendez warned Ortiz that she was not to engage
in excessive talking and reminded her that she had
previously been warned . During the interview Ortiz
conceded that she had engaged in talking in the past, but
contended that it was related to her work, that Gallardo
was picking on her , and, moreover, that Ortiz, in talking to
the inspectors , was performing part of Gallardo's duties at
her instruction . Gallardo vehemently denied this and
informed Ortiz that she should not do Gallardo 's work and
that she was fully able to do her own work. Gallardo also
complained about the manner in which Ortiz had yelled at
her. Hamilton also informed Ortiz that it was not her
function to perform Gallardo's work or to engage in
conversations with the inspectors , and that if she had any
work problems she should take them up with her supervisor
HICKS-PONDER CO. 717
and not engage in excessive talking with other employees.
Ortiz again insisted that she talked only about work
matters. She was instructed to return to her work station.
During the interview Ortiz insisted that she had not been
talking but was waiting for Vargas and Hernandez to finish
their conversation so that she could talk to Vargas, and
requested Melendez to verify this with Vargas and
Hernandez. Be that as it may, the record establishes that it
was not part of Ortiz' duties to talk with Vargas or
Hernandez. Ortiz admitted frequently talking to inspectors
about work matters, such as identifying the operators'
numbers on tapes attached to the garment bundles, which
was not part of her duties and which she had been
instructed not to do.
Later that afternoon Daniel, the plant engineer, informed
Hamilton and Melendez that at 8 o'clock that morning
while making a time study, he had observed Ortiz talking to
Herminia Hurtado, a quality control inspector, for 10
consecutive minutes. Ortiz had pushed aside her work cart
and stood at Hurtado's work station talking with her for 10
minutes. At approximately 9 and I I a.m. Daniel returned to
the area and each time again saw Ortiz and Hurtado talking
in the same position, but he did not time the duration.
Because Melendez was otherwise engaged in making
speeches to the employees that day, she did not take action
until the following morning, at which time she received a
full report of the incident from Daniel. Shortly thereafter
she received a report from an employee who stated that she
had observed Ortiz in the ladies' restroom discussing the
Union with a group of employees at a time when she and
they were supposed to be working. As a result of these two
reports, Melendez had Gallardo bring Ortiz to the
personnel office again. Hamilton and Daniel were also
present. Melendez told Ortiz that the previous day she had
claimed that Gallardo was merely picking on her and that
she only talked about work matters, but that since then
Melendez had received the above reports from Daniel and
the employee who had observed Ortiz in the restroom. Ortiz
denied having discussed the Union with any employees in
the restroom, pointing out that she knew better than that
and knew that she was not permitted to discuss the Union
during worktime. Ortiz admitted that she had been talking
to 1-lurtado the previous morning, first stating that it was
during a break period. When Daniel pointed out that it was
8 a.in., long before the break period, Ortiz replied that she
and Hurtado had been discussing business; i.e., certain
operators' numbers which Hurtado allegedly did not
understand. Ortiz did not deny Daniel's statement that the
conversation had gone on for 10 minutes during which time
neither of them had been working. Melendez again
instructed Ortiz to return to her work station.
Melendez then had Hurtado brought to the personnel
office. Respondent was not aware of any union activity by
Hurtado. Jesus Sosa, supervisor of the quality control
inspectors, was also present. Melendez told Sosa what
Daniel had observed. Sosa said that he had warned
Hurtado on two previous occasions, the last being March
14, about excessive talking to other employees, particularly
the pickup girls, and that she had admitted that she had
been talking to other employees and had said that she
would cease doing so. Sosa's primary duties were on the
first floor and as a result he was unable to keep an eye on
Hurtado, who worked on the second floor as did Ortiz. The
quality control inspectors made random spot checks of the
garments for defects and repairs and unlike the line
inspectors were expected to perform their work with little
actual supervision . Their duties did not necessitate
conversations with the pickup girls.
Hurtado had been employed by Respondent for
approximately 17 years . Hurtado 's testimony was a maze of
contradictions and self -impeachment . After first testifying
that during her conference with Melendez she had denied
any talking with other employees , when confronted with
her affidavit Hurtado admitted the contrary. When
confronted with Daniel's statement during the conference
Hurtado admitted that she had been talking to Ortiz at 8
a.m. the preceding morning for 10 minutes when both were
supposed to be working , and had also been talking with her
at 9 and I I a .m. After first testifying that they had been
discussing work matters , Hurtado on cross -examination
admitted that they had been discussing many subjects
unrelated to work and that they frequently had engaged in
such conversations after Ybarra left Respondent's employ
because there was no supervisor constantly present to
prevent them from doing so. Hurtado pointed out that Sosa
normally worked on the first floor and hence was not
present on the second floor . She admitted having been
warned previously by Sosa about engaging in such
excessive conversations . Melendez also told Hurtado that
Daniel had observed her talking to another employee on
the third floor after the work bell had rung. Hurtado
admitted this but stated that the bell on the second floor
where she worked did not ring until 2 minutes later.
Melendez pointed out that nevertheless she was interfering
with the work of the other girl.
After Hurtado admitted at the conference that she and
Ortiz had frequently engaged in such conversations because
of lack of supervision and that, contrary to Ortiz, they had
been talking for 10 minutes the preceding day on matters
unrelated to work , Melendez informed Hurtado that
because of her long years of service with Respondent they
were not going to terminate her but instead transfer her to
another job in the training center where she would be under
direct supervision and learn to operate a sewing machine.
Hurtado protested the transfer , claiming that she probably
would be unable to learn to sew and hold down such a job,
and asked for another chance as inspector, which Melendez
and Hamilton refused . Before leaving , Hurtado stopped to
see Ponder to ask him to rescind her transfer . Ponder told
her that he would have to check with Melendez and
Hamilton , and the following day informed Hurtado that he
could not reverse their decision. However , Ponder instruct-
ed Hamilton and Melendez to give Hurtado every
opportunity to make it in the training center because of her
long employment by Respondent . Melendez and Hamilton
then informed Ortiz what they had ascertained from
Hurtado, contrary to Ortiz, and that they were transferring
Ortiz to the training center so that she could be kept under
adequate supervision.
On June 6 both Hurtado and Ortiz were transferred to the
training center to learn to operate a sewing machine, which
the record establishes was a less desirable job than either
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quality control inspector or pickup girl. Ortiz testified that
during her first day in the training center her supervisor,
Ester Juarez, instructed her not to go to the bathroom
except in cases of absolute emergency. Juarez testified that
she had never instructed Ortiz not to go to the bathroom. I
credit Juraez. The record establishes that Ortiz was inclined
to downplay her deficiencies and exaggerate those of
Respondent.
On or about June 4 and 5, Melendez gave a series of
identical speeches concerning the Union and the forthcom-
ing election to all of the employees. She characterized this
speech as her "economic" speech, in which she presented
economic arguments why the employees should vote
against the Union. She presented arguments that Respon-
dent's employees were as well off with respect to pay and
benefits as the employees of the unionized plants in El
Paso. Apparently it was brought to her attention that the
union plants in El Paso had one more paid holiday annually
than Respondent granted its employees. Melendez then
asked the employees present to vote by a show of hands
whether they wanted an additional paid holiday annually in
lieu of Respondent's annual picnic, held on a Saturday, a
nonwork day. Melendez, whom I do not credit in that
respect, testified that, in spite of calling for a vote on the
matter, she told the employees that she could not promise
them anything and that Respondent would let them know
how it came out. Several employees testified that at the
meetings which they attended a substantial majority voted
in favor of the additional paid holiday. All of the employees
who testified with respect to these meetings said that they
were never informed as to the outcome of the vote.
Melendez testified that Respondent tabulated the results of
all the meetings and that the majority voted in favor of the
picnic. She also testified that this information was available
to any employee who asked for it. No employee testified
concerning receipt of such information. In this respect I do
not credit Melendez. Respondent offered no proof
concerning the tabulation itself and failed to produce any
employee who had been informed concerning the results,
whereas to the contrary all of the employees who testified
about the meetings said that a substantial majority voted in
favor of the paid holiday and that they never learned the
overall outcome. It seems self-evident that monetarily a
day's pay would be substantially greater than whatever one
might consume at a picnic, and that therefore a majority
would prefer an additional paid holiday to a picnic on their
own time. The record testimony of employees present at the
speeches establishes that they were given to understand that
Respondent was offering them an additional paid holiday,
not subject to any reservation except their choice, in an
attempt to equal the benefits granted by union plants in El
Paso, voted in favor of the holiday, and were not thereafter
informed with respect to the overall outcome.
On June 18 Respondent warned Ortiz with respect to her
low production and Hurtado with respect to her low
production and poor quality in the training center, and
advised both that they must make a marked improvement.
Hurtado's production was particularly poor, being substan-
tially below standard, and Adelsperger wanted to terminate
her. However, at Ponder's request, Melendez and Adelsper-
ger agreed to continue working with her in an attempt to
improve her performance. The same day the Regional
Director issued his decision directing an election July 11.
On June 24 Respondent, in a continuation of its
campaign against the Union, delivered a letter in both
Spanish and English signed by Ponder to all of its
employees. It advised the employees that the election would
be held July 11 and urged them to vote against the Union.
It urged the employees to consider carefully the cost of
unionism, warning that they and their families would be
hurt rather than helped by the Union. It stated that
Respondent had shown them how it had better wages and
benefits than the union factories in El Paso. It warned them
that the possible costs of strikes were lost wages, loss of
property when there was no money to pay bills, and very
real possibility of losing their jobs.
On July 9 Respondent distributed a six-page letter signed
by Ponder and Morris and a six-page pamphlet in question
and answer form, both in Spanish and English, to all of the
employees. The letter, after referring to the election to
occur in 2 days, on the one hand stressed the futility of
selecting the Union and on the other the serious harm that
would in all probability result to the employees and their
families if they did so. Among other things, it stated that
selecting the Union absolutely would not automatically
bring any wage raises or other benefits, that Respondent
could not be forced to do anything which it did not want to
do, and that as a result the Union would call a strike, to
which Respondent would not yield, and that a strike would
cause trouble and discord, including violence, fights and
misery, loss of wages, unpaid debts on homes and
automobiles, and loss of jobs. It stressed as a dangerous
consequence of such striking that the strikers would lose
everything, including their jobs. It pointed out that
Respondent definitely had the right to fill the jobs of the
strikers and when the strike was over those whose jobs were
filled while they were striking automatically lost their right
to return to work or get their jobs back.
With respect to this last statement, Irene Valle, Melendez'
secretary, testified that she translated the English version of
the letter into Spanish and mistakenly included the above
statement instead of that in the English version, which
read: "Those whose jobs are filled while they are out on
such a strike will have no right automatically to return to
their jobs, or get their jobs back-even when the strike has
ended." Mistake or not, admittedly the Spanish version
found above was distributed to all of the employees, the
substantial majority of whom read only Spanish. The letter
then cautioned the employees not to overlook any of the
foregoing before deciding how to vote. It pointed out that
their jobs and security for them and their families could
only be accomplished by working together, not by pulling
apart. It asked the employees to wait in order to give Blue
Bell, the new owner, an opportunity to make improve-
ments, including keeping their earnings steadily moving
upward, which they could count on without having to pay
any union dues . Returning from benefits to detriments, it
pointed out that instead of the job security promised by the
Union many union employees wound up without any jobs,
because the plant closed and went out of business. After
numerous other statements, it concluded with a final
HICKS-PONDER CO. 719
admonition that the employees stood to lose if the Union
wei e to get in and stood to gain by keeping it out.
The six-page pamphlet in question and answer form, also
in Spanish and English, was distributed to all of the
employees on July 9 with the aforesaid letter. This question
and answer pamphlet was entitled "Unions-Can They Do
What They Say?" It pointed out the futility of selecting the
Union because that would not result in wage raises, only
Respondent decided what the wages would be, and the
Union could not make Respondent do anything it did not
want to do voluntarily. It added that the Union would
probably have to call an economic strike because
Respondent would not give in to any of its unreasonable
demands, which in turn would result in lost wages and the
possible loss of homes, cars, and furniture. It then pointed
out that in such event Respondent would replace the
strikers and they would have lost their jobs. It stated that
there would be a contract only if Respondent and the
Union reached agreement and that in many cases no such
agreement was ever reached. It noted that the employees
would not have more Job security if the Union were elected
and in fact would have less job security under a union
contract.
On the same day, Melendez delivered a series of identical
speeches to all of the employees in groups of some 50 to
100. Melendez' speech hammered away on the same
themes: the futility of selecting the Union; the fact none of
its demands would be granted; the inevitability of a strike;
the serious harm resulting to employees, including assaults
and violence; the loss of wages; the ensuing loss of homes,
automobiles, and other possessions; a warning that they
would be unable to obtain Jobs elsewhere; and the ultimate
loss of their jobs by permanent replacement of the strikers.
Melendez stressed the serious harm and dire consequences
that would befall the employees if they selected the Union,
without coupling the promises of benefit if they did not as
in the letter and pamphlet on the same date. Respondent
produced copies of all of its letters and pamphlets to the
employees and all of the speeches of Ponder, Morris, and J.
L. Williams, Blue Bell 's personnel director, but did not do
so with respect to Melendez' speeches of June 4 and July 9.
The findings herein concerning her July 9 speech are based
on her recollection and those of the employees who testified
concerning it. It was a long speech, consisting primarily of
dire predictions, and included at least two misrepresenta-
tions. Melendez used a number of props, including a velvet
board on which she mounted cards, a pointer, a viewgraph,
a newspaper clipping, maps of Texas and Louisiana, and a
copy of the Board's Rules and Regulations and the Act.
Respondent's counsel and either the plant manager or
superintendent were present during each speech.
In addition to her own speeches, Melendez interpreted
into Spanish all of the speeches made by Respondent's
other officials, and the record makes clear that the
employees considered Melendez one of Respondent's
principal spokesmen. She commenced by referring to her
economic speech of June 4 and advising the employees the
great expense the Union would be for them. She told the
employees that the Union was like a business, its organizers
were its salesmen , and they were trying to sell the
employees a product, which would cost the employees
$28,800 a year, with which Anthony Pena, the Union's
International representative, could buy a new automobile.
She said the employees should check the law and past
experiences to see what the Union really could do for them.
She told them, with reference to the Act, which she
displayed and invited them to check, the purported legal
rights of the Union, Respondent, and the employees. She
said that the Union had the right to meet and negotiate with
Respondent, that "negotiate" meant that the Union could
ask, argue, and strive to persuade Respondent to grant
benefits, but that Respondent had the right to and could
say no and was not required to make any concessions or
agree to any benefits. She stated that the employees had the
right to strike or not to strike, and that in the event of an
economic strike Respondent had another right under the
law: to continue to operate its plant and replace the strikers
with other employees, in which event the strikers would lose
their jobs and have no right to return to work after the
strike was over as long as the replacements remained
employed . (Some of Respondent 's statements concerning
permanently replacing strikers specifically referred to
economic strikes, some did not.)
With respect to prior experience, she told the employees
about many strikes the Union had caused in other plants
and the extreme hardships to employees brought about
thereby. She detailed the number of plants in Texas and
Louisiana where the Union had engaged in strikes. She
stated that such strikes resulted in the loss of wages and the
resultant loss of homes, cars, and other possessions. She
referred to the fact that many years before when
Respondent was located in a different plant, a bomb had
been thrown at the plant during a strike involving the
Union, there had been much violence, women had been
beaten, stripped, and assaulted, automobiles had been
smashed, and the employees had suffered great wage losses.
She told them that strikers would not receive unemploy-
ment compensation and that the Union would grant strike
benefits only to its favorites, not all of the strikers. (The
record established that the Union's policy in fact was to
grant strike benefits to all striking members.) She stated
that the Union's parent organization was urging the U.S.
Government to close the border to all "green-card" holders,
Mexican residents who crossed the border daily to their
jobs. Although she later so testified, she did not inform the
employees that she was referring to the AFL-CIO. (The
record establishes that the Union was not in favor of
closing the U.S. border to green card holders from Mexico.)
Respondent employed a substantial number of green card
holders living in Juarez. Melendez stated that she believed
that the strikers would not be hired by other employers in
El Paso because they would be unwilling to hire persons
who engaged in strikes or who might return to their former
jobs when the strike was over.
On July 10, the day before the election, Williams, Ponder,
and Morris delivered a series of speeches to all of the
employees. Williams read his speech in Spanish. He
stressed the importance of the decision on the following day
to the employees and their families with respect to their Jobs
and future at the plant. He stated that no union could make
Blue Bell do more than it had, and that it led the industry in
wages and benefits. He asked the employees to give Blue
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell a fair chance to achieve its objectives and all of the
improvements which it planned , without union interference
and the high cost the Union would mean to them. He
concluded by stating that a vote for no union was a vote for
Blue Bell.
Ponder addressed the employees next and his speech was
translated into Spanish by Melendez . He told the
employees that this same Union had been trying to get in to
Respondent 's plant for 25 years and had made the same
false promises through the years. He pointed out that they
had better jobs than any union factory in El Paso without
the fear of strikes hanging over them . He stated that
selecting the Union would not bring about higher wages
and benefits but on the contrary would result in their being
seriously hurt , as it had in the past when the employees
once selected this Union . He said that he wondered why the
50 or 60 employees who favored the Union did not leave
and go to work in union plants . This statement resulted in
considerable applause, .whereupon he added that he was
tired of the Union depicting him in a black suit cracking a
whip over the employees . (A circular of the Union received
in evidence had so caricatured Ponder .) He then stated that
the reason Respondent was so opposed to unionism was
because of the great potential losses that it could bring to
the employees and Respondent which they could never
recover, and that the sum and substance of all that
Respondent had tried to point out to the employees should
answer that question . He told the employees that they
should not be brainwashed by all of the Union 's lies and
promises , which it could never fulfill . He concluded by
asking them to vote no for the good of themselves and their
families. Morris in a brief statement advised the employees
that as Blue Bell 's chief executive he was in total agreement
with everything that Ponder and Williams had said.
On the morning of July 11 , Melendez called Pilar Gomez
to the office . Gomez was an employee for approximately 4
years and a member of the Union 's organizing committee,
known by Respondent to be a union advocate. Two
employees had reported to Melendez that Gomez had said
to them in the plant that Williams was calling Mexicans
"S.O.B.'s ." Many of the employees were of Mexican origin.
Gomez denied that she had made any such statement or
that she had heard Williams make any such statement
about Mexicans . Melendez replied that she did not know
whether Gomez had made such a statement , but that to do
so was a violation of company rules and if she did so she
would be terminated . Gomez , whom I do not credit in this
respect , testified that Melendez told her that she was not to
talk to anyone during the afternoon . Melendez whom I
credit in this respect denied any such statement. Gomez
returned to work and that was the end of the incident. At I
p.m. Gomez was selected by the Union to be an observer at
the election that afternoon . She had been on a list of
possible observers for the Union but was not selected or
informed that she would be such an observer until 1 p.m.
There is no evidence in the record that Respondent was
aware that Gomez was to be such an observer. The election
commenced at 2 p .m. and the vote was 575 against and 118
for the Union.
On July 14 Ponder issued a bulletin to all the employees
thanking them for voting for Respondent . On either July 14
or 17, Respondent began stationing from 6 to 12 of its
guards, supervisors , and officials , including its plant
manager , superintendent, and engineer , on the sidewalk
outside the plant , at or near the main entrance used by the
employees , for approximately one-half hour at starting
time , lunchtime , and quitting time every working day.
Respondent employed three uniformed and armed guards
for plant protection purposes . They were not supervisors
and had no authority to direct the employees . The General
Counsel contends that Respondent commenced this
activity on July 14, the first working day after the election,
while Respondent contends it did not commence until on or
about July 17. In view of the findings hereinafter made, it is
unimportant whether the activity commenced on July 14 or
July 17. It is undisputed that it continued thereafter without
cessation every morning, noon, and evening on workdays
up to and including the commencement of the hearings in
this proceeding.
According to Respondent , on the morning of July 14, the
first workday after the election , some of the Union's
organizers and its employee supporters engaged in name
calling , hurling insults and threatening with bodily harm
employees coming to work because the Union lost the
election . There is no reliable evidence in the record that this
in fact occurred . The only evidence with respect thereto
constituted multiple hearsay . It consisted of certain
supervisors and officials testifying that Ponder had told
them that certain unidentified employees had complained
to him that this had occurred , plus a written notice with
respect thereto signed by Ponder July 16. Ponder was not
called as a witness , and the alleged complainants were
never identified.
For several years prior to the election every working day
the Union's organizers were outside the plant on the
sidewalk at or near the entrance soliciting the employees to
join or support the Union . After the election, they
continued to do this , but on every occasion six or more
supervisors and guards were present at the entrance
morning, noon , and evening . Immediately after the election
the Union wished to advise the employees what steps it
planned to take with respect to the outcome of the election,
including the filing of objections and unfair labor practice
charges , and wished to seek the support of the employees in
the event that a second election should be directed. The
record establishes that as a result of this constant presence
of Respondent's officials and supervisors, the Union's
organizers were unable to communicate with the employees
at the plant entrance , because the presence of the officials,
supervisors, and guards caused the great majority of the
employees to refuse to stop , talk, or otherwise communicate
with the Union's organizers. From the outset many of them
indicated such refusal by pointing at the supervisors,
shaking their heads negatively , and thereupon entering the
plant or leaving the vicinity without engaging in any
conversation . A few of the employees actually told the
Union 's organizers that they would not talk to them in the
presence of the supervisors , whereas the majority refused to
communicate in any manner because of the presence of the
supervisors.
During the first several days or weeks after the election,
Respondent's supervisors and officials stationed themselves
HICKS-PONDER CO.
outside the plant at the entrance on a voluntary basis, as a
result of a request by Ponder at a supervisors' meeting for
volunteers to prevent a "recurrence" of the alleged
incidents. Thereafter, apparently as a result of inadequate
volunteers, Respondent established a schedule which
required some of its supervisors , officials , and guards to
stand at the entrance to the plant every day. Such schedule
was continuing at the time of the hearings herein.
Apparently each supervisor was scheduled to stand outside
the entrance approximately 1 working day each week. Most
of the supervisors greeted the employees with "hello" or
"how are you" as they approached, but otherwise did not
engage in extended conversations. Contrary to the
testimony of the Union's officials and some of the
employees called by the General Counsel, I find that
Respondent's supervisors, officials , and guards did not
physically block the Union's organizers and by that means
prevent them from contacting the employees. All of
Respondent's officials and supervisors and a number of
witnesses called by the General Counsel, whom I credit,
testified that there was no physical blocking of the Union's
organizers or attempt physically to prevent contact between
the organizers and the employees. As several witnesses,
whom I credit, testified, the scene was uniformly peaceful.
On the other hand, it was substantially undisputed that as a
result of the constant presence of the supervisors whenever
the employees were entering or leaving the plant, nearly all
of the employees refused to talk or otherwise communicate
with the Union's organizers. The record establishes that the
name calling, insults, and threats alleged to have occurred
on the first day or two of work after the election never
occurred again.
On July 23, Respondent terminated Hurtado. From the
outset of her transfer on June 6 to the training center, her
rate of progress in production was substantially below
standard. Respondent conducted a 14 weeks' training
program in its training center, during which the employee-
trainees were expected to progress in sewing production
from zero to approximately quota, in general according to a
percentage curve which Respondent had established from
experience. After satisfactory completion of the training
program, employees were transferred to the production
lines. Apparently Hurtado was unable to learn to operate a
sewing machine efficiently. On many days she produced
nothing. Juarez was Hurtado's instructor-supervisor. On
June 18 Respondent warned Hurtado that she would have
to improve. Adelsperger wanted to discharge her then but
at Ponder's request he and Melendez agreed to continue
working with Hurtado in an attempt to improve her
performance. In spite of this warning, Hurtado's progress
and production in the training center remained very
substantially below standard. By mid-July, when her
normal progress should have been in excess of 50 percent of
quota according to Respondent's established training
curve, Hurtado's production was still varying from zero to a
high of 11 percent daily. Hurtado, whom I do not credit in
this respect, testified that Respondent had promised her 3
months in which to learn the operation in the training
center. Apparently she had confused such an alleged
understanding with the fact that Respondent' s training
721
program lasted 14 weeks, during which trainees could be
and in fact were discharged if they did not make adequate
progress. Comparatively, or by any other standard,
Hurtado's progress was subnormal.
Juarez frequently warned Hurtado that her production
was subnormal. On or about July 23 Juarez repeated this
warning to Hurtado, who admitted that she could not do
any better and told Juarez to do whatever she wanted with
Hurtado. Juarez took Hurtado to the personnel office.
After Juarez informed Melendez of the facts and Hurtado's
admission, Melendez discharged her for substandard
production. Melendez informed Hurtado in reply to her
request that she could not be transferred back to her former
job. The record establishes that Respondent then and
thereafter had no jobs available other than sewing machine
operators and office personnel, and moreover had an
established policy of not transferring employees who failed
to make the grade on one operation to another.
C. Interference, Restraint, and Coercion
The allegations of interference, restraint, and coercion in
the complaint, as amended and as modified by the bill of
particulars, do not appear chronologically, but in the
interest of clarity will be so considered herein.
The complaint as amended alleged that a month or two
before July I I Respondent by Melendez made statements
to employee Baca designed to and which did give the
impression of surveillance of her union activities. As
hereinabove found, on or about March 7 Melendez
informed Baca that Respondent had received reports that
she had been bothering employees by soliciting them for
the Union when she and the employees were supposed to be
working. Baca denied that she had done so, admitting that
she knew that such was improper and against the rules.
Melendez warned Baca that if she did so in the future she
would be discharged. Respondent issued a written notice to
Baca to the same effect. Respondent did not advise Baca
who its complainants were, which is understandable.
The General Counsel contends that the foregoing
conduct constitutes giving the impression of surveillance of
union activities. Baca was a leading advocate of the Union
and knew that Respondent knew this. It is well settled that
working time is for work and therefore rules prohibiting
union solicitation during working time are valid and
violation justifies discipline, including discharge. Obviously
warning Baca was less severe, or more lenient, than other
disciplinary action, including discharge, which Respondent
could have taken. No further incidents occurred nor was
Baca given any further warnings. Patently warning an
employee for allegedly engaging in such conduct based on
legitimate complaints does not constitute surveillance in
violation of the Act. The Board has held, in a case involving
this same Respondent, that warning employees for
engaging in alleged similar misconduct, based on com-
plaints of other employees, is not a violation of the Act, but
can only be viewed as an attempt to preserve plant
discipline.4 I conclude and find that by the above actions
Respondent did not give the impression of surveillance, or
violate the Act, as alleged in the complaint.
4 Hicks Ponder Company, 168 NLRB No. 103 (1967).
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 13 Respondent gave its first speech to the
employees as part of its campaign to persuade them to vote
against the Union in the forthcoming election. The
complaint as amended contains three allegations of
interference, restraint, and coercion concerning Respon-
dent 's various speeches and published literature . Inasmuch
as such speeches and publications constituted integral parts
of Respondent 's overall campaign against the Union, they
will be considered jointly hereinafter with respect to their
overall effect rather than as separate and unrelated
incidents , with the exception of the speech by Melendez
separately alleged as promising and granting increased paid
holidays and other benefits.
The complaint alleged that on or about May 22
Respondent , by Molinar, both engaged in conduct which
gave employees the impression that their union activities
were being kept under surveillance and kept such activities
under surveillance . On May 21 Castellanos , a known union
advocate , returned to work after approximately 4 months'
maternity leave . On May 22 when she and Tarin, whose
union adherence was not known by Respondent, were
going to lunch , Molinar , Tarin's supervisor , observed their
actions and overheard their conversation concerning
visiting the home of another employee that evening to
secure her signature on a union card . Castellanos physically
pointed out the employee to Tarin. As found hereinabove,
Molinar was able to and did overhear their conversation
and observe their actions , including the identification by
Castellanos of the employee described by Tarin. The
General Counsel contends that the foregoing constituted
both keeping the employees' union activities under
surveillance and giving them the impression that such
activities were being kept under surveillance . This conver-
sation and activity occurred either inside the plant in the
hallway at the entrance or immediately outside the
entrance , at a time when substantially all of the employees
and supervisors were going to lunch . Obviously Molinar
had a right to be where she was and under the
circumstances her presence or that of any supervisor was
probable, and her overhearing and observing the employees
was both inadvertent and coincidental . There is no
contention or proof that Molinar 's presence was deliberate.
Under the circumstances , it can hardly be characterized as
surveillance or giving the impression of surveillance. If
employees elect to engage in overt union activities in places
where they know , or should know , that supervisors are apt
to be and have a right to be present, they run the risk and
can hardly be restrained or coerced by the to-be-expected
presence of a supervisor , nor can such be considered as
giving the impression of surveillance. I conclude and find
that , although Molinar did overhear the conversation and
subsequently took action with respect thereto as discussed
hereinafter in connection with the discharges of Castellanos
and Tarin, the General Counsel has failed to sustain his
burden of proving that Respondent , by Molinar, kept the
union activities of employees under surveillance or gave
employees the impression thereof , as alleged in the
complaint.
The complaint alleged that on or about June 4 Melendez
made statements to an employee which gave the impression
that her union activity was being kept under surveillance.
This concerned the incident on June 4 when for the second
day in succession Ortiz was called to the personnel office
and chastized for excessive talking , during which interview
Melendez also advised her that Respondent had been
informed by an employee that Ortiz had been soliciting a
group of employees for the Union in the ladies ' restroom at
a time when both she and other employees should have
been working . Although Ortiz denied having discussed the
Union in the ladies ' restroom with other employees during
working hours , she admitted that she knew that such
conduct was against the rules . Respondent admittedly
knew that Ortiz was a member of the Union's organizing
committee , and Ortiz was aware of Respondent 's knowl-
edge . Again, as in the case of Baca , Respondent was merely
criticizing and warning an employee for reportedly
engaging in union solicitation at a time when she and the
employees were supposed to be working , which can only be
viewed as an attempt to maintain plant discipline. I
conclude and find that by the above acts Respondent did
not give the impression of surveillance of union activity, or
violate the Act, as alleged in the complaint.
The complaint alleged that on or about June 5 Melendez
promised and granted to Respondent 's employees in-
creased paid holidays and other benefits to induce them to
refrain from supporting the Union. During June 4 and 5
Melendez gave a series of identical speeches to all of the
employees , which she characterized as her economic
speech. This was Respondent 's second speech in its
campaign against the Union, the first having been delivered
by Ponder May 13. The general tenor of Melendez' speech
to the employees was that they were economically as well or
better off without a union than the employees in other
plants in El Paso which were unionized . However , the fact
that the employees in such union plants received one more
paid holiday annually than Respondent's employees was
brought up during her speech . As a result Melendez asked
the employees to vote by a show of hands whether they
preferred an additional paid holiday to the annual picnic
which Respondent held on a Saturday, a day when the
employees did not work. As found above, a substantial
majority of the employees voted in favor of the additional
paid holiday at those meetings at which the employees who
testified were present , which is readily understandable in
view of its substantially greater monetary significance.
Contrary to the testimony of Melendez, whom I do not
credit in that respect, the employees understood that they
were being promised an additional annual paid holiday if
they voted for it. It is, of course , well settled that promising
employees additional benefits to induce them to refrain
from supporting their labor organization is a violation of
the Act.5 It will be recalled that in the opening speech of
Respondent 's campaign , Ponder told the employees that
Respondent would continue to provide everything which
went to make up a good job so that they would never want a
union , and was going to do everything within its power to
make improvements , including improved earnings. I
conclude and find that Respondent , by promising its
employees an additional paid holiday to induce them to
refrain from supporting the Union , interfered with,
5 N.L.R.B . v. Exchange Parts Company, 375 U.S. 405 ( 1964).
HICKS-PONDER CO. 723
restrained, and coerced them in violation of Section 8(axl)
of the Act.
On June 24 Respondent distributed a letter by Ponder to
all of the employees. As noted above with respect to
Respondent's various speeches and publications, the
complaint contains three separate allegations that such
communications interfered with , restrained , and coerced its
employees by advising them that Respondent would not
negotiate with the Union, agree to any of its proposals, or
agree to any contract if it were elected, that as a result a
strike would ensue, that the employees would be prejudiced
and hurt thereby, and that they would be terminated for
engaging in such strike. Said allegations and Respondent's
various speeches and publications are here considered
jointly inasmuch as the latter constituted integral parts of
Respondent's overall campaign against the Union, patently
had a cumulative affect on the employees, and thus, as also
urged by counsel for Respondent, should be viewed overall
rather than as separate and unrelated incidents. With the
exception of Melendez' "economic" speech of June 4,
considered above, they consisted of Ponder's speech of
May 13, Ponder's letter to all employees June 24, speeches
by Melendez to all of the employees on July 9, a six-page
letter signed by Ponder and Morris, chairman of the board
of Blue Bell, and a six-page pamphlet in question and
answer form distributed to all employees on July 9, 2 days
before the election, and speeches by Ponder, Morris, and
Williams to all of the employees on July 10, the day before
the election.
Viewed overall, Respondent's speeches and publications
stressed the futility of selecting the Union as a bargaining
agent, stated that Respondent was not required to and
would not agree to any of the Union's proposals during
negotiations and hence no benefits would derive from
electing the Union, that as a result the Union and the
employees would have no alternative but a strike, that as a
result of such strike the employees would be seriously
harmed by violence, assaults, loss of wages, loss of homes,
automobiles and other possessions bought on credit, and
inability to secure employment elsewhere, that Respondent
would not yield to the demands of such a strike but would
continue to operate by hiring permanent replacements, and
that as a result when the strike was over the employees
could not return and would have lost their jobs.
Respondent's position in essence is that its speeches and
publications constituted an overall educational program,
consisting primarily of accurate predictions of the probable
consequences of unionization, protected by the free speech
guarantee of the First Amendment of the Constitution and
by Section 8(c) of the Act; i.e., views, argument, or opinion
sans threats or promises of benefit. The Supreme Court has
recently delineated the criteria applicable to distinguishing
permitted employer predictions from proscribed threats,
pointing out, inter alia, that an employer "may even make a
prediction as to the precise effects he believes unionization
will have on his company. In such a case, however, the
prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his control or
to convey a management decision already arrived at ..."
Among other things , the Court pointed out that the
employer therein "had no support for his basic assumption
that the union, which had not yet even presented any
demands, would have to strike to be heard ... " The Court
stated that the Board has the "duty to focus on the question
`what did the speaker intend and the listener understand,'
..." and the Court further observed that an employer "can
easily make his views known without engaging in
`brinkmanship' when it becomes all too easy to `overstep
and tumble into the brink.' . . . At the least he can avoid
coercive speech simply by avoiding conscious overstate-
ments he has reason to believe will mislead his
employees." 6
The findings hereinabove set forth the portions of
Respondent 's various speeches and publications pertinent
to the allegations of the complaint . Thus in the first speech
on May 13, Ponder advised the employees that Respondent
was going to do everything legally possible to keep the
Union out and would continue to provide every improve-
ment which went to make up a good job, including
improved earnings , so that they would not need or want the
Union. He then warned the employees that unions led to
strikes, the Union would cause them serious harm, and
characterized such results as "this horror." He told the
employees that the Union's promises were false and that
such benefits would not automatically occur if the Union
were elected, thus laying the groundwork for later
statements that Respondent would not agree to any of the
Union's demands. On June 4 Melendez tried to demon-
strate to the employees why they were better off
economically than the employees working in El Paso union
plants, and when the fact that such plants had an additional
annual paid holiday was brought up, promised the
employees an additional paid holiday . Respondent 's letter
of June 24, after urging the employees to vote against the
Union , warned that they and their families would be hurt
by electing the Union. It stated that Respondent had shown
them how it had better wages and benefits than the union
factories in El Paso , an obvious reference to the promise of
benefits on June 4. It warned them that the possible cost of
strikes was lost wages , loss of property because of no money
to pay the bills, and the very real possibility of losing their
jobs.
On July 9, 2 days before the election, in the six-page
letter, the six-page question and answer pamphlet, and
Melendez' speech to all of the employees , Respondent
substantially accelerated the crescendo of its warnings and
ominous predictions . The letter stressed the futility of
selecting the Union and the serious harm that would
probably result to the employees and their families if they
did so . It underscored that electing the Union absolutely
would not automatically bring about any wage raises or
other benefits , that Respondent could not be forced to do
anything which it did not choose to do, that the result
would be a strike , which would cause the employees
trouble , discord , violence and misery , loss of wages, unpaid
debts on homes and automobiles , and the ultimate loss of
their jobs. It advised the employees that if such strike
occurred , Respondent would fill their jobs and when it
ended those whose jobs were filled while they were striking
6 N.L.R. B. v. Gissel Packing Co., 395 U.S. 375 (1969).
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would automatically lose their right to get their jobs back. It
asked the employees to wait for the new owners to make
improvements , including increased wages, which they could
count on without having to pay union dues . It pointed out
that instead of the job security promised by the Union,
many union employees wound up without any jobs. It
finally underscored that the employees stood to lose if the
Union got in and stood to gain by keeping it out.
The six-page question and answer pamphlet developed
the same theme , pointing out the futility of electing the
Union because that would not result in any wage raises
because only Respondent decided what the wages would
be, and the Union could not make it do anything it did not
want to do. It noted that as a result the Union would
probably have to call a strike , which in turn would result in
lost wages , the possible loss of homes , cars, and furniture,
and the ultimate loss of their jobs because Respondent had
the right to and would replace the strikers by hiring other
employees . It pointed , out that there would not be a
contract unless Respondent and the Union reached
agreement and in many cases no such agreement was ever
reached , It stated that with a union contract the employees
would have less job security rather than more.
On the same day Melendez delivered a series of identical
speeches to all of the employees . Unlike Respondent 's other
speeches and publications , Respondent had no written
record of Melendez ' speech . Perhaps coincidentally, it
contained more serious and ominous predictions than any
of the other speeches and publications , and included
several misrepresentations . The employees viewed her as
one of Respondent's principal spokesmen , because in
addition to her own speeches shelinterpre 'ted into Spanish
substantially all of the speeches delivered by Respondent's
other officials . In general she stressed the same theme: the
futility of, and serious harm that would result from , electing
the Union . After reminding the employees of her economic
speech on June 4 , she again pointed out the great cost that
the Union would represent to the employees , amounting to
more than $28,000 a year, with which the Union's
International representative could buy himself a new car.
She attempted to explain the legal rights of the Union,
Respondent , and the employees under the Act, stating that
the Union had the right to meet and negotiate with
Respondent , which meant that it could ask, argue, and
strive to persuade Respondent to grant benefits, that
Respondent had the right to and could say no to all such
requests and was not required to make any concessions,
and that the employees had the right to strike or not strike.
She pointed out that in the event of such an economic
strike , Respondent had the right to continue to operate its
plant and replace all of the strikers with other employees, in
which event they would lose their jobs and have no right to
return to work after the strike was over as long as the
replacements remained employed . She described the
number of strikes which the Union had called in other
plants in Texas and Louisiana, and stressed the extreme
hardships resulting to the employees as a result thereof,
including violence , beatings, stripping of women , bombings
and great financial losses, including wages, homes,
automobiles and other possessions . She pointed out that
strikers would not receive unemployment compensation.
She misrepresented that the Union would not grant strike
benefits to all of its striking members but only to some of its
favorites . She told the employees that the Union 's parent
organization , whom she did not identify , was urging the
U.S. Government to close the Mexican border to all green
card holders , Mexican residents who worked in the United
States. Many of Respondent 's employees were green card
holders. In fact the Union was not opposed to such green
card holders . Unlike the other speeches and publications,
Melendez warned the employees that she believed that as
strikers they would be unable to secure employment with
other employers in El Paso.
On July 10, the day before the election , Williams, Ponder,
and Morris made speeches to all of the employees.
Williams' short speech stressed the importance of the
employees ' decision in the election to them and their
families with respect to their jobs and future . He stated that
no union could make Respondent do more than it had, and
asked them to give Blue Bell a chance to bring about the
many improvements which it planned for them without
union interference . Ponder told the employees that the
Union had been trying to get into the plant for 25 years and
had made many false promises to them . He pointed out that
electing a union would not bring about higher wages and
benefits but on the contrary would result in their being
harmed . He suggested that the 50 or 60 employees who
favored the Union resign and go to work in a union plant.
(The General Counsel 's suggestion that this constituted an
admission of surveillance is without merit , inasmuch as the
Union had furnished Respondent a list of more than 50
employees designated as members of the Union 's organiz-
ing committee). He again advised the employees that they
should not believe all of the Union 's lies and promises
which it could not fulfill . Morris briefly advised the
employees that as Blue Bell's chief executive he was in total
agreement with everything that Williams and Ponder had
said.
Viewed in an overall context , it seems clear and I find
that Respondent's speeches and publications exceeded
permissible predictions and including warnings and threats
in violation of the Act , as well as promises of benefit.
(Although not alleged in the complaint , with the exception
of Melendez' speech of June 5, Respondent 's speeches and
publications included promises of benefit , which are
undisputed inasmuch as they appear in the written copies of
the speeches and publications produced and offered in
evidence by Respondent). Respondent 's speeches and
publications stressed the futility of electing the Union
because Respondent intended to refuse any and all of its
demands or requests and as a result a strike was almost
inevitable, and threatened the employees and their families
with serious harm therefrom , including violence , injury,
and assault , loss of wages , the loss of homes , automobiles,
and other possessions , that the Union would not pay strike
benefits to many of the strikers, that the strikers would be
unable to secure employment elsewhere in El Paso, and that
the strikers would ultimately lose their jobs permanently
because Respondent would employ replacements and the
strikers would be unable to return to their jobs after the
strike was over . Such warnings and threats clearly exceed
the bounds of permissible predictions delineated by the
HICKS-PONDER CO. 725
Supreme Court in Gissel, supra. Moreover, the Board and
the courts of appeals have frequently held similar speeches
and publications, predicting the futility of electing a union
because the employer would not agree to any of its
demands, the inevitability of strikes, that employees would
be seriously harmed thereby, and that they would lose their
jobs as a result, in violation of the Act.7
In Ideal Baking Company and Kellwood 8 the Board
found substantially similar speeches to constitute threats in
violation of the Act. In a recent decision, the Court of
Appeals for the Fifth Circuit affirmed in full the Board's
finding in a proceeding involving this same Respondent at
another plant that a similar speech, but containing fewer
and less drastic threats than found herein, violated Section
8(a)(1) of the Act.9
Although Respondent's letter of July 9 to the employees
advised them that if they struck Respondent had a right to
fill their jobs and when the strike was over those whose jobs
were filled while striking automatically lost their right to
return to work or get their jobs back, Respondent's other
statements , including the English version of that letter, were
to the effect that economic strikers who were
"permanently" replaced lost their jobs and could not return
to work when the strike ended, apparently in the belief that
this represented a correct statement of the law. While this
may have at one time been legally correct, it was not at the
time of such statements , which were made after the
decisions of the Supreme Court in Fleetwood Trailer and
Great Dane Trailers and their must now be considered well
settled that employees engaging in an elucidation by the
Board in Laidlaw.10 Since those decisions it economic
strike, upon their unconditional and continuing application
for reinstatement, retain the status of employees and are
entitled to reinstatement as vacancies occur, absent
substantial economic or business justification for refusal to
reinstate them with respect to which the burden of proof is
upon the employer, and refusal to reinstate them without
such justification constitutes an act so inherently destruc-
tive of employee rights as to be an unfair labor practice
without reference to intent or improper motivation.
Since those decisions it is evident that economic strikers
who have been replaced do not lose their right to
reinstatement or reemployment when the strike had ended,
but instead must be recalled as vacancies occur absent
substantial business justifications, which right Respondent
not only failed to explain but misstated. Respondent's
proof established that it has a constant and substantial
employee turnover as the result of resignations and
discharges for cause. As the Board pointed out in Laidlaw:
"As economic strikers . . . they remained employees who
had offered to abandon the strike and who were available
to fill openings as such arose . . . . This right of
reinstatement continued to exist so long as the strikers had
not abandoned the employ of Respondent for other
substantial and equivalent employment . Moreover, having
signified their intent to return by their unconditional
application for reinstatement and by their continuing
presence , it was incumbent on Respondent to seek them out
as positions , were vacated." Since the decision of the.
Supreme Court in Fleetwood, supra, the Court of Appeals
for the Sixth Circuit has pointed out that telling employees
that if they engage in an economic strike they can be
permanently replaced is legally incorrect and a violation of
Section 8(a)(1) of the Act. 11
The complaint alleged that by its publications and
speeches , Respondent told its employees that it would not
negotiate , agree to any of the proposals of the Union, or
agree to any collective-bargaining contract with the Union
if it were elected , that as a result a strike would ensue, that
the employees would be prejudiced or hurt thereby, and
that they would be terminated for engaging in such strike. I
am satisfied and find that Respondent , by its entire
program of speeches and publications viewed collectively,
warned and threatened its employees that the election of
the Union would be futile ; that Respondent would not
agree to any of the Union 's demands or proposals ; that as a
result a strike would ensue which would seriously harm the
employees by resulting in violence , assaults, and fights, the
loss of wages , and the concomitant loss of homes,
automobiles , and other possessions; that they would be
unable to secure employment elsewhere in El Paso; and
that Respondent would employ permanent replacements as
a result of which they would lose their right to return to
work or get their jobs back when the strike was over, and
promised its employees additional benefits if they voted
against the Union , thereby interfering with , restraining, and
coercing its employees in violation of Section 8(a)(1) of the
Act.
The complaint as amended alleged that Respondent by
Melendez on or about July 11 made statements to an
employee designed to give and which gave the impression
that her union activities were being kept under surveillance.
This allegation concerned the incident when Melendez
informed Gomez , a known union advocate , that two
employees had reported that she had made statements in
the plant that Williams was calling Mexicans "S.O.B.'s."
After Gomez denied having made any such statement or
having heard Williams make any such statement in the
plant , Melendez warned her that if she did so in the future it
was a violation of the rules and she would be discharged.
For the same reasons as heretofore discussed in connection
with the Baca and Ortiz incidents , I conclude and find that
Respondent was properly attempting to maintain plant
discipline, and that by such actions it did not give the
impression of engaging in surveillance of its employees'
union activities , or violate the Act.
The complaint as amended and modified by the bill of
particulars alleged that Respondent from on or about July
7 J. P. Stevens & Co. v. N.L. R.B.,: 3801 F.2di 292 (C.A.2, 1967),,cert.
denied 389 U.S. 1005; Serv-Air Inc. v. N.L.R.B. 395 F.2d 557 (C.A. 10.
1968); Ideal Baking Company of Tennessee, Inc., 143 NLRB 546 (1963);
Hortex Manufacturing Company, Inc., 147 NLRB 1151 (1964); Kawneer
Company, 164 NLRB 983 (1967); Block-Southland Sportswear, Inc., 170
NLRB No. 101 (1968); Winfield Mfg. Co., Inc., 173 NLRB No. 103 (1968):
F. W. Woolworth Company, 173 NLRB No. 173 (1968): and Kellwood Co.,
175 NLRB No. 79 (1969).
A Fn. 7, supra.
9 Hicks-Ponder Company v. N.L.R.B., 424 F.2d,538 (C.A. 5, 1970),
affg . 174 NLRB No. 12 (1969).
1° N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375 (1967)j.;N.L.R.B. V.
Great Dane Trailers, 388 U.S. 26 (1967); and Laidlaw Corp., 171 NLRB No.
175 (1968).
11 Dayton Food Fair Stores, Inc. v. N. L. R. B., 399' F.2d153 (C.A. 6,
1968).
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14 to 29 in and about the plant and its entrance engaged in
surveillance of the employees' union activities and conduct
which gave the employees the impression that their union
activities were being kept under surveillance. These
allegations referred to the continued presence of Respon-
dent's supervisors, officials, and guards at the entrance to
the plant every morning, noon, and evening when the
employees were entering or leaving the plant continuously
from on or about July 14 or 17 to and including the date of
the hearing. As hereinabove found, Respondent, allegedly
because it had received reports that the Union' s organizers
and employee sympathizers had hurled insults at and
threatened with harm employees coming to work the first
morning or two after the election because they had voted
against the Union, ordered from 6 to 12 of its supervisors,
officials, and guards to stand at the plant entrance for one-
half hour every morning, noon, and evening according to a
fixed schedule, which continued to and including the date
of the hearings. The, record contains no reliable or
substantial proof that such misconduct by the Union's
organizers or employees ever occurred, or that if it did it
was ever reported to Respondent, Respondent's proof
consisting of nothing but multiple hearsay.
The record establishes that by the presence of from 6 to
12 supervisors, officials, and guards every working day,
Respondent effectively prevented the employees from
contacting the Union's representatives, who appeared at
the entrance daily, and them from contacting the
employees. For obvious reasons, many of the employees
were afraid or unwilling to contact the Union's organizers
in the presence of their supervisors and officials, and thus
Respondent prevented its employees from engaging in
rights and activities guaranteed by the Act. Assuming
arguendo that the alleged misconduct by the Union's
organizers and employee sympathizers did occur on the
first day or so after the election, and that Respondent's
activity in reaction thereto might have had some color of
right at its inception, indefinite continuance for a period of
more than 4 months every morning, noon, and evening,
without any repetition of such misconduct, thereby
effectively preventing the employees from contacting the
Union, can hardly be justified. Respondent is not entitled
to take upon itself enforcement of the law. If such
misconduct occurred or was repeated, Respondent should
have reported it to the proper authorities, including the
police department, who are empowered to take the
appropriate steps to prevent its repetition and arrest and
punish any such offenders. Respondent could have
effectively prevented any recurrence by stationing one of its
guards at the entrance to report any such incidents to
Respondent and/or the proper authorities.
The Board and the courts, in the development of the legal
concepts which permit an employer to assemble and
address his employees in "captive audiences" and prohibit
unions from engaging in organizational activities in and
upon an employer's premises, have frequently emphasized
the concomitant right of unions to solicit employees at
plant entrances on public property. Frequently this is the
only place where a union can effectively solicit support
from a large number of employees, many of whom at least
initially may be disinclined to attend union-sponsored
meetings. I conclude and find that Respondent by such
conduct kept the union activities of its employees under
surveillance, gave its employees the impression that their
union activities were being kept under surveillance, and
effectively prevented such activities, thereby interfering
with, restraining, and coercing its employees in violation of
Section 8(a)(1) of the Act.12
D. Discrimination in Hire, Tenure, Terms, or
Conditions of Employment
1. Tarin and Castellanos
The complaint alleged that on or about May 22
Respondent discharged Tarin, and on or about May 23
discharged Castellanos, because of their union activities.
Their discharges are considered together because, as herein
found, they arose out of the same incident. As hereinabove
found, Castellanos returned to her job on May 21 after
approximately 4 months' maternity leave. She had worked
for Respondent approximately 6 years. Respondent knew
that she was an advocate of the Union and a member of its
organizing committee, her name having been included in
the list furnished to Respondent. On the other hand, before
May 22 Respondent did not know that Tarin was a union
advocate. She had been employed for about 15 months. On
May 22 when Tarin and Castellanos were going to lunch
together, Molinar, Tarin's supervisor, who knew that
Castellanos was an active member of the Union, overheard
their conversation and observed their activities at or near
the plant entrance concerning visiting another employee
that evening for the purpose of securing her signature to a
union card. Although I have found that this occurred
inadvertently, Respondent for the first time learned of
Tarin's union activities. That same afternoon Molinar had
Tarin discharged and the following day Respondent
discharged Castellanos. The timing is, of course, significant,
although conceivably their discharges could have been
coincidental. Respondent knew of the pendency of the
election and on May 13 had advised its employees in
Ponder's speech that it was going to do everything legally
possible to keep the Union out.
Before going to lunch Tarin had been assigned some
repairs by Martinez, her new forelady. Tarin repaired
approximately 1 dozen of the 18 dark green slacks with the
wrong color thread, a light blue. Immediately after lunch
and hearing and observing the above conversation and
activities between Tarin and Castellanos, Molinar called
Tarin's attention to her mistake. Tarin admitted her
mistake, but said she thought it was not significant because
it would not show when the slacks were worn. Although
Tarin immediately corrected her error by redoing the
repairs, Molinar reported the matter to Hamilton and
Melendez and had Tarin discharged. During the discharge
interview, Molinar and Martinez never informed Melendez
that Tarin had corrected her mistake by redoing the repairs.
Hamilton was not present. Admittedly Tarin had been
previously warned twice about her poor quality; i.e.,
12 N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d 614 (C.A. 6,
1963); and Bauer Welding, Inc., 154 NLRB 954 (1965).
HICKS-PONDER CO. 727
excessive repairs. Although Molinar and Martinez testified
that Tarin had been guilty of other misconduct the same
day, allegedly consisting of placing some unrepaired slacks
on a work bench where only repaired slacks were to be
placed , and attaching bundle tickets to her production
sheet indicating completed work which she had not
completed , neither of these allegations were called to
Tarm's attention or discussed with Melendez during the
discharge interview. Respondent had prepared Tarm's two
checks and termination notice, which she refused to sign,
before her discharge interview.
That same day Respondent lowered Castellanos ' tandem
sewing machines as a result of her complaint the prior day
that they were too high for her to operate , which admittedly
was the case . That afternoon Castellanos made five or six
complaints to Meza that her sewing machines were
operating improperly , resulting in five or six calls to the
mechanic and Meza complaining to Adelsperger about
Castellanos' constant complaining . The following noon,
May 23, Melendez called Castellanos to the office and
discharged her, allegedly because she was physically unable
to perform her work , as stated in her termination notice.
Meza, Adelsperger , and Hamilton also were present at this
discharge interview . As in Tarin 's case, Castellanos' check
and termination notice had been prepared before the
interview. Respondent's witnesses , whom I do not credit in
that respect , testified that during the 2 days before
Castellanos ' discharge , she complained about her back
hurling. Castellanos , whom I credit , testified that her back
did not hurt and that she had not complained about it
hurling during that time . In her pretrial affidavit and
testimony before the Texas Employment Commission, as
well as her testimony in this proceeding, Castellanos
uniformly denied that her back hurt or that she complained
about it after she returned to work May 21. It seems clear
from the record and I find that Meza 's complaints to
Adelsperger about Castellanos concerned her complaining
about the condition of her sewing machines and not about
her back The parties litigated the issue of whether
Castellanos complained about her back hurting at great
length , and the record contains numerous exhibits includ-
ing many reports and certificates from Dr . Palafox,
Castellanos ' physician . Respondent contends that because
Dr. Palafox found evidence of some slight pain and
discomfort in some of his examinations , caused by
hyperextension (bending back) during the examination,
Castellanos ' testimony that her back did not hurt and that
she did not complain about it while working the two days
cannot be credited.
Castellanos injured her back in March 1968 while
working for Respondent . The injury was a ruptured
vertebrae disc , also called a traumatic lumbar discogenic
syndrome , for which she filed a claim and was reimbursed
by Respondent 's insurance carrier . Upon release by Dr.
Palafox , she returned to work in October 1968 and
continued to work without difficulty or complaint. On
March 28 , during maternity leave and after the birth of her
child, Dr Palafox stated in a "final report" to the insurance
carrier that Castellanos continued to have some pain and
discomfort in her lower back, but was advised that she
could return to work . Shortly before April 18 Castellanos
requested an extension of I month on her maternity leave,
and Respondent requested her to secure a doctor's
certificate . Castellanos furnished Respondent with such
certificate from Dr . Palafox dated April 18 which stated
that she had been advised to stay off work until May 18. Dr.
Palafox reported that Castellanos continued to have
marked weakness in her back , that hyperextension was
slightly painful and limited , and that her problem seemed to
be mostly weakness of her muscles . On May 16, Dr. Palafox
examined Castellanos again , reported that hyperextension
was slightly painful and limited , that she continued to have
some pain and discomfort in her lower back , and that she
had been advised to return to work on May 21 on a trial
basis. He signed a certificate which Castellanos delivered to
Melendez May 21 stating that Castellanos had been
advised to return to work that day and to feel free to call his
office if additional information was needed.
During the discharge interview , Melendez informed
Castellanos that Respondent had decided to discharge her
because she was physically unable to perform her work.
Although Respondent hadjust received the certificate from
Dr. Palafox that Castellanos was physically able to return
to work , it made no attempt to contact him with respect to
its contrary medical conclusion , although he had suggested
Respondent do so if it had any questions . Castellanos, after
denying that her back hurt or that she had complained
about it, asked Melendez how Respondent could conclude
in 2 days that Castellanos was physically unable to perform
her work after she had returned with a certificate from her
doctor stating that she was able to do work . Melendez'
answer was because Castellanos was constantly complain-
ing to her supervisor about things a normal operator would
not complain about. Castellanos then informed Melendez
that she had been instructed by her previous supervisor to
call deficiencies in the sewing machines to her attention so
that Castellanos would not be charged for repairs caused by
such defects . Meza then said that Castellanos had more
repairs than the other two operators , who were new
trainees , combined . Inasmuch as Castellanos had been
back at work under Meza 's supervision only 2 days, during
which time her sewing machines were not operating
properly and according to Respondent 's other witnesses
Castellanos produced little or nothing , it is apparent that
she could not have had many if any repairs.
After her discharge , Castellanos visited Dr . Palafox on
May 30 at her attorney 's request and gave him Respon-
dent's termination notice , which stated that she had been
discharged because she was physically unable to work. Dr.
Palafox' report on June 3 stated that Castellanos had some
slight tenderness and pain in her back upon hyperextension
and lateral flexion. It further stated that his tests revealed
that she had improved since her examination May 16 when
he had cleared her to return to work , disclosing substantial-
ly greater quadriceps strength and that her neurologic
condition was normal . Dr. Palafox concluded that Castella-
nos was "probably unable to do heavy physical work , if that
is what is required of her." Patently this was based on the
termination notice , which stated that she was physically
unable to perform the work . It is quite clear from the
doctor's objective examinations and report that on May 30
Castellanos was better than when he had authorized her
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work on May 21.On June 18 Dr. Palafox reported
substantially the same results from another examination,
stating that hyperextension and right and left lateral flexion
were slightly painful and limited.
Dr. Palafox , clearly qualified as an expert , testified that
in his opinion Castellanos was physically able to return to
work May 21 and thereafter . He testified that he had
treated hundreds of similar cases and had returned to work
persons with similar injuries in nearly every case. He
pointed out that such back conditions were hereditary,
some persons continued to experience some pain but
learned to live with it , and substantially all of them were
able to return to their normal work , provided it did not
involve heavy physical work . Admittedly Castellanos' work
did not . Respondent 's contention that Castellanos ' testimo-
ny, that she did not complain about her back hurting while
working, cannot be credited , because Dr. Palafox found
slight pain as a result of hyperextension during examina-
tion , is without merit . The fact that she experienced slight
pain during hyperextension does not refute her testimony
that she did not experience pain while working or complain
about it . Even if Castellanos had complained about her
back hurting, this would not establish or warrant Respon-
dent 's conclusion that she was physically unable to perform
her work contrary to her doctor's certificate . The record
establishes and I find that on May 21 and thereafter
Castellanos was physically able to perform her work, and
that Respondent 's stated reason for her discharge was
unfounded. Respondent could readily have ascertained
whether Castellanos was physically able to work by
contacting her physician , which he had in fact suggested.
Under all of the circumstances , I am satisfied and find
that Respondent 's reasons for discharging Tarin and
Castellanos were pretexts , that the real reason was their
union activities , ascertained with respect to Tarin the same
day, and that Respondent seized upon Tarin's mistake and
Castellanos ' complaints about her equipment as an
opportunity to rid itself of two known union adherents
shortly before the election . In both discharges Respondent
had prepared the checks and termination slips before
hearing from the employees . Although Tarin 's case is not as
clear cut, because admittedly she had been twice warned
about poor quality and had used the wrong color thread in
making the repairs, the fact that her immediate correction
of her mistake was not called to Melendez' attention during
the discharge interview , the juxtaposition of the two
discharges promptly after Respondent had learned of the
dischargees' union activities , and the fact that Respondent's
stated reason for discharging Castellanos was without merit
and contrary to the facts , convince me that the same
reason , namely, their union activities , motivated Respon-
dent in discharging both . I conclude and find that
Respondent discharged Tarin and Castellanos on May 22
and 23, respectively , because of their union activities,
thereby discriminating against them in violation of Section
8(a)(3) and ( 1) of the Act.
2. Ortiz and Hurtado
The complaint alleged that on or about June 5
Respondent transferred Ortiz and Hurtado from their then
jobs to less desirable jobs because of their union activities.
Respondent was fully aware of Ortiz ' union activities, but
was unaware of Hurtado 's union activities . Ortiz was
employed as a pickup girl and Hurtado as a quality control
inspector. On June 3 Gallardo , Ortiz' supervisor , brought
her to the office because she had engaged in unnecessary
excessive talking and had yelled at Gallardo after she had
ordered Ortiz to return to her work station . Gallardo had
previously warned Ortiz against excessive talking , the last
time only 4 days before . During the office interview Ortiz
insisted that she had not been talking , but had been waiting
for two other employees to finish talking so that she could
talk business with one of them , an inspector . The record
establishes that Ortiz' duties did not require her to talk with
inspectors , and she had previously been warned not to do
so. Ortiz also claimed that she had been talking to
inspectors because she was performing part of Gallardo's
duties, which the latter , whom I credit, vigorously denied.
The morning of the same day, unknown to Melendez at the
time of this interview , Daniel had observed Ortiz talking
with Hurtado for 10 consecutive minutes during which
neither was working, and when he returned twice later the
same morning again observed them talking and not
working . Daniel reported these facts to Hamilton and
Melendez later.
As a result Ortiz was again summoned to the office the
following morning , particularly since she had insisted at the
first interview that her talking was entirely business, not
excessive , and Gallardo had been picking on her. After
Daniel confronted Ortiz with those facts , she admitted
talking with Hurtado for 10 minutes and twice later the
same morning, but insisted that they were talking business.
Respondent reminded her that her duties did not require
any conversations with inspectors . Melendez also warned
Ortiz about spending time soliciting employees for the
Union in the ladies' restroom when she and they should be
working , as had been reported to Melendez . Melendez
reminded Ortiz that the previous day she had insisted that
her talking was always about business and that Gallardo
was only picking on her.
Respondent then had Hurtado brought to the office.
When confronted by Daniel's statement , she admitted that
she and Ortiz had not been discussing business and
frequently engaged in excessive talking because of lack of
supervision . The record establishes that at the time Ortiz
and Hurtado were not subject to much supervision because
Hurtado's supervisor worked on the first floor and
Gallardo was busy supervising the line . Daniel also told
Hurtado that he had observed her talking to another
employee on the third floor when the latter should have
been working , which Hurtado admitted. Having ascer-
tained the facts from Hurtado, Melendez informed her that
Respondent was going to transfer her and Ortiz to jobs in
its training center where they would have more supervision
in order to prevent their excessive talking . These jobs were
training or learning to be sewing machine operators, which
the record establishes were less desirable jobs than those
then held by Hurtado and Ortiz . Hurtado protested , stating
that she thought that she would be unable to learn to sew,
and asked for another chance , which Melendez and
Hamilton refused . As a result , Hurtado complained to
Ponder , who refused to reverse Hamilton and Melendez'
HICKS-PONDER CO.
decision after ascertaining the facts. However, because
Hurtado had been employed by Respondent for approxi-
mately 17 years, Ponder instructed Hamilton and Melendez
to give her every opportunity to make the grade in the
training center. Melendez then informed Ortiz that because
of her excessive talking she was being transferred to the
training center in order to have adequate supervision.
On June 6 Respondent transferred both Ortiz and
Hurtado to the training center The record establishes that
Ortiz and Hurtado had both engaged in excessive talking,
concerning which they had previously been warned by their
respective supervisors, and that such talking was unrelated
to and not required by their work duties. While Respondent
permitted casual brief conversations, it prohibited excessive
talking which interfered with an employee's work. Respon-
dent was unaware of any union activities by Hurtado, and
had known for years that Ortiz was active in the Union A
preponderance of the reliable, probative, and substantial
evidence in the entire record convinces me, and I find, that
the General Counsel has failed to sustain his burden of
proving that Respondent discriminatorily transferred Ortiz
and Hurtado to less desirable positions because of their
union activities, as alleged in the complaint.
The complaint alleged that on or about July 23
Respondent discharged Hurtado because of her union
activities. As found above, after Hurtado's transfer June 6
to the training center, her rate of progress in production
was substantially below standard, so much so that on many
days she produced nothing. Juarez warned her of this
several times. On June 18 Melendez and Adelsperger
warned Hurtado that she would have to improve She was
kept on at Ponder's request. Nevertheless her production
did not improve, remaining substantially below standard.
In mid-July her production varied from zero to 11 percent
when normal progress would exceed 50 percent. She finally
conceded to Juarez that she could do no better. Upon
receiving this information, Melendez terminated Hurtado
July 23. It is quite clear and I find that Respondent had
good cause for discharging Hurtado. A preponderance of
the reliable, probative, and substantial evidence in the
entire record convinces me, and I find, that the General
Counsel has failed to sustain his burden of proving that
Hurtado was discriminatorily discharged because of her
union activities, as alleged in the complaint.
IV. REPORT ON OBJECTIONS
As noted above, the Regional Director consolidated for
hearing with the complaint herein the Union's objections to
conduct affecting the results of the election, limited to the
period between March 24 and July 11, which are
substantially encompassed within the allegations of the
complaint except one; namely, that Respondent had
informed the employees that it knew the names of all
employees who had signed for the Union. The record
contains no evidence that Respondent informed its
employees that it knew the names of all employees who had
signed for the Union. The objections included an alleged
729
discriminatory discharge of a union member before the
election.
Based on the above findings of fact and the entire record
herein , I conclude and find that the objections consisting of
the allegations of interference , restraint , and coercion in the
complaint , as amended , dealing respectively with distribut-
ing publications and making oral statements advising
employees that if the Union won the election Respondent
would not negotiate, agree to any collective-bargaining
agreement or agree to any of the Union 's proposals, that a
strike would result, that they would be prejudiced and hurt
thereby, and that they would be terminated for engaging in
a strike , and the allegation of discriminatory discharge of a
union member have been established , and that Respondent
thereby engaged in conduct affecting the results of the
election . The Regional Director 's order directing the
consolidation of the hearings on the objections and the
complaint further directed that thereafter Case
28-RC-1901 be transferred to and continued before the
Board . Having sustained the aforesaid objections, I
recommend that the Board set aside the election and
remand the representation proceedings to the Regional
Director for the purpose of conducting a new election at
such time as he deems the circumstances will permit the
free choice of a bargaining representative.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization , within the meaning
of the Act.
2. By interfering with , restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
3. By discharging Tarin and Castellanos because of
their union activities , Respondent engaged in discrinuna-
tion to discourage membership in the Union, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not, as alleged in the complaint,
discriminated against its employees , Ortiz and Hurtado,
within the meaning of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices , I shall recommend that it cease and desist
therefrom and that it take certain affirmative action of the
type which is conventionally ordered in such cases as
provided in the Recommended Order below, which I find
necessary to remedy and remove the effects of the unfair
labor practices and to effectuate the policies of the Act.
Because of the character and scope of the unfair labor
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices found, I shall recommend a broad cease-and-
desist order.13 I shall also recommend that the election in
Case 28-RC-1901 be set aside and a new election directed.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
RECOMMENDED ORDER
Hicks-Ponder Co., a division of Blue Bell, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in El Paso District Joint
Board, Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization of its employ-
ees, by discharging or in any other manner discriminating
against employees in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) Promising its employees additional paid holidays or
other benefits to induce them to refrain from supporting the
aforesaid or any other labor organization.
(c) Threatening or warning its employees that election of
their labor organization would be futile, that Hicks-Ponder
would not agree to any of its demands or proposals, that as
a result a strike would occur which would seriously harm
them or would result in assaults, fights, or violence; loss of
wages ; loss of homes , automobiles, and other possessions
purchased on credit; inability to secure employment
elsewhere in El Paso; or permanent loss of their jobs or
their right to return to work after termination of the strike
because of the employment of replacements.
(d) Keeping the union activities of its employees under
surveillance, giving its employees the impression that their
union activities are being kept under surveillance, or
preventing its employees from engaging in union activities.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Consuelo Tarin and Reynalda Castellanos
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make each whole for any loss of pay she
may have suffered by payment to her of a sum of money
equal to that which she would normally have earned from
the date of her discharge to the date of such offer of
reinstatement, less her net earnings during said period
(Crossett Lumber Co., 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289,
together with interest thereon at the rate of 6 percent per
annum (Isis Plumbing & Heating Co., 138 NLRB 716).
(b) Notify Consuelo Tarin and Reynalda Castellanos if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay due under
this Recommended Order.
(d) Post at its plant in El Paso, Texas, copies of the
attached notice marked "Appendix B."14 Copies of said
notice, on forms provided by the Regional Director for
Region 28,15 after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith.16
13 N.L.R.B. v. Express Publishing Company, 312 U.S. 426 (1941);
N. L. R. B. V. Entwhistle Mfg. Co., 120 F.2d 532 (C.A.4, 1941); Consolidated
Industries, Inc., 108 NLRB 60 (1954). and cases cited therein.
14 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 .48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board."
is Said notice to be furnished and posted in English and Spanish.
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 28 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in El Paso
District Joint Board , Amalgamated Clothing Workers
of America, AFL-CIO, or any other labor organization
of our employees, by discharging or in any other
manner discriminating against employees in regard to
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT promise our employees additional paid
holidays or other benefits to induce them to refrain
from supporting the aforesaid or any other labor
organization.
WE WILL NOT threaten or warn our employees that
election of their labor organization would be futile, that
we will not agree to any of its demands or proposals,
that as a result a strike will occur which will seriously
harm them or will result in assaults , fights, or violence;
loss of wages ; loss of homes, automobiles , and other
possessions purchased on credit ; inability to secure
employment elsewhere in El Paso ; or permanent loss of
HICKS-PONDER CO.
their jobs or their right to return to work after
termination of the strike because of our employment of
replacements.
WE WILL NOT keep the union activities of our
employees under surveillance, give our employees the
Impression that their union activities are being kept
under surveillance, or prevent our employees from
engaging in union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of any
of the rights guaranteed them by the National Labor
Relations Act.
WE WILL offer Consuelo Tarin and Reynalda
Castellanos immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
each whole for any loss of pay which she may have
suffered as a result of our discrimination against her.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above named or any other labor organization.
HICKS-PONDER CO., A
DIVISION OF BLUE BELL,
INC.
(Employer)
Dated By
731
(Representative) (Title)
Note- We will notify Consuelo Tarin and Reynalda
Castellanos if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
THIS IS AN OFFICIAL NOTICE AND MUST NOT
BE DEFACED BY ANYONE
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board 's Office, 7011
Federal Building & U.S. Courthouse, 500 Gold Avenue,
S.W., P.O. Box 2146, Albuquerque, New Mexico 87101,
Telephone 843-2555.