Carrizo Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1974

214 N.L.R.B. 171 (N.L.R.B. 1974)

CARRIZO MANUFACTURING CO.
Salant Corporation , d/b/a Carrizo Manufacturing
Co., Inc. and Obreros Unidos Independientes.
Cases 23-CA-4938-1 and 23-CA-4938-2
October 22, 1974
DECISION. AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 31, 1974, Administrative Law Judge Lo-
well Goerlich issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief,, and the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith z and to adopt his recom-
mended Order, as modified herein.
1. The Administrative Law Judge found, and we
agree, that the' Respondent violated Section 8(a)(1)
and (3) of the Act by discharging Carlos D. Juarez,
Jr., Pedro Patlan, and Rebecca Patlan. We also
adopt his finding that Respondent violated Section
8(a)(1) when its supervisor, Bill L. McClain, interro-
gated Juarez on December 8, 1973,3 asking him if he
knew anything about meetings held by dissatisfied
employees on the 2 preceding days. In addition, we
agree with the Administrative Law Judge that
Respondent's grant of benefits announced December
12, 1973, violated Section 8(a)(1).
2. The Administrative Law Judge also found that
Respondent discharged employees Alberto Esquivel
and Jose Sosa in violation of Section 8(a)(1) and (3)
of the Act. Respondent contends that Esquivel, the
assistant mechanic at Respondent's plant, was dis-
charged for poor work performance and because he
had not purchased tools necessary for the proper per-
formance of his work. It asserts that Sosa, a clothing
press operator, was discharged for refusing to follow
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2
Respondent's request for oral argument is hereby denied as , in our opin-
ion, the record in this case , including the exceptions and briefs , adequately
presents the issues and positions of the parties.
I Unless otherwise specified , all dates referred to herein are in 1973.
171
Respondent's incentive or piece-rate production sys-
tem, for tampering with his press machine, and for
producing an inferior product. Respondent further
contends that it had no knowledge of the concerted
activities in which Esquivel and Sosa participated.
For the reasons given below, we are not persuaded
that Esquivel and Sosa were unlawfully discharged.
The record contains testimony which supports
Respondent's contention that Esquivel and Sosa
were discharged for work-related reasons, but the
Administrative Law Judge concluded that these as-
serted reasons were pretextual. However, a finding
that the discharges were motivated by the employees'
concerted activity would not be warranted unless
there is evidence that Respondent was aware of such
activity.4 And this the record does not support.
. The Administrative. Law Judge made such an in-
ference because a nonemployee, Joaquin Salgado,
passed the Texas Migrant Council building at the
time of the employees' December 7 meeting, while
Sosa's automobile was parked in front of the building
and Esquivel was standing in front of a window,
whose curtains were drawn 10 inches.' According to
the Administrative Law Judge, "it may reasonably be
inferred that Salgado reported these facts to the Re-
spondent." However, the Texas Migrant Council
building is used by the community for birthday par-
ties, showers, bingo, and meetings in general, and it
does not appear that Salgado knew of the employees'
meeting therein at the time he drove by; according to
Salgado, he was on his way to his cousin's house a
quarter of a block away. The General Counsel does
not allege unlawful surveillance. Finally, Salgado
was a local city councilman who had a contract with
Respondent to truck goods, and the evidence does
not show that he was acting as agent for Respondent
for any purpose.
In these circumstances, we are not satisfied that
Salgado was actually aware of the presence of Sosa
and Esquivel in the Texas Migrant Council building
on the night of December 7. But even if he were,
there is insufficient basis for attributing that knowl-
edge to Respondent on agency principles set forth by
the Administrative Law Judge. We therefore con-
clude that the General Counsel has not met his bur-
den of establishing an unlawful motivation for the
discharges of Sosa and Esquivel. Accordingly, we
shall dismiss the 8(a)(1) and (3) allegations with re-
spect to the discharges of Sosa and Esquivel.
3. Salgado learned of the aforementioned employ-
4 The Administrative Law Judge's finding that the matter of
Respondent 's knowledge of Sosa's organizational activity was an immaterial
factor in fixing Respondent 's guilt is without merit in the circumstances of
this case.
5 The testimony as to these . facts was given by Sosa and Esquivel, not
Salgado.
214 NLRB No. 21
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees' meeting on December 8. He questioned Pedro
Patlan about it, telling him, "If there is any way I can
help you, that's how come you've got me here as a
city councilman to help you out." In the circum-
stances described in his Decision , the Administrative
Law Judge concluded that Salgado interrogated Pat-
Ian at the direction of Respondent and that Salgado
was therefore acting as agent of Respondent, which
was responsible for his conduct . But the circum-
stances upon which he relied do not necessarily es-
tablish that as a fact . Salgado 's visit to Grave 's office
is consistent with his role as an independent trucking
contractor doing business with Respondent , and his
approach to Patlan, as he indicated , was in the role
of a city councilman concerned about potential labor
problems at the plant; moreover, Patlan had no rea-
son to believe otherwise. We are therefore unable to
conclude that the General Counsel has demonstrated
by a preponderance of the evidence that Salgado's
interrogation of Patlan restrained and coerced him,
in violation of Section 8(a)(1) of the Act. According-
ly, we shall dismiss the 8(a)( l) allegation regarding
the conversation between Salgado and Pedro Patlan.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below , and hereby orders that the Respondent, Sa-
lant Corporation, d/b/a Carrizo Manufacturing Co.,
Inc., Carrizo Springs, Texas, its officers , agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order , as so modified:
1. Delete the names of Jose Sosa and Alberto Es-
quivel from paragraph 2(a).
2. Substitute the attached notice for that of the
Administrative Law Judge.
WE WILL offer the above-named employees
their former jobs or , if their jobs no longer exist,
substantially equivalent positions and will re-
store their seniority.
WE WILL pay them any backpay they have lost
because we discharged them.
WE WILL NOT discharge any employee for the
same reasons for which the Board found that we
discharged the above-named employees.
WE WILL NOT unlawfully discharge employees
for lawfully engaging in union activities or pro-
tected concerted activities.
WE WILL NOT unlawfully interrogate any em-
ployees with respect to their union or concerted
activities.
WE WILL NOT unlawfully grant wage and other
employee benefits for the purpose of dissuading
our employees from organizing or supporting a
union or engaging in concerted activities.
The laws of the United States give all employees
these rights:
To organize themselves
To form, join, or help unions
To bargain as a group'through representatives
they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things, sub-
ject to the union-security requirements of Sec-
tion 8(a)(3) of the National Labor Relations
Act, as amended.
All of our employees are free to remain, or refrain
from becoming or remaining , members of a labor or-
ganization.
SALANT CORPORATION,
d/b/a CARRIZO MANU-
FACTURING., INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board , after a trial in
which all parties were permitted to introduce evi-
dence , found that we discharged Pedro Patlan, Re-
becca Patlan, and Carlos D. Juarez, Jr., unlawfully
and that by their discharges we discouraged our em-
ployees from engaging in concerted activities and
from becoming members of Obreros Unidos Inde-
pendientes or any other labor organization.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge in Case 23-CA-4938-1 filed by Obreros Unidos In-
dependientes on December 17, 1973 , against the Respon-
dent , Salant Corporation , d/b/a Carrizo Manufacturing
Co., Inc., was served on the Respondent on the same date
by registered mail. The charge in Case 23-CA-4938-2 filed
by Obreros Unidos Independientes on December 17, 1973,
was served on the Respondent on the same date by regis-
tered mail. An Order Consolidating Cases and Consolidat-
ed Complaint and Notice of Hearing was issued on Janu-
ary 30 , 1974. The consolidated complaint charged that the
Respondent had unlawfully interrogated employees and
CARRIZO MANUFACTURING CO. 173
had granted them benefits for the purpose of dissuading
them from organizing and supporting the Union in viola-
tion of Section 8(a)(1) of the National Labor Relations
Act, as amended, herein referred to as the Act. The consol-
idated complaint also charged that the Respondent had
violated Section 8(a)(3) of the Act by unlawfully discharg-
ing five employees, Pedro Patlan, Rebecca Patlan, Jose'
Sosa, Alberto Esquivel, and Carlos D. Juarez, Jr.
The Respondent filed a timely answer denying that it
had engaged in any of the unfair labor practices alleged.
The cases came on for trial at Eagle Pass, Texas, on
March 12, 13, 14, and 15, 1974. Each party was afforded
full opportunity to be heard, to call, examine and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file
briefs. All briefs have been carefully considered.
and secretary. Antonio Rios, Jr., is the incumbent presi-
dent. The Union has executed a labor agreement with Del
Monte Foods, Inc., Crystal City, Texas, which expires in
accordance with its terms on January 14, 1977. The unit
covered by the agreement was certified by the Acting Re-
gional Director of Region 23 on November 6, 1973. The
labor agreement covers employees' conditions of employ-
ment and among other things provides for a grievance pro-
cedure and arbitration. Since the Union is an organization
in which employees participate and exists for the purpose
"of dealing with employees concerning grievances, labor
disputes, wages, rates of pay, hours of employment" and
"conditions of work," it is a labor organization within the
meaning of Section 2(5) of the Act. -
III. THE UNFAIR LABOR PRACTICES
FINDINGS OF FACT,I
CONCLUSIONS, AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under the laws of the State of
New York, where it maintains its principal office. At all
times material herein Respondent, a manufacturer of
men's, boys', and children's apparel, with plants in several
states and Mexico, has operated a plant in Carrizo Springs,
Texas.
. Within the past 12 months, a representative period, Re-
spondent, in the course of its business, sold and shipped
apparel products valued in excess of $50,000 directly from
its Carrizo Springs, Texas, plant to its customers located
outside the State of Texas.
Respondent is now, and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
In its answer the Respondent denied that Obreros Uni-
dos Independientes, hereinafter called the Union, was a
labor organization within the meaning of the Act.
The constitution of the Union states that its purpose is
"to, organize and represent workers, except management
and supervisory personnel in connection with their em-
ployment." Membership encompasses "Any person who
works in any industry, except management and supervisory
personnel in the State of Texas." Annual elections provide
for the election of a president, vice president, treasurer,
The facts found herein are based on the record as a whole and the
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits , with due
regard for the logic of probability, the demeanor of the witnesses, and the
teachings of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants
Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic-
tion to the findings herein , their testimony has been discredited , either as
having been in conflict with the testimony of credible witnesses or because
it was in and of itself incredulous and unworthy of belief. All testimony has
been reviewed and weighed in the light of the entire record . No testimony
has been pretermitted.
A. The Setting
Salant Corporation is the parent company of wholly
owned subsidiaries Thompson Company, Chester Manu-
facturing Company, Summerville Manufacturing Compa-
ny, Salant & Salant, and Peerless Buckeye Company. Car-
rizo Manufacturing Company, Inc., Carrizo Springs, Tex-
as, is a division of Chester Manufacturing Company. At
the time the events herein detailed occurred, Joseph Lip-
shie was' the president of the Salant Corporation and Perry
Stubblefield was the 'general manager of the Carrizo
Springs plant as well as three of the Respondent's plants
located in Piedras Negras, Mexico.. Stubblefield expressed
the labor policy of the Respondent in These terms: "the
company. policy is that we negotiate in good faith with
organized' labor in the locations where they represent the
people. And, of course, also our policy is that where they
do not represent the people that we use legal means to
combat them in those plants that are not organized." 2
Stubblefield also stated that the "Company policy through-
out is to have more or less an open door attitude. to the
employees that work for us, that we will discuss their prob-
lems with them regardless of what they might be.
The Respondent commenced its cutting operation in an
old armory building located in Carrizo Springs, Texas.' In
July 1973, the cutting operation was moved to a new build-
ing in Carrizo Springs' which the Company now occupies.
Thereafter finishing was commenced in October 1973 and
shipping in November 1973. The Company's products are
men's work pants and boys' and girls' jeans. Of the new
building the finishing department occupies 20,000 square
feet and the warehouse 70,000 square feet.
Employees in the cutting department "cut the parts and
package them up or case them up to ship to [Piedras Neg-
ras] Mexico by truck for the sewing operation.," After the
garment has been stitched in the Respondent's Mexican
plants it is returned by truck to the Carrizo Springs plant.
"All it needs is two buttonholes and to be top pressed, leg
pressed, and inspected and put through the oven on a con-
veyer chain to cure the permanent press resin in the fab-
2 The Respondent has not always confined itself to the use of legal means
to "combat" organized labor. See 164 NLRB 1013 (1967); 162 NLRB 264,
267 (1966); 92 NLRB 417 (1950); and 66 NLRB 24.
3 Carrizo Springs has a population of slightly over 5.000 persons.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ric." These operations are performed by employees in the
finishing department. After the garment is finished it is
stored in the warehouse until shipped to the customer.
These functions are performed by the employees in the
warehouse department. Bill L. McClain, a salaried employ-
ee, is foreman of the finishing and the warehouse depart-
ments. Stubblefield spends about one-fourth of his time at
the Carrizo Springs plant. Assigned to the plant are also
Hobart Graves, office manager, Harpo Garcia, personnel
manager, Richard Ray, engineer for the Carrizo Springs
and the Piedras Negras plants, and Fred Rios, chief me-
chanic for the Carrizo Springs and the Piedras Negras
plants. Rios supervised the mechanics and janitors at the
Carrizo Springs plant where he spent little time. Harold
Kane is the head mechanic at the Carrizo Springs plant.
According to Stubblefield the "people he [Kane] supervises
are his helper and the janitors or watchmen in the plant."
Employees in the finishing department had been paid
the Federal minimum of $1.60 an hour. On November 30,
1973, Stubblefield "held meetings with the personnel from
each operation in the -finishing department explaining to
them the wage structure of a piece rate system. ... " The
Respondent had been operating under "start up condi-
tions" and it was believed that by the end of, November
"the people were sufficiently trained to be sufficiently im-
pressed. . by the incentive pay plan" The base rate un-
der such plan was established at $2.05 per hour.' This piece
rate system was implemented on December 3, 1973.
The employees' workweek ended on Friday at which
time they received 2 weeks' pay. This represented wages
earned during a 2-week period ending on the prior Friday.
On December 3, 4, and 5, 1973, the Respondent held an
"opening celebration or dedication for the building of the
manufacturing plant in Carrizo Springs, Texas." President
Lipshie and Vice President Walter Bullwinkel attended.
According to Stubblefield, during Lipshie's visit Lipshie in-
formed him that it was time that the Carriso Springs plant
"moved ahead with [its] program of wage rates, benefits,
and this sort of thing." Lipshie advised Stubblefield that he
would discuss this matter with other officials of the Re-
spondent and that he would be back in touch with him the
following week to let him know what the changes should
be.
As explained by employee Pedro Patlan, during the peri-
od of the Respondents' operation "a lot of the employees
in the plant had complaints and they wanted ... to find a
way to do something about them and they were talking
about getting together somewhere and discussing some of
these things." Patlan agreed to find a place. He contacted
Cruz Sanchez and Armando Criel who worked for the Tex-
as Migrant Council which provided social services for the
community and Patlan arranged for an employees' meeting
at its building located at 912 Adams Street, Carrizo
Springs, on December 6, 1973. Twenty to thirty employees
were present at the meeting. Sanchez and Criel attended.
At the meeting those present realized that they knew little
about organizing. Thus it was decided to muster more em-
ployees and contact someone who could give the employ-
ees advice on how to start organizing. After the meeting
Patlan, his wife, Rebecca Patlan, Sanchez, and Criel jour-
neyed to Crystal City, Texas, where they contacted repre-
sentatives of the Union.
On the next night, December 7, 1973, about 20 employ-
ees met again in the Texas Migrant Council building. An-
tonio Rios, Jr., president of the Union, and Hector Rodri-
guez, a union organizer, attended. The employees dis-
cussed conditions of employment noting that there were no
fringe benefits. Rios and Rodriguez spoke to the employ-
ees, described the Union's experiences at Del Monte, dis-
cussed the problems of organization, and offered the
Union's help. The employees decided that they would, wait
before taking any action until the following Friday when
their checks would come out since these checks would re-
flect the new incentive pay system. No action was taken
toward joining the Union since, as explained by Patlan, all
the employees wanted was information. Nevertheless, a
committee of four individuals was elected, a spokesman for
each of the departments. The committee members were to
inform the employees in the_departments "exactly what
was trying to be accomplish and to try to get the majority
from each department to come to the meetings." A meeting
was set for Friday; December 17, 1973.
While the meeting of December 7, 1973, was in progress
employee Alberto Esquivel, who was attending the meet-
ing, saw Joaquin Salgado, a Carrizo Springs city council-
man with whom the Respondent has contracted to truck
cut work from Carrizo Springs, Texas, to its plants in Pie-
dras Negras, Mexico, drive past the Texas Migrant Council
building three times during a period of 4 or' 5 minutes.
Salgado admitted that he saw his friend Juan Lopez, an
employee of the Company, going into the building, which
he could not identify by name although other witnesses
had no difficulty identifying it by name.
On the next 'morning, Saturday, December 8, 1973, be-
tween 7 and 7:30 a.m., Salgado was observed by Rebecca
Patlan in Graves' office together with Stubblefield, Ray,
and Graves. Salgado left the group and walked into the
plant. He returned "a while later." Ray then left and re-
turned "a little while later" with McClain and the meeting
continued until around 9 a.m.
According to Salgado he had contacted Lopez who told
him to "ask Patlan. Salgado asked Patlan "what went on
last night." Patlan answered that the employees were trying
to find out the benefits for the employees. Among other
things Salgado said "If there is any way I can help you,
that's how come you've got me here as a city councilman to
help you out." 5 Ray listened briefly to the conversation.6
According to Salgado he "went back to Mr. Stubblefield"
and told Stubblefield "There is some people here that want
to find out what benefits they've got and all that." After
some prompting Salgado agreed that he had mentioned
5 Patlan's testimony as to this conversation was more extensive . Accord-
ing to Patlan the employees' grievances were discussed and he told Salgado
that the "reason " for the employee meetings was to organize "some kind of
committee" to present grievances . Salgado responded , "We don't want a
union in here" Apparently Salgado took the word "committee" to mean
"union ." Where there is a conflict between the testimony of Salgado and
Patlan, Patlan is credited.
Such amount was paid to the employee who attained "100 percent of 6 The conversation was in Spanish. Ray said he could not understand
production or the quota that was established for the particular operation." Spanish.
CARRIZO MANUFACTURING CO. 175
Patlan's name to Stubblefield.
Stubblefield testified that Salgado, at about 8 a.m., en-
tered Graves' office. Salgado informed him of the employ-
ees' meeting and that the employees were concerned about
their benefits and wages. Salgado said he thought the bene-
fits related to insurance, vacations, and holidays.7 Upon
Stubblefield's inquiring as to where he obtained the infor-
mation Salgado answered that he had talked to Patlan who
had attended a meeting.
On Monday morning, December 10, 1973, Stubblefield,
Ray and McClain were in the plant observing the employ-
ees for "mostly all day." This was an unusual procedure for
Stubblefield. Stubblefield said that he was in the plant on
Monday because he felt that "if someone was real dissatis-
fied they might accidentally say something to [him] about
the situation." Stubblefield discussed Patlan with McClain
and pointed out to him that "Pete was standing leaning
against a table talking to someone."
That same day Patlan, his wife, and Jose Sosa were fired.
After his discharge, at about 4 o'clock, Sosa entered
Stubblefield's office and among other things, according to
Stubblefield, said "something to the effect that we're going
to have a union in here whether you like it or not."
That same day Stubblefield called Lipshie and reminded
him of the conversation of the previous week. He pointed
out to Lipshie that dissatisfied employees were holding
meetings. He asked Lipshie to "speed up" and "hurry this
thing up a little."
On December 11, 1973, employee Alberto Esquivel'was
discharged.
On December 12, 1973, Lipshie responded to
Stubblefield's urgings after which Stubblefield assembled
the employees and announced wage increases, weekly pay-
checks, holidays, vacations, hospitalization and medical
life insurance, and optional dependent coverage. After
pointing out that the Respondent gave its employees wages
and benefits which compare favorably with- the industry
because "we work together, we solve our problems, togeth-
er, and in this way we can progress together," Stubblefield
closed his remarks as follows: "As a matter of fact this
Company has been in existence since 1893. Salant Corpo-
ration has 29 Plants. In the United States only 9 Plants
have a Union and most of these came on during World
War II. The last Plant that was organized was in 1966.
Unions have tried'since then and have not succeeded be-
cause our employees said No to the Union.
Let us work together here as we have during the past
month and let us grow together in this way, so I can always
talk to you about happy news as I did today."
On this day Carlos D. Juarez, Jr. was fired.
the meaning of the Act at the time of their discharges.
First: At the time of his discharge Juarez worked in the
warehouse under the supervision of McClain who spent
about 50 percent of his time in the warehouse. Fourteen
men and ten women were employed in the warehouse. The
women were inspectors of small pants for children. Other
employees performed sorting, picking, packing, checking,
putting stock in bins, and loading and unloading trucks.
Juarez had not worked in a garment plant before.
Juarez' separation slip listed him as an assistant supervi-
sor which information came to Juarez as a surprise since he
had not been previously informed of this title. McClain
had never mentioned to him that he was a supervisor nor
had any of the employees been given such information.
Juarez was hired on October 2, 1973. After about 2
weeks of doing various jobs in the finishing department
McClain 8 told him that he was going to "help" him in the
finishing department. After the fourth week McClain told
Juarez that he wanted him to "help" him in the warehouse
where he continued to work until he was fired on Decem-
ber 12, 1973.
Each morning Juarez met with McClain at which time
McClain gave him orders to transmit to the warehouse em-
ployees.' Most of the time Juarez performed the same man-
ual labor as the other warehouse employees. Juarez did not
receive a wage raise when he was first assigned to the job,
but around 2 weeks before he was discharged (November
24, 1973) his wages were raised 15 cents an hour to $1.75
an hour.
Sometimes, after an employee had finished a job, Juarez
transferred the employee to another job which had been
designated by McClain. When no job was designated, oc-
casionally Juarez would make the transfer but then would
check with McClain.
Occasionally McClain would transfer an inspector to an-
other job and instruct Juarez to choose the one for the
transfer. Since the inspectors performed the same work it
made little difference which one was chosen. Sometimes
Juarez and other employees remained at work after Mc-
Clain had left for the day. On these occasions McClain told
Juarez what was to be done. After the work was completed
the employees left.
McClain determined when overtime would be assigned
but some times Juarez chose the employees who were to
stay, usually volunteers. This work involved the loading
and unloading of trucks.
McClain asked Juarez to inquire of employees why they
were late for work, to whom Juarez suggested a few times
that they not make a habit of it, that "after doing this too
much they might get fired."10
Twice McClain was absent for part of a day. On these
occasions McClain instructed Juarez what was to be done.
B. The Alleged Supervisory Status of Carlos D. Juarez, Jr.,
and Pedro Patlan
The Respondent concedes that if employees Carlos Jua-
rez, Jr., and Pedro Patlan are not supervisors, they were
discharged in violation of the Act. Thus the threshold ques-
tion is whether Juarez and Patlan were supervisors within
Juarez followed the orders. '
On one occasion a dispute arose between Roger Marti-
8 McClain did not testify although he was in the court room.
'Juarez explained some of these orders as follows: "... like this morn-
ing let's put three men over here stacking these boxes and take this other
four men stacking pants over there on the shelf. And if we had some orders
to be picked up, he said put so and so, he would give me the names, differ-
ent names of the employees, and put those to get the orders out"
10 Juarez explained , " He [McClain ] didn't tell me that but I figured myself
7 Insurance benefits and vacation benefits were not in effect at the time . that this could happen."
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nez and Juarez as to who was to give orders. McClain told
employees Juarez would give the orders.
Juarez punched a timeclock and was paid overtime as
other employees. He attended no supervisors' meetings. He
had no disciplinary authority. Juarez was not replaced af-
ter he was discharged.
Pedro Patlan had worked for the Respondent for 7
weeks at the time of his discharge. For about 2 weeks after
his employment he sorted, sized, and boxed materials com-
ing out of the oven for which he received $1.60 an hour, the
statutory minimum. Thereafter he was given the job in the
finishing department formerly occupied by Juarez before
he was transferred to the warehouse. McClain was Patlan's
supervisor. About 30 to 35 employees worked in the finish-
ing department. Some employees operated buttonhole ma-
chines, top pressers, leg pressers, and zipper machines;
other employees hung garments for the oven and cut elas-
tic. Some were repair operators. All were routine tasks.
On the day Patlan assumed Juarez' job McClain told
him that he "was going to be promoted to assistant supervi-
sor" and that he was taking Juarez' place; that he would be
earning the same wages and that Juarez would show him
"what to do on the job." I I Juarez for a period of about 30
minutes then showed Patlan how to pick up the production
count for each employee and said that if he needed any-
thing else to ask him or get in touch with McClain. The
short period of instruction required depicts the simplicity
and routine character of Patlan's job.
Patlan described his daily routine as follows:
The first thing I would do is I would hand each of
the employees the sheets 12 that they would place the
tickets on and then I would find out . . . if there was
anyone absent and ... try to get them situated so
they would get started. . . . If there was anybody ab-
sent, I would report that to Mr. McClain and let him
know. And from there during the day .. . other than
picking up the counts, I would make sure that they
had whatever material they needed to work with and a
lot of times they would call me that they needed a
mechanic. . . . So that in general was all I did during
the day to make sure that they had whatever they
needed.
. In regard to Patlan's work the credible record reveals,
further:
He did no work on the machines. Upon the request of
McClain he told pressers to go to the warehouse. He did
not handle requests for time off. He handled-no warnings
except on one occasion McClain told him to tell some em-
ployees to'quiet down. A few times when machines broke
down he told employees to work on another vacant ma-
chine. (Sometimes the employees made the transfers them-
selves.) He had no disciplinary authority. He was never
11 The Respondent's personnel records show that Patlan 's wage was in-
creased . to $1.675 an hour on November 24, 1973.
These were referred to as gum sheets to which the operator would paste
the ticket from the bundle of pants on which he was working; "each ticket
represented so many dozens ." Patlan obtained the count from these tickets
which he placed on the production sheet.
asked by McClain what he thought of an employee's work.
He never assigned employees to cleanup work. On a couple
of occasions he indicated that a garment would not pass
but he had never been instructed "on what kind of qual-
ity." He entered employees' downtime on the gum sheets
which was necessary for payroll purposes. He entered an
employee's absence on the production sheet. He entered
information on the gum sheet and the production sheet: he
made an entry thereon when the employee was on repress-
ing. He supplied materials for the repair girls. He moved
toppers to leggers and vice versa on instructions from Mc-
Clain. On several occasions he assigned overtime to em-
ployees which was determined on the basis of McClain's
instruction: "If there is so many benches out there per each
worker, then if there is more than that amount they should
stay and if not, they can go home at the regular hour." He
did not transfer present employees if employees were ab-
sent. He "had to see that everybody had the material to
work with." He did nothing if the pressers were over load-
ed. He did not check the inspector's work. He did not, on
his own, balance the lines when overloading occurred. He
did not, on his own, transfer employees for lack of work.
He assigned overtime per instructions on a day McClain.
was absent. On instructions, of McClain he inquired of an
employee why his production was down. On instructions of
McClain he sent leggers to the warehouse. On several occa-
sions when repress work piled up he decided who would be
assigned to repress work. He did not- know how to operate
the machines or the methods the employees were using in
their operation. He did not know the leg pressers were to
be activated for 5 seconds. He did not instruct new em-
ployees on their jobs.
An employee witness for. the Respondent testified that
McClain had never told him that Patlan was his boss nor
had anyone ever called Patlan an assistant supervisor.
Patlan envisioned his supervisory authority -as follows:
"I considered myself being there as nothing more than a
messenger boy and somebody to get the little knicknacks. I
never felt that I had any authority there whatsoever."
Stubblefield described the alleged supervisory authority
of Patlan as follows:
His responsibilities would be to assign the work to.
balance the work load between operations, to check
quality coming off of the various operations, keep cer-
tain records of production, even earnings after the
piece rates were established. He has the authority to
approve or disapprove, whichever the case might be,
the off standard time that an operator might have
when their job assignment is a piecework job and they
have to be moved from this job for any reason.
In addition Stubblefield said Patlan had authority to
transfer employees from one job to another, and grant time
off and overtime.13
13 Stubblefield had not personally spoken with either Juarez or Patlan
about their authority. McClain, who had been present in the courtroom and
who would have had personal knowledge of the work performances of Pat-
Ian and Juarez, unexplainedly did not appear as a witness. Not only was
Stubblefield's testimony secondary but there is no credible evidence that the
alleged . extent of the authority of Juarez or Patlan was ever communicated
CARRIZO MANUFACTURING CO.
Second: Section 2(3) of the Act excludes from the defini-
tion of the term "employee," and therefore excludes from
the protection of the Act, "any individual employed as a
supervisor." Section 2(11) of the Act defines "supervisor"
as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibility to direct them, or to ad-
just their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
"[T]he employer cannot make a supervisor out of a rank-
and-file employee simply by giving him the title and the
theoretical power to perform one or more of the enumerat-
ed supervisory functions." N.L.R.B. v. Southern Bleachery
& Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958);
"what the statute requires is evidence of actual supervisory
authority visibly translated into tangible examples demons-
trating the existence of such authority." Oil, Chemical and
Atomic Workers International Union v. N.L.R.B., 445 F.2d
237, 243 (C.A.D.C., 1971). Thus the title assistant supervi-
sor, if bestowed, was meaningless within the statutory defi-
nition unless the supervisory power as envisioned by the
statute was actually exercised and exercised at the time of
the employee's discharge.
If the evidence is interpreted most favorably in support
of the Respondent's claim, the authority of Juarez and Pat-
Ian was limited to transferring, assigning, and responsibly
directing employees. Had Juarez and Patlan actually exer-
cised such authority, to satisfy the definition of supervisor,
the exercise of such authority must have been "not of a
merely routine or clerical nature," but must have required
the "use of independent judgment"; for the exercise of
some supervisory tasks in a merely "routine," "clerical,"
"perfunctory," or "sporadic" manner is not sufficient to
bring an employee under the statutory definition of super-
visor. N.L.R.B. v. A. E. Nettleton Co., 241 F.2d 130, 132
(C.A. 2, 1957). Nor will the existence of independent judg-
ment alone suffice; for "the decisive question is whether
[the individual involved] has been found to possess authori-
ty to use [his] independent judgment with respect to the
exercise by [him] of some one or more of the specific au-
thorities listed in Section 2(11) of the Act." N.L.R.B. v.
Brown & Sharpe Manufacturing Company, 169 F.2d 331,
332 (C.A. I, 1948).
The credited evidence in this case does not support a
finding that Juarez and Patlan at the time of their dis-
charges exercised job functions which aligned them with
management. Juarez worked as other employees; he was
little more than a "conduit" for McClain who neither held
him out to the employees as a boss nor vested in him the
right to exercise judgment in respect to the specific authori-
ties listed in Section 2(11) of the Act. Patlan described his
duties well when he testified: "I considered myself being
to them or that such authority was exercised by them. Thus Stubblefield's
self-serving testimony merits little weight.
177
there as nothing more than a messenger boy and somebody
to get the little knicknacks. I never felt that I had any
authority there whatsoever."
The work which Patlan performed in connection with
the production and gum sheets was of a plant clerical na-
ture in that it involved simple record keeping of a routine
nature. Moreover, McClain did not hold Patlan out to be a
boss nor did he bestow upon him any of the supervisory
powers listed in Section 2(11) of the Act.
There was no showing that the duties of Juarez or Patlan
gave the feeling of control, power, or superiority that one
finds in a supervisor. See N.L.R.B. v. Security Guard Ser-
vice, . Inc., 384 F.2d 143 (C.A. 5, 1967). As was true in such
case the title and minor decision making power of Juarez
and Patlan, if it may be considered as such, did not com-
plete the picture of petty panjandrums. In any event the
rule de minimis applies here. "If any authority over some-
one else, no matter how insignificant or infrequent, made
an employee a supervisor, our industrial composite would
be predominately supervisory. Every order-giver is not a
supervisor. Even• the traffic director tells the president of a
company where to park his car." Idem. 14
Patlan's wage rate of $1.675 an hour and Juarez's wage
rate of $1.75 an hour were incompatible with their alleged
roles as supervisors since rank-and-file employees, at the
time of their discharges, were being paid a base rate of
$2.05 an hour, an amount exceeding either that of Patlan
or Juarez. It is obvious that a feeling of power and superi-
ority did not emanate from these marginal wage rates.
Moreover, it seems contra to the realities of the industrial
world that the Respondent would have turned over to Pat-'
lan and Juarez the exercise of independent judgment with-
out- additional training when their experience in the gar-
ment field was limited to a few weeks.
Additionally Stubblefield's testimony suggests that the
Respondent's claim that Patlan and Juarez were supervi-
sors was prompted as a contrived defense against their dis-
charges for statutorily protected activities, for Stubblefield
was quick to deny the supervisory status of Kane whose
supervisory authority, if any, was more pronounced than
that of Patlan or Juarez. Not only did Kane pass on the
hire of Esquivel but he, as head mechanic, was the only
representative of management directly over Esquivel and
the janitors in the Carrizo Springs plant. (Rios was seldom
at Carrizo Springs; he spent almost all his .time in the Mex-
ican plants.) Stubblefield testified that the "people he
[Kane] supervises are his helper and the janitors or watch-
men in the plant." If the Respondent did not consider that
Kane was a supervisor within the meaning of the Act it was
hypocrisy for it to have hung the title of supervisor on
Juarez and Patlan.
Accordingly it is found that Juarez and Patlan at all
times herein mentioned were employees within the mean-
ing of the Act and as such employees were entitled to its
benefits. See Purity Food Stores, 150 NLRB 1523, 1524,
1525 (1965), and American Coach Company, 169 NLRB
1065 (1968).
1e'•The legislative history of §2( 11) ten is to support the Board's view that
certain employees with minor supervisory duties, such as straw bosses and
leadmen, were not intended to be excluded from the coverage of the Act."
N.L.R.B. v. Quincy Steel Casting Co., 200 F.2d 293, 296 (C.A. I, 1952).
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Discharge of Pedro Patlan
According to Pedro Patlan's separation slip he was dis-
charged for "unsatisfactory performance on the job." Nev-
ertheless, his work performance was satisfactory. The real
reason for his discharge as expressed by Stubblefield was:
"He was discharged because it was deemed that a person in
supervision should not be maintained on that job when
they were attending meetings with dissatisfied, allegedly
dissatisfied employees without telling his supervisors in the
organization." Stubblefield initiated the discharge of Pat-
lan. On the day of Patlan's discharge McClain told Patlan
when he asked for a specific reason for his discharge, "you
just didn't work out." On being pressed further McClain
said, "the women on the buttonhole machines, they are
talking too much and not doing enough work." On the
same date Stubblefield said that he had observed Patlan
"standing leaning against a table talking to someone" and
remarked to McClain that he didn't think Patlan "was per-
forming his supervisory duties as he should" because while
they were standing there Patlan was "not doing anything
really." 15
D. The Discharge of Rebecca Patlan
Employee Rebecca Patlan, the wife of Pedro Patlan, was
also discharged on December 10, 1973. Her separation slip
also cites "unsatisfactory performance on the job" which
was not the true reason for her discharge. According to
Stubblefield, who initiated the discharge of Rebecca Pat-
lan, "the real reason we discharged Rebecca was the fact
that we were discharging her husband because he was dis-
loyal supervisor with the Company. Due to Rebecca's posi-
tion in the office handling matters that, typing my letters,
for instance, certain records, it was quite obvious that if she
had good relations with her husband she would be disgrun-
tled and unhappy about that and I didn't feel that-she
would be an employee that could be trusted with that con-
fidence after we had discharged her husband."
Rebecca had accompanied her husband to Crystal City,
Texas, when he sought help for the employees from the
union representatives and had attended both employee
meetings. She had mentioned to Graves that she "wasn't
satisfied." At the time of her discharge she was in training
for a payroll clerk which entailed computing the amount
that the employees earned from the payroll cards. At the
time she was training several girls to take over the job she
was leaving. She described this job as a receptionist, "girl
Friday," typist, and file clerk. She also placed calls and
answered the phone. She worked in the general office area.
The credited record does not establish that she was a confi-
dential employee.
is The remark of McClain at th4pdischarge exit, and Stubblefield's obser-
vation of Patlan in the plant and 'his remark to McClain, arouse a likely
inference that the Respondent was preparing for a defense against the
charge of pretext and that the supervisory defense was an afterthought.
E. The Discharge of Jose Sosa
Employee Jose Sosa's separation slip also discloses that
he was discharged on December 10, 1973, for "unsatisfac-
tory performance on the job." Sosa had worked about 2
months before he was discharged. He operated a leg pres-
ser which was required to remain in the press position for 5
seconds during each press operation. Its time cycle was
controlled by a timing valve which could be manually ad-
justed. to
At the piecework explanation employee meeting on No-
vember 30, 1973, according to Stubblefield, Sosa remarked
that "people could make that much working in the field."
Thereafter Stubblefield reported to McClain that Sosa
"seemed to have a poor attitude, negative attitude to the
approach of our number of dozens we were asking for on
the job to make production" and that he "thought he
should keep an eye on him."
Sosa attended the employee meetings at the Texas Mi-
grant Council building on December 6 and 7, 1973. Sosa
invited about 15 employees to the meeting. At the meeting
Sosa parked his 1970 station wagon in front of the build-
ing, where it was in the view of Salgado when he passed the
building. Salgado was acquainted with Sosa and the auto-
mobile which Sosa parked in front of the Texas Migrant
Workers building. Salgado and Sosa lived on the same
street about three or four blocks apart.
On Monday, December 3, 1973 (December 3 was the
date on which the incentive pay plan was put in effect),
Ray adjusted, the timer on Sosa's presser at which time he
also adjusted the timer on other pressers. Prior to Ray's
advent Sosa had adjusted the timer because its pressing
sequence was too long, but after Ray's adjustment Sosa did
not again meddle with the timer. On Tuesday morning,
December 4, the press was "staying down too long." Sosa
requested the mechanic to adjust the timer which he did.
The mechanic's adjustment did not accommodate. the 5
second cycle. Ray appeared and adjusted the timer and
told Sosa that if ".the timer was off again" he would be
fired. Sosa tried to explain to Ray that the mechanic had
adjusted the timer but Ray did not believe him and re-
sponded, "Oh, come on-Don't give me that sh-." 11
According to Ray, on Monday morning December 10,
1973, Ray saw Sosa's presser operating out of cycle 18 and
went to Stubblefield whom he advised that he intended to
discharge Sosa. Stubblefield approved. Stubblefield testi-
fied that "Sosa had moved the timer. on his legging ma-
chine on different occasions to speed up the time cycle on
the machine and he had been warned repeatedly 19 that this
16 If the pressing cycle was less than 5 seconds an inferior press resulted;
however, the operator, if on incentive work, could earn more money. On the
da of his discharge Sosa was not engaged' on incentive work.
7 According to Ray he adjusted Sosa's presser on three occasions. On the
third occasion Ray said he "sort of lost [his] temper," at which time Sosa
denied that he had meddled with the timer: Ray responded, "that's a bunch
of stuff." Ray also reminded Sosa that if the machine was not running
properly he should "call a mechanic or let somebody know it wasn't work-
ingsright" . .
Apparently (if Ray is to be believed) Sosa's presser operated out of
cycle from Monday'morning until about 4 o'clock Monday afternoon at
which time Sosa was fired.
19 According to Ray Sosa had been warned only once. Sosa had received
no written warnings.
CARRIZO MANUFACTURING CO.
could not be tolerated by the Company. He continued to
do this and in spite of the warnings so Mr. Ray, Richard
Ray, our engineer, finally after several warnings discharged
Mr. Sosa for this particular instance." 20
On December 10, the day of Sosa's discharge, he was
assigned to repressing which was not a piecework job.
Shortly before 4 o'clock (4 o'clock was Sosa's quitting time)
Sosa was called to Garcia's office and informed that that
was "all for him." Sosa asked, "Why?" Garcia replied, "I
don't know." On departing Sosa saw Stubblefield to whom
he asked to speak. Both went to Stubblefield's office where
Sosa asked Stubblefield why he was fired. Stubblefield an-
swered that "he had been observing [him] all day and he
wasn't satisfied with [his] emphasis on the job." Sosa told
Stubblefield that he was "pressing more than anybody."
Stubblefield answered that "he knew" but there were
"some other people doing as much or pretty close to that."
Sosa described the remainder of the conversation. "I told
him that I knew about Joaquin [Salgado] told him about
our meetings and about us getting a union over the factory.
At this point he just, you know, looked at his desk. He
didn't answer. And I started talking again and then he
started staring at me. I told him, `Even though I'm fired
and no longer have the job here, we are still going to get
this Union in here.' " 21
Although Stubblefield said that he was aware of the
charge against Sosa of tampering with the timer on the day
of his discharge, he did not tell Sosa the nature of his un-
satisfactory services.
On December 10, 1973, McClain remarked to Juarez,
"Look at Sosa. He's not working. He's working too
slow." 22 On the day of his discharge Sosa indicated that
his presser was not operating properly.
There were about 8 or 10 pressers in the finishing depart-
ment. From time to time McClain, Harold Kane, mechan-
ic, Alberto Esquivel, mechanic's helper, and Ray adjusted
the timers on these machines. Patlan explained, "some of
the other employees would tell me that it was going up too
fast or it was staying down too long but I couldn't tell the
difference so I would just tell them to go over on another
machine until we got a mechanic to fix it."
Esquivel testified, "the presser would go down too slow
or go up too slow. I would move the knobs under the ma-
chine or set it somewhere and I would fix it."
20 Employee Bustamante , a 19-year-old leg presser , testified on behalf of
the Respondent in respect to the Sosa incident . Bustamante first testified
that he saw Ray fix the timer on Sosa 's presser one time after which Sosa
readjusted it. Later he testified that he saw Ray adjust the timer on Sosa's
presser three times and Sosa readjusted it "three or more" times . On cross-
examination Bustamante testified that he could not see the timer valve from
where he worked and that he had not paid too much attention. Bustamante
had been invited by Sosa to attend the employees ' meeting at the Texas
Migrant Council building but did not attend . First Bustamante denied that
he had been asked by Sosa to attend . Later he admitted it. Bustamante was
not a reliable witness and where his testimony conflicts with other credited
witnesses it is discredited . He was obviously trying to accommodate his
employer.
Stubblefield admitted that the remark referring to the Union was made
but denied Sosa's remarks about Salgado . On this point Stubblefield is dis-
credited.
22 The uncontroverted and credited testimony of Juarez.
179
F. The Discharge of Alberto Esquivel
Alberto Esquivel was hired on October 10, 1973, and
discharged on December 11, 1973. Thus he worked 2
months. He was hired as a mechanic's helper. He had no
previous experience, which he related to Harold Kane,
head mechanic, when he interviewed him for hire. Kane
said that "was O.K. because he was going to teach [him]."
Kane told Esquivel that he needed tools but since he had
none he would allow him to use his tools. While Esquivel
knew that he needed tools, he did not purchase tools be-
cause of a lack of money which fact he related to Garcia.
Ray said it was not a requirement that mechanics buy
tools.
Esquivel attended the two meetings of the employees in
the Texas Migrant Council building. As Esquivel moved
over the plant.on his work assignments he notified about
25 employees of the meetings. He told the employees that
there was to be a meeting "pertaining to complaints of
some of the workers and about the price, it was kind of
low, and that if possible we might try to organize a union."
At the second meeting, while "facing toward the picture
window" Esquivel saw Salgado drive past the Texas Mi-
grant Council building three times.
Prior to his discharge, Esquivel had received no warn-
ings with respect to his work performance. On December
11, 1973, Ray approached Esquivel while he was working
on a sewing machine plug and asked him to follow him to
Garcia's office, where he discharged him. Ray said that
Esquivel "didn't have any tools to use and [he] wasn't a
good mechanic and then he asked [him] if [he] were to get
any other job and needed a reference to have the one that
[he] was going to get the job, to have them call him for a
reference"; that he would "tell them that [he] wasn't a good
mechanic. but [he] was a good worker."
Shortly before Esquivel was discharged Kane had been
sent to Dallas for a week's course on the repair of Reece
buttonhole machines. Fred Rios, chief mechanic, filled in
for Kane for the week in December. Rios arrived on Mon-
day, December 10, 1973. On Monday afternoon, according
to Rios, he reported to Ray that "the helper ... wasn't
much interested in learning" although he spent little time
with Esquivel that day. On Tuesday Rios advised. Ray that
"it would be best to replace him." Rios testified that he saw
Esquivel once wiring a little trolley drop cord. To the ques-
tion, "Did you observe him doing anything else while you
were there those three days?" Rios answered "No sir, I
didn't. I didn't know where he was. I had work to do. I just
went and did the work." Rios further stated he had not
observed him. Esquivel received no assignments from Rios.
Kane never complained to Rios about Esquivel.?3
According to Ray he recommended Esquivel's discharge
to Stubblefield based on the recommendations of Rios.24
23 It is clear from Rios' own testimony that Rios had no factual basis for
reporting to Ray that Esquivel was not interested in learning or that it
would be best to replace him, which recommendation no doubt was not
given . Rios was a disingenous witness and I conclude that the critical parts
of his testimony were fabricated to accommodate his employer. Moreover,
the testimony of Ray and Rios on the subject does not jibe.
24 According to Ray one of Rios' specific complaints in respect to Esquiv-
el was that Esquivel did not know how to put a wheel on a spreader. Rios
Continued
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ray told Stubblefield, "Fred (Rios) has been working with
him yesterday and today and Fred says he is terrible. He
won't even try." Stubblefield recited the reason for
Esquivel's discharge as follows:
His supervisors advised that he showed lack of in-
terest, inability to perform, the lack of adhering to
instructions that were given him by his supervisor to
the point that he would not develop into the type me-
chanic that we would expect and must have. And after
several weeks of this type performance, it was deemed
necessary to discharge him and start someone else
G. The Discharge of Carlos D. Juarez, Jr.
Carlos D. Juarez, Jr., was discharged on December 12,
1973, according to his separation slip because of "dissatis-
fied work" which Stubblefield explained:
the foreman he worked for had repeatedly asked Car-
los if he knew anything about any meetings, if he
knew anything about any dissatisfied employees, and
he asked him many times if in fact he did, if he would
come and talk with him, who was Billy McClain, or if
he didn't want to discuss it with Billy, if he would
come and talk with me about it with any information
he might have of dissatisfied employees. And Carlos
instead of, according to Billy, instead of advising him
and telling him what he knew or what he learned from
the people that worked for him, he avoided him, he
shunned him, and if it is anything a company can't
tolerate, it is disloyal supervisors.. . .
Juarez attended the Friday, December 7, 1973, meeting
at the Texas Migrant Council building. Juarez told the em-
ployees present that if they thought he could help them he
would talk to McClain.
On the next morning, December 8, 1973, McClain was
summoned to the office. Upon his return he asked Juarez if
he knew anything about the meetings. Juarez answered in
the affirmative. McClain asked why Juarez had not told
him about the meetings. Juarez indicated that he hadn't
had a chance, whereupon McClain asked Juarez what the
employees wanted. Juarez responded, inter a/ia, that the
employees were not satisfied with their wages. McClain re-
plied, "don't you think $1.60 is enough?" Juarez responded
by saying that the $1.75 he was getting was not enough,
and that there were no benefits. Juarez further indicated
that he went to the meeting "to find out what they want-
ed." McClain reminded Juarez that he was working for the
Company. Juarez responded that he knew he was working
for the Company, "but it looked to [him] as if [he] was in
the same situation as the workers because [he] didn't re-
ceive any paid holidays or insurance benefits either."
On December 12, 1973, about 11:30, Garcia summoned
Juarez to the office where McClain was sitting. McClain
said, "Carlos. .. . I don't know how I am going to tell you
this, but you're been my best friend in this area . . . but the
only thing is that I have to terminate you from the job
because of unsatisfactory work." Juarez protested saying
that the discharge was because he asked for more money
and benefits.
H. The Unlawful Interrogations
Whether the Respondent is guilty of unlawfully interro-
gating employee Patlan rests upon a finding that Joaquin
Salgado was an agent of the Respondent. The following
factors support the finding that Salgado acted as the
Respondent's agent: (1) Employee Rebecca Patlan, whose
testimony is credited, observed Salgado confer with Stub-
blefield, Ray, and others in Graves' office, leave, and then
return, which strongly indicated that Salgado was sent on a
mission. (2) Ray, after leaving Graves' office, approached
Salgado and Patlan while in conversation in the plant and
listened in on part of the conversation, all of which indi-
cated that Ray had knowledge of Salgado's mission. (3)
Salgado, after testifying about his conversation with Pat-
Ian, said, "I went back to Mr. Stubblefield," the clincher
which confirms that Salgado had visited with Stubblefield
prior - to his accosting Patlan. (Emphasis supplied.) See
N.L.R.B. v. Dayton Motels, Inc., 474 F.2d 328, 331 (C.A. 6,
1973), and N.L.R.B. v. General Metal Products Company,
410 F.2d 473 (C.A. 6, 1969), cert. denied 396 U.S. 830
(1969).
Accordingly, it is found that by Salgado's interrogation
of Patlan and Supervisor McClain's interrogations of Car-
los D. Juarez, Jr., as above detailed, the Respondent violat-
ed Section 8(a)(l) of the Act. See N.L.R.B. v: Super Toys,
Inc., 458 F.2d 180 (C.A. 9, 1972); Hendel Manufacturing
Company, Incorporated, .197 NLRB 1093 (1972).
1. The Discriminatory Discharges
The five discharges may not be viewed as isolated inci-
dents. Each was an integral part of a machination engi-
neered by the Respondent to discourage membership in a
labor organization and to stifle employees' zest (which was
apparent at the time) to engage in concerted activities for
their mutual aid and protection. The discharges were inex-
tricable occurrences and may not be disassociated one
from the other. That the Respondent knew or suspected
that its employees had been in contact with the Union
seems obvious from Salgado's gratuitous remark to Patlan,
"We don't want a union in here." Moreover, Stubblefield
admitted that Sosa, upon his discharge, warned him, "we're
going to have a union in here whether you like it or not."
After this remark there can be little doubt that the Respon-
dent knew a union had been in the picture and its actions
thereafter cannot be defended on the ground that it had no
knowledge of union activity." In any event, in that a union
was in the offing, the discharges which were unlawful un-
did not mention this deficiency in his testimony even though he was asked 25 Esquivel and Juarez were discharged after Stubblefield learned from
several times on cross-examination to specify what work Esquivel could not Sosa that a union was in the picture . Had Patlan and his wife been dis-
perform . charged prior to Sosa 's discharge (a circumstance which is unclear in the
record) the same situation would have existed.
CARRIZO MANUFACTURING CO. 181
der Section 8(a)(1) of the Act inherently discouraged em-
ployees from becoming members of the Union.
Respondent concedes that, if Patlan and Juarez were not
supervisors, they were wrongfully discharged. However, as-
suming, arguendo, that these employees were supervisors,
their discharges were nevertheless in violation of Section
8(a)(l) of the Act and the remedy would be the same. The
discharges of Patlan and Juarez were part of the
Respondent's strategy to squelch its employees' concerted
activities and dissuade them from a movement toward the
Union. Their discharges had a tendency to deter employees
from engaging in concerted activities and furthering any
union organizational aspirations. The discharges were an
integral part of a pattern of conduct aimed at penalizing
employees for exercising their rights under the Act. The
grounds utilized by the Respondent to substantiate the dis-
charges of Patlan and Juarez were advanced for the pur-
pose of concealing its real motive; i.e., to stamp out con-
certed activity and stymie the prospects of employee union
affection. See Krebs and King Toyota, Inc., 197 NLRB 462
(1972); Miami Coca Cola Bottling Company d/b/a Key
West Coca Cola Bottling Company, 140 NLRB 1359 (1963);
and Fairview Nursing Home, 202 NLRB 318 (1973), en-
forced 486 F.2d 1400 (C.A. 5, 1973); 26 N.L.R.B. v. J. B.
Martin Company, 395 F.2d 690 (C.A. 4, 1968).
The discharge of Rebecca Patlan fell in the
Respondent's same pattern of misconduct and was in vio-
lation of the Act. Her discharge manifests the
Respondent's penchant toward violating the Act in order
to scotch its employees' resort to collective endeavor; for
an employer may not discharge a relative of an employee
engaged in protected concerted or union activity if the dis-
charge is related, as it was here, to such activity. Tolly's
Market, Inc.-Ben Franklin, 183 NLRB 379 (1970); Golub
Bros. Concessions, 140 NLRB 120 (1962); The Colonial
Press, Inc., 204 NLRB 852 (1973); Big Y Supermarkets, 173
NLRB 405 (1968); and Champion Papers, Inc. (Ohio Divi-
sion) v. N.L.R.B., 393 F.2d 388, 395 (C.A. 6, 1968).
Sosa's automobile was parked where Salgado could have
seen it while Sosa was attending the employees' meeting at
the Texas Migrant Council building. Esquivel was standing
"facing toward a picture window" in the same building
while Salgado passed the building three times. Thus, since
it may reasonably be inferred that Salgado reported these
facts to the Respondent, it appears no coincidence that
Sosa and Esquivel were chosen for discharge.
While Sosa's and Esquivel's discharges were a part of the
Respondent's pattern of misconduct there are other factors
which establish that the Respondent's "real motive" 27 in
26 In the light of McClain's interrogation of Juarez and the reasons given
for his discharge, the following language from N.L.R.B. v. Brookside Indus-
tries, Inc., 308 F.2d 224, 228 (C.A. 4, 1962), is appropos: "[His] discharge
... had the effect of interfering with and restraining the unionists in their
membership by frightening them with reproof of a supervisor for not report-
ing on union activity." See, also, N.L.R.B. v. Better Monkey Grip Company,
243 F.2d 836 (C.A. 5, 1957).
27 "[T]he 'real motive' of the employer in an alleged §8(a)(3) violation is
decisive...." N.L.R.B. v. Brown d/b/a Brown Food Store, 380 U.S. 278,
287 (1965). "It is the 'true purpose' or 'real motive' in hiring or firing that
constitutes the test" Local 357, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Mo-
tor Express] v. N.L.R.B., 365 U.S. 667, 675 (1961).
discharging Sosa and Esquivel was unlawful. Sosa's dis-
charge occurred shortly after he had attended and invited
employees to attend a union meeting and within 1 workday
after the employer had learned of its employees' organiza-
tional activities.28 Sosa's discharge followed the expression
of Stubblefield's dissatisfaction with Sosa's attitude as it
was reflected in an employee protest and an admonition to
McClain to "keep an eye on him." While the credible evi-
dence indicates that Sosa was warned only one time in
respect to the speedup of the cycling of his presser, Stub-
blefield maintained that he was discharged after "several
warnings." Stubblefield's stretching of the truth in this re-
gard adds weight to the inference that Sosa's discharge was
of a pretextual nature as does the fact that Stubblefield,
although he was asked, failed to reveal to Sosa the alleged
real reason for his discharge in the post-discharge conver-
sation. While the Respondent implied that Sosa had med-
dled with the timer to increase his piece rate earnings, such
implication has no factual support because on the day of
his discharge he was not on a piece work rate. Thus Ray
must have known Sosa lacked this incentive and probably
had not fiddled with the timer. Moreover, if Sosa's alleged
meddling had been the real reason for his discharge it is
unreasonable that Ray would have permitted Sosa to oper-
ate the presser, which Ray' claimed would have produced
defective work, from Monday morning when Ray first ob-
served the fast cycle until Monday afternoon at almost 4
o'clock. If Sosa's machine was out of cycle, Ray unexplain-
ably paid it little heed, which indicates that either the pres-
ser was not out of cycle, Ray had not observed it, or Ray
considered that it was not producing defective work. In-
deed there is some question whether Sosa's presser was out
of cycle to the extent of producing poor quality since on
the day of Sosa's discharge Stubblefield "had been observ-
ing [him] all day and he wasn't satisfied with [his] emphasis
on the job." Surely if Sosa's presser had been detrimentally
out of cycle Stubblefield's practiced eye would have ob-
served it and he would have corrected it. Moreover, Mc-
Clain's remark to Juarez that Sosa was "working too slow"
does not indicate that Sosa was operating the presser at a
detrimental speed. It is further significant that Ray caused
the discharge of Sosa without accosting him with his al-
leged infraction or making an inquiry as to the cause of the
alleged excessive speed of the presser.29 Sosa was denied an
opportunity to respond to the charge against him and at his
postdischarge confrontation with Stubblefield, Stubblefield
failed inexplicably to reveal what later the Respondent
claimed was the "real reason" for Sosa's discharge. The
"real reason" for Sosa's discharge was to discourage- its
employees' organizational activity protected by the Act.
Whether the Respondent knew of Sosa's organizational ac-
tivity is immaterial in fixing the Respondent's guilt since
Sosa's discharge, which was without justifiable cause and
inextricably a part of the unlawful discharges of Patlan and
28 The discharge of an activist hard on the discovery of organizational
activity "strongly indicates" that the discharge was unlawfully motivated.
N.L.R.B. v. Overnite Transportation Co., 308 F.2d 284, 287 (C.A. 4, 1962).
29 "Perhaps most damning is the fact that [the employee was] summarily
discharged after reports of . . . misconduct . . . without being given any
opportunity to explain (his conduct] or give [his] versions. United States
Rubber Company v. N.L.R.B., 384 F.2d 660, 662 (C.A. 5, 1967).
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his wife, was effected by the Respondent for the purpose of
discouraging organizational activity and inherently accom-
modated such unlawful purpose ,30 a fact which the Re-
spondent must have reasonably known . Such conduct
bears its own indicia of intent.31 The Respondent 's claim
that "the sole motivating factor behind Sosa 's discharge
was a work -related reason " is at odds with the credited
record herein and is not well taken.
Esquivel 's discharge likewise falls within the pattern of
the Respondent 's misconduct . In the light of this pattern
Esquivel was a likely candidate for discharge for at least
three reasons : ( 1) He was an activist in rounding up em-
ployees for the employees ' meetings ; (2) As a mechanic's
helper he had full run of the plant and thus the opportunity
was available for spreading the word; (3) As an inexperi-
enced mechanic 's helper there were arguably grounds for
his discharge . Ray discharged Esquivel "for poor perfor-
mance , including failure to have necessary tools." 32 In re-
spect to Ray's complaint about the absence of tools, Ray
admitted that the Respondent had not made it a require-
ment that employees have tools. Moreover , Kane had of-
fered Esquivel the use of his tools and "at that time" the
Respondent had "bought a full set of tools" which it had
"for the mechanics ." Thus this reason for Esquivel's dis-
charge advanced by the Respondent was false.
As to the charge of poor performance , albeit Stubble-
field maintained that Esquivel was discharged "after sever-
al weeks of this type of performance," Esquivel had re-
ceived no warnings nor had Head Mechanic Kane, who
supervised him, complained of poor performance .33 Indeed
Esquivel had been employed for only 4 weeks which seems
a rather brief period for an employee to have become profi-
30The Respondent insists that Patlan was not told the truth in respect to
the reason for his discharge, because to have informed him that "he was
being discharged for concerted activity ... might have had a tendency to
dissuade rank-and-file employees." The Respondent's concern has a spe-
cious ring since it would have been a dull employee indeed who would not
have connected the discharges of Patlan and his wife, otherwise satisfactory
employees, on December 10, 1973, to their attendance at the employees'
meeting on December 6 and 7, 1973. To conclude otherwise would stretch
credulity to its breaking point.
11 Cf. Erie Resistor Corporation v. N.L.R.B., 373 U.S. 221 (1963); Signal
Oil and Gas Company v. N. L. R. B., 390 F.2d 338 (C.A. 9, 1968).
. an employer's protestation that he did not intend to encourage or
discourage must be unavailing where a natural consequence of his ac-
tion was such encouragement or discouragement . Concluding that en-
couragement or discouragement will result, it is presumed that he in-
tended such consequence . In such circumstances intent to encourage is
sufficiently established . (The Radio Officers' Union of the Commercial
Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17, 45.1
And where as, here , the employer's conduct causes an employee to
suffer adversely as the result of his espousal of or adherence to a union,
such conduct has the inherent effect of discouraging union activity and
carries with it the implication of the required intent . Specific evidence
of intent is not an indespensible element of proof of violation of §
8(a)(3) and an employer's protestation , in such circumstances , that he
did not intend to discourage union adherence or activity is unavailing.
Cf. Radio Officers' Union, etc. v . N.L.R.B., 347 U.S. 17, 45, 74 S. Ct. 323,
98 L.Ed. 455; Local 357, International Brotherhood of Teamsters, etc. v.
N. L. R. B., 365 U.S. 667, 675, 81 S.Ct. 83, 85, 6 L.Ed.2d 11. (N. L. R. B. v.
Merchants Police, Inc., 313 F.2d 310, 312 (C.A. 7, 1963).1
32 Resp . br., p. 11.
33 Stubblefield 's testimony is viewed as a subreptious attempt to enhance
the Respondent 's defense.
cient in the care of machines some of which were so com-
plicated as to require Head Mechanic Kane's attendance at
a seminar concerning repair and maintenance of the Reece
buttonhole machines.
It is clear from the credible evidence that Rios, upon
whom Ray claimed he relied for the action taken, had not,
by his own admission, observed the work of Esquivel to an
extent necessary to have formed a fair opinion as to his
work performance. It is doubtful whether Rios and Ray
discussed Esquivel's work performance. As noted Rios is
not a credited witness nor is Ray a credible witness insofar
as his testimony relates to the reason for Esquivel's dis-
charge.
The absence of Kane as a witness is an additional factor
which contributes to a finding that Esquivel's discharge
was pretextual. Kane had approved the hire of Esquivel,
and had assumed the role of his teacher. Certainly he
would have been the ideal witness to have testified as to
Esquivel's future worth as an employee to the Respon-
dent.34
Accordingly it is concluded that Esquivel was discharged
in violation of Section 8(a)(1) and (3) of the Act.
J. The Respondent's Grant of Benefits
The Respondent's expedited 35 grant of benefits an-
nounced December 12, 1973, contemporaneous with the
discharge of five employees, activists in employee organi-
zation, was the coup de grace administered to arrest any
movement of the employees toward the Union. That such
was the Respondent's purpose is implicit in the language
used by Stubblefield when he emphasized to the employees
that since 1966 Respondent's employees had said "no" to
unions and in the next breath bade the employees work
together with the Respondent so that the "happy news"
which he announced could be repeated again . Unmistak-
ably "happy news" depended on no union.'No employee
could have missed such a clear implication.
For its coup de grace the Respondent struck with the
"fist inside the velvet glove" 36 and its 8-year record of non-
union organization since 1966 in its plants was preserved,
at least in the Carrizo Springs plant.
In that the Respondent's grant of benefits interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent
thereby violated Section 8(a)(1) of the Act.
The Respondent's unfair labor practices herein found
have furthered its policy "to combat" labor unions in its
unorganized plants and gratified its antiunion animus 37 of
34 "The production of weak evidence when strong is available can lead
only to the conclusions that the strong would have been adverse . Silence
then becomes evidence of the most convincing character ." Interstate Circuit.
Inc. v. U.S., 306 U.S. 208, 226. See also Threads-Incorporated, 124 NLRB
968, 971 (1959).
35 Provoked by employee dissatisfaction and meetings Stubblefield asked
Lipshie to "speed up" and "hurry this thing up a little."
6 See N. L. R. B. v. Exchange Parts Co., 375 U.S. 405 (1964).
37 The Respondent 's antiunion animus was clearly demonstrated in this
case by its quick action in dismissing Patlan and his wife when it learned of
Pedro Patlan's employee organizational efforts . In this regard so anxious
was the Respondent to scotch its employees' organizational aspirations that
it summarily fired Patlan solely upon the representations of Salgado without
allowing Patlan to relate his side of the story.
CARRIZO MANUFACTURING CO. 183
long standing; "every equivocal act that was done may be
properly viewed in the light of respondent's animus toward
the effort to organize its men." N.L.R.B. v. Houston and
North Texas Motor Freight Lines, Inc., 193 F.2d 394, 398
(C.A. 5), cert. denied 343 U.S. 934 (1951).
As was noted by the Board (92 NLRB 417, 501) the
Respondent's unlawful conduct "discloses a fixed purpose
to defeat self-organization and its objectives."
CONCLUSIONS OF LAW
1. Obreros Unidos Independientes is a labor organiza-
tion within the meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to. be exer-
cised herein.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed them by Section 7
of the Act, the Respondent engaged in unfair labor practic-
es within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Pedro Patlan, Rebecca
Patlan, and Jose Sosa on December 10, 1973, Alberto Es-
quivel on December It, 1973, and Carlos D. Juarez, Jr., on
December 12, 1973, the Respondent engaged in unfair la-
bor practices in violation of Section 8(a)(1) and (3) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take affirmative action de-
signed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged Pedro Patlan, Rebecca Patlan, Jose Sosa, Al-
berto Esquivel, and Carlos D. Juarez, Jr., it is recommend-
ed that Respondent remedy such unlawful conduct. It is
recommended in accordance with Board policy 38 that the
Respondent offer said employees immediate and full rein-
statement to their former positions or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
and make them whole for any loss of earnings that they
may have suffered as a result of the discrimination against
them by payment to them of a sum of money equal to the
amount they would have earned from the date of their
discriminatory discharges to the date of an offer of rein-
statement, less net earnings during such period to be com-
puted on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and including interest at the rate of 6 percent per annum in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Accordingly, upon the basis of the foregoing findings of
38 See The Rushton Company, 158 NLRB 1730, 1740 (1966).
fact, conclusions of law, and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following:
ORDER 39
Respondent Salant Corporation, d/b/a Carrizo Manu-
facturing Corporation, Inc., Carrizo Springs, Texas, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees or
membership in the Obreros Unidos Independientes, or any
other labor organization, by unlawfully, discriminatorily
discharging any of its employees, or by unlawfully discrim-
inating in any manner in respect to their hire and tenure of
employment or any term or condition of employment in
violation of Section 8(a)(1) and (3) of the Act.
(b) Unlawfully interrogating its employees regarding
their union or concerted activities.
(c) Unlawfully granting wage and other employee bene-
fits to its employees for the purpose of dissuading its em-
ployees from organizing and supporting said Union or en-
gaging in concerted activities.
(d) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of their
right to self-organization, to form labor organizations, to
join Obreros Unidos Independientes or any other labor or-
ganization , to bargain collectively through representatives
of their own choosing, and to engage in concerted activities
for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any and all such
activities, subject to the union-security requirements of
Section 8(a)(3) of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Pedro Patlan, Rebecca Patlan, Jose Sosa, Al-
berto Esquivel, and Carlos D. Juarez, Jr., immediate and
full reinstatement to their former positions or, if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges, discharging if necessary any employees hired to re-
place them, and make them whole for any loss of pay that
they may have suffered by reason of the Respondent's dis-
crimination against them in accordance with the recom-
mendations set forth in the section of this Decision entitled
"Recommended Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its premises at the Salant Corporation d/b/a
Carrizo Manufacturing Corporation, Inc., Carrizo Springs,
Texas, copies of the attached notice marked "Appen-
39 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102
.48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dix." 40 Copies of said notice , on forms provided by the
Regional Director for Region 23, after being duly signed
by the Respondent 's representative , shall be posted by it
40 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading " Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced , or covered by any other material.
(d) Notify the Regional Director of Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.