Farah Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 31, 1970

187 N.L.R.B. 601 (N.L.R.B. 1970)

FARAH MANUFACTURING CO. 601
Farah Manufacturing Company and El Paso District
Joint Board , Amalgamated Clothing Workers of
America, AFL-CIO. Cases 28-CA-1977 and
28-CA-1886
December 31, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 6, 1970, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaged 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. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
dismissed. Thereafter, Respondent, the General
Counsel, and the Charging Party filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.
1. The Trial Examiner found, and we agree, that
Respondent unduly restricted the organizational
rights of employees to engage in oral union solicita-
tion by maintaining rules which prohibited all
solicitation in any working area of the plant during
nonworking time and which further denied employees
access to any work areas other than their own during
rest periods. The Trial Examiner's conclusion that
Respondent thereby violated Section 8(a)(1) of the
Act rests on the well-established principle that, absent
special circumstances not here claimed, employers
may not lawfully forbid employees from using their
own time to solicit for union organizational purposes
on plant premises. The Trial Examiner did not,
however, pass on whether that principle is also
applicable to Respondent's extension of its ban to the
signing of union authorization cards in working areas
during the employees' free time. Rather, he assumed,
"without deciding, that the [union authorization]
cards may be classified as union literature.. . ." As
the Charging Party's exceptions point out, this casts
doubt on whether the presentation to an employee of
a union authorization card for signature, in the course
of oral solicitation, is an act of "literature distribu-
tion," rather than an act of "solicitation" within the
meanings of the Board's relevant standards. The
distinction is a meaningful one in terms of legal effect.
Greater latitude is accorded employees to engage in
solicitation activity on plant premises than is accord-
ed for the distribution of literature. The latter activity
may properly be forbidden in working areas even
when engaged in on the employees' free time "because
it carries the potential of littering the employer's
premises, [and thus] raises a hazard to production
whether it occurs on working time or nonworking
time." i As above noted, however, solicitation is
subject to clearly lawful regulation and restraint by an
employer only if the solicitation takes place on the
employees' worktime.
In this case Farah's testimony plainly reveals that
Respondent improperly equates the general
"distribution" of authorization cards or organization-
al leaflets with the situation where an employee, in the
course of oral solicitation, asks another employee to
sign an authorization card and submits the card for
signature. We note, for example, that Farah explained
reprimands administered to employees engaged in
organizational efforts in the shipping room as being
prompted by the fact that "they [the employees] were
actually trying to get people to sign in the working areas
where they are not permitted to do any kind of
soliciting." (Emphasis supplied.) And, it was admit-
tedly in the context of this view of employee rights
that Farah told Respondent's vice president to
"advise the people they could not distribute cards in
working areas at any time."
It is true, of course, that as a matter of dictionary
definition, a union authorization card, because it is in
written form, may be regarded as "literature." But as
the Board has had occasion to comment, any analogy
which, in terms of legal effect, equates the solicitation
of signatures on authorization cards with the distribu-
tion of union literature, amounts to an attempt "to
exploit a semantic gambit."2 Such an assumption
ignores the real distinction between the two types of
organization techniques which form the backdrop for
the Board's decisional rules in this area. Union
literature is aimed at informing employees about
union matters and/or propagandizing about the
virtues of unionization, and its distribution contem-
Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 619
2 See Stoddard-Quirk Manufacturing Co, supra, p 620, fn 6
187 NLRB No. 83
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plates that the material will very probably be
discarded by the recipient once the message is read.
The purpose of the authorization card, however, is to
provide tangible evidence of effective solicitation, and
a request that an employee affix his signature to an
authorization card really completes the act of solicita-
tion. The presentation of an authorization card to an
employee for signature in the course of oral solicita-
tion is therefore necessarily an integral and important
part of the , solicitation process. And the card's
delivery to an employee by the solicitor-prompted,
as it usually is, by the solicited employee's oral
declaration of interest-normally contemplates signa-
ture upon receipt and the card's return to the
solicitor.3
In light of the foregoing, it follows that Respon-
dent's view of its employees' "signing-up" of others as
an act of literature distribution has no legal merit and
that its maintenance of a rule banning such activity, as
well as oral solicitation, in working areas during
nonwork time is in violation of Section 8(a)(1) of the
Act. We so find, and shall amend the Recommended
Order of the Trial Examiner accordingly.
2. We disagree with the Trial Examiner's dismissal
of that part of the complaint which alleges Respon-
dent maintained an unduly broad no-distribution rule
which, as applied to union literature, prohibited
employee distribution of such literature on off-duty
time during the plant workday in any part of the plant
premises.
As noted by the Trial Examiner, Farah admitted
that Respondent had "always prohibited distribution
for any reason, regardless of what the reason is,
during working hours.. . ." The Trial Examiner did
not, however, find this prohibition to be violative of
the Act since, in his view, "there is no evidence that
the rule, as expressed by Farah was, either in terms, or
substance, ever communicated to any employee." We
take a contrary view of the evidentiary facts.
As the Trial Examiner's Decision points out,
Respondent has never issued any written plant rules.
It has, rather, regulated the conduct of its employees
through oral rules. As appears from Farah's testimo-
ny, information concerning the content and operative
scope of its rules is imparted to its supervisors who are
charged with the duty of both making the rules'
requirements known to employees and enforcing
them in the event of breach. Although no employee
9 Wholly distinguishable , of course , is the situation where a union
proponent engages in wholesale distribution of union authorization cards
4 Member Fanning would find that such a rule by its mere existence
serves as an unlawful restriction on employee rights and consequently, he
would find the rule violative of Section 8 (a)(l) of the Act regardless of
whether or not it had been actually communicated to employees
5 N L R B v. Harold Miller, et al, 341 F 2d 870, 874 (C A 2), enfg 148
NLRB 1579
fi C.f G C Murphy Company, 171 NLRB No 45
Cf Lexington Metal Products Company, 166 NLRB 878 at 880
was called to testify on this subject, it is reasonable to
infer, and we find, that Respondent's rule relating to
the distribution of literature was, like its other plant
rules, in fact made known to the employees. Such an
inference is in our judgment especially valid where, as
here, Respondent has chosen to rely upon word of
mouth contact between management personnel and
employees as the means of communicating its plant
rules to employees.4
It cannot be gainsaid that the generalized reference
to "working hours" renders the precise scope of the
rule ambiguous. But, as has been judicially stated,
"the risk of ambiguity must be held against the
promulgator of the rule rather than against the
employees who are supposed to abide by it."5 Here,
the terms of the rule as stated may readily be
understood as prohibiting the distribution of union
literature by employees on their own time in any part
of the plant premises, including nonworking areas,
during the course of the working day.6 No justifica-
tion for so broad a restriction on the exercise of the
employees' organizational rights was claimed or
proved. Accordingly, the restriction constitutes an
unlawful restraint on employee statutory rights. As
the mere maintenance of the rule itself serves to
inhibit the employees' engaging in otherwise protect-
ed organizational activity,7 the finding of a violation
is not precluded by the absence of specific evidence
that the rule was invoked as of any particular date
against any particular employee.8
For all the foregoing reasons, we conclude that by
maintaining an unduly broad no-distribution rule
which employees may reasonably construe as prohib-
iting the distribution of union literature in nonwork
areas during nonwork time, Respondent violated
Section 8(a)(1) as alleged.9
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
Respondent, Farah Manufacturing Company, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order, as herein modified:
1. Insert the following in paragraph 1(b) of the
" Farah testified that he had advised supervisors to "turn their backs" if
they saw employees engaging in union solicitation or distribution activity
in nonworking areas He admitted, however , that information about the
rules' relaxation for purposes of permitting union activity was never
expressly communicated to employees
9 Chairman Miller disagrees with the majority on this issue In his view,
the Trial Examiner correctly concluded that the oral no-distribution rule
was not communicated to any employees, and finds no basis in the record
for any contrary inference Accordingly, he would dismiss this part of the
complaint allegation
FARAH MANUFACTURING CO. 603
Recommended Order immediately after the words
"orally soliciting any other employees":
and/or obtaining the signatures of employees on
union authorization cards,
2. Substitute the following for paragraph 1(e) of
the Recommended Order and reletter paragraph 1(e)
accordingly.
Maintaining a rule which prohibits employees,
when they are on off-duty time, from distributing
union literature in nonworking areas.
3. In fn. 57 of the Trial Examiner's Decision
substitute "20" for "10" days.
4. Substitute the attached Appendix for the Trial
Examiner's Appendix.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT in any other manner interfere with
any employee' s exercise of any such rights.
WE WILL NOT maintain a rule which prohibits
employees while they are on off-duty time from
distributing literature in nonworking areas.
The National Labor Relations Board has found
that we discriminated against Adan Gonzales by
discharging him, in violation of the National
Labor Relations Act, because he engaged in union
activity, and has ordered us to offer him full
reinstatement to his former job, or if that job no
longer exists, to a substantially equivalentjob, and
to reimburse him for any loss of pay he may have
suffered because of such discrimination.
WE WILL offer Adan Gonzales such reinstate-
ment, and reimburse him for his loss of pay,
together with interest thereon, in accordance with
the Board's Order.
FARAH MANUFACTURING
COMPANY
(Employer)
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board found that we have
violated the National Labor Relations Act and has
ordered us to post this notice.
The Act gives employees the following rights
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because such employee
has exercised any of such rights.
WE WILL NOT establish, maintain, or apply any
rule prohibiting or preventing any employee from
orally soliciting any other employee on our
premises and/or obtaining the signatures of
employees on union authorization cards, during
time neither is working nor required to be working,
to become or remain a member of, or support, or
be active in any union, or from discussing such
activity, membership in, or support of any union
during such time.
WE WILL NOT ask any employee any questions
about the exercise of any rights given him by the
Act in any manner that might interfere with such
exercise.
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
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 and U.S. Courthouse,
500 Gold Avenue, SW., P.O. Box 2146, Albuquerque,
New Mexico 87101, Telephone 505 -843-2507.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner. The issues in this
proceeding are whether Farah Manufacturing Company
(herein the Respondent or Company) discharged an
employee, Adan Gonzales, because of his union activities,
thus violating Section 8(a)(1) and (3) of the National Labor
Relations Act (herein the Act)'; and whether it violated
Section 8(a)(1) of the Act by (1) interrogating employees
concerning their union activities, (2) by promulgating,
maintaining, and enforcing a rule prohibiting its employees
from engaging in "discussion and solicitation for union
1 29 USC 151,etseq
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity," and in "distribution of union literature," at any
time on its property, and (3) by promulgating, maintaining,
and enforcing a rule prohibiting "nonemployees" (union
organizers not in its employ) from engaging in such
solicitation and distribution on its property.2
Pursuant to notice duly served by the General Counsel of
the National Labor Relations Board (herein the Board)
upon all other parties, a hearing on the issues was held
before me, as duly designated Trial Examiner, on January
14, 15, and 16, 1970, at El Paso, Texas. All parties appeared
through respective counsel, and were afforded a full
opportunity to adduce evidence, examine and cross-
examine witnesses, submit oral argument, and file briefs.3
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and considered
the respective briefs of the General Counsel, the Charging
Party, and the Respondent filed with me since the close of
the hearing, I make the following findings of fact.
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS;
JURISDICTION OF THE BOARD
The Company is a Texas corporation; maintains its
principal office and place of business in El Paso, Texas,
where it is engaged in the business of manufacturing and
distributing men's trousers and other garments, and is, and
has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
During "the last calendar year" preceding the issuance of
the complaints in this proceeding, the Company, in the
course and conduct of its business, sold products valued in
excess of $50,000 to customers located outside Texas;
shipped the products directly to such customers; purchased
products valued in excess of $50,000 from suppliers located
outside Texas; and caused such products to be transported
and delivered to El Paso, Texas, from locations in other
states. By reason of such interstate deliveries, shipments,
and purchases, the Company is, and has been at all material
times, engaged in interstate commerce, and in operations
affecting such commerce, within the meaning of Sections
2(6) and 2(7) of the Act. Accordingly, the Board has
jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party in this proceeding, El Paso District
Joint Board, Amalgamated Clothing Workers of America,
AFL-CIO (herein the Joint Board) is, and has been at all
material times , a labor organization within the meaning of
Section 2(5) of the Act. As its name indicates, the Joint
2 The allegations of unfair labor practice involved here are contained in
two complaints, one issued on November 4, 1969, and based on a charge
filed in Case 28-CA-1886 on May 12, 1969, and the other issued on
December 18, 1969, and based on a charge filed in Case 28-CA-1977 on
October 22, 1969 The two cases were duly consolidated by order of the
Regional Director for Region 28 on December 18, 1969 Copies of each
charge, each complaint, and the order of consolidation have been duly
served upon the Respondent
3 The General Counsel has filed a motion, dated February 25, 1970, to
amend the hearing record in specified particulars All other parties have
been afforded an opportunity to submit objections or other comment
Board is affiliated with Amalgamated Clothing Workers of
America, AFL-CIO (herein Amalgamated).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company operates manufacturing and related
facilities at three separate locations in El Paso. One of
these, bearing the address 8889 Gateway Boulevard West
(and referred to here as the Gateway plant or premises),
includes four structures, one of them the plant's communi-
cations center, and the others known, respectively, as
Building Nos. 1, 2, and 3; and space where employees of the
Company park their cars while at work.4 The issues here
involve only the Gateway plant and personnel employed
there
Operations at that plant, as at the Company's other
establishments, are subject to overall direction and
management by the Company's chief executive, William F.
Farah, who is its corporate president.
The labor force at the Gateway plant numbers about
3,000 employees (2,999 at the time of the hearing), and has
not fluctuated significantly at any time material to the
issues. Most of these work in Building No. 1, and are
variously engaged there in production or shipping opera-
tions. The structure also contains a cafeteria which is used
by employees during their lunch periods. Building No. 2
contains repair and maintenance facilities, and Building
No. 3 houses a sewing room and another cafeteria.
The shipping department, which is located in Building
No. 1, has a complement of about 300 employees and nine
supervisors. One of the latter, Jose Serna, is the superior of
the others, and has overall responsibility for the operation
of the department. He has authority to hire and discharge
personnel, and is, and has been at all material times, a
supervisor within the meaning of Section 2(11) of the Act.
Adan Gonzales entered the Company's employ on June
6, 1960, worked in shipping department functions through-
out his employment, and was discharged by Serna on
October 21, 1969, under circumstances to be described
later.
During much of his employment, Gonzales worked as
one of about 90 shipping department "pullers," that is,
employees who "pull" (select) trousers from stock,
according to instructions as to size, color, and style, and
assemble them for subsequent shipment. For about the last
three years of his employment, his "primary job" was to
take inventories of stock to be "closed out" (discontinued).
In such work, he functioned directly under Serna's
supervision. In the customary close-out procedure, Serna
would give Gonzales the lot number of the stock in
addressed to the motion, but have not done so The motion is granted, and
the record is amended in the particulars requested The hearing transcript
is garbled in various other respects, but as the record sufficiently reflects
the evidence, rulings and issues, I dispense with any correction beyond the
particulars set forth in the motion
4 In the course of his testimony. the Company's president, William F
Farah, referred to Building Nos I, 2, and 3 as three plants, but the three
buildings are integrated facilities related to the production and shipment of
the Company's product from the Gateway premises In any event, for
convenience of reference, the facilities at the Gateway location are treated
here, as at various places in the testimony, as a single plant
FARAH MANUFACTURING CO.
question, and the latter would then make a count of all the
trousers in that number; record the results on "packing
slip" forms; and upon completion of the inventory, take the
slips to Serna who would make an "assortment" (a
determination of the quantities in which the discontinued
stock was to be boxed). The inventoried stock would then
be pulled from the shelves by various pullers who were
detached, as needed, from other pulling chores by their
respective supervisors and assigned by them to close-out
pulling. The pulled garments would then be packed and
shipped by other shipping department personnel.
When he was not engaged in taking inventories, Gonzales
would join the close-out pullers, sharing their work. One
such puller (Guillermo Chavez) testified that Gonzales was
a "sort of . .. group leader" in the work, and there are
some generalizations in the testimony that he would give
the close-out pullers "instructions" as to "what" to pull and
"how" to do it, but specifics of these are lacking beyond the
fact that he would transmit information as to "what"
garments were to be pulled, and instructed a puller, who
was newly assigned to close-out pulling, in the work.
Gonzales' starting rate in 1960 was $1 an hour, and
during the period of some 9 years of employment that
followed, he was given 13 wage raises, receiving 2 in some
years. His final increase, given about 3 months before his
dismissal brought his scale to $2.70 an hour. All of the
increases were based solely on merit, and granted upon
Serna's recommendation. As Serna conceded in his
testimony, Gonzales was "a loyal and good worker over the
years."
The Company also gave Gonzales eight annual Christ-
mas bonuses, starting with one for some $76 in 1961, and
increasing in amount each year thereafter, until his final
bonus in 1968, amounting to about $329. As Farah testified,
Gonzales' work performance was "the most substantial
factor" in the management decision to grant these bonuses.
B. Gonzales ' Union Activities; the Alleged
Interrogation of Employees; and Gonzales ' Discharge
On August 25, 1969,5 Gonzales telephoned an Amalga-
mated (or Joint Board) representative named Antonio
Sanchez, and sought his assistance in organizing the
Gateway plant employees, telling Sanchez that "a large
group of men" wished to organize. Sanchez thereupon
invited Gonzales to attend a meeting of the Joint Board at
an El Paso hotel on August 28. Gonzales attended, and the
upshot was that Sanchez told him, in effect, that if Gateway
employees wished to organize, he could arrange a meeting
for that purpose at the hotel.
Such a meeting was then arranged for September 24, and
held on that date, with some 42 employees of the Gateway
plant's shipping department, including Gonzales, in
attendance. Most of those present came on the initiative of
Gonzales, who had visited them at their homes to invite
them to the meeting
Another meeting was held at the same location on
September 30. About 37 Gateway shipping department
employees, including Gonzales, attended. Gonzales and
605
Sanchez addressed the meeting, expressing the view, in
substance, that it was necessary for the employees to
organize, and that they could thereby gain benefits they
lacked. All of the Gateway employees present signed
"union membership cards," and constituted themselves an
"organizing committee ," with the aim of unionizing
Gateway plant employees.
Prior to his discharge some three weeks after this meeting,
Gonzales secured signatures of 20 Gateway employees on
"union authorization cards." All but 3 or 4 of the cards
were signed away from the Gateway premises.
Another meeting of Gateway employees (apparently
members of the organizing committee), including Gonzales,
was held on October 15, under the Joint Board's auspices at
a "union hall" in El Paso. Gonzales had notified the others
of the meeting, speaking to some at the plant during lunch
and rest periods, and others at their homes. The record does
not describe what took place at this meeting, but it is
evident from surrounding circumstances that its purpose
was to discuss organization of the Gateway plant
employees.
On the following day, October 16, Serna approached
Gonzales at work, took him to a place among the stock
shelves in the shipping department for a private conversa-
tion, and told him: "Now that we are alone and nobody can
hear us, I want you to be man enough to tell me if it is true
what they just told me that you are not satisfied with your
salary, that you are not happy with your job." Gonzales
replied that he was "happy" and that Serna's information
was incorrect, and asked Serna where he had secured his
contrary information. Serna said that he was not "going to
get that man (his informant) involved in this," and that he
wished that Gonzales tell him if the information was
correct. Gonzales repeated his denial. Serna thereupon
produced a "little card," listing all the wage increases
Gonzales had received over the years, and said that
Gonzales had recently received an increase to $2.70 an
hour, and had not been omitted from "any of the raises"
given the Company's employees, and that the management
was planning to pay him more money the following year.
Then, stating that he and Gonzales were friends, Serna
asked Gonzales whether there were "any problems that you
want to tell us," and, receiving a negative reply, told
Gonzales that if he had "any problem" to discuss with
Farah or the Company's vice president, William Conroy,
an appointment would be made with either without
question as to his purpose. Gonzales replied that he had
nothing to say to either, and Serna then remarked, "Well,
what do you want, everybody to earn as much as you are
earning?" During the course of the conversation, which
lasted about 15 minutes, Serna also described benefits the
Company provided for Gonzales as an employee, including
free medical care for himself and family; referred to
Gonzales' "big family," coupling this to a query whether
Gonzales had "anything to tell us"; and stated, "We are
going to have to work together because if you start pulling
to one side and we start pulling the other, we are not going
to get along right."
On the following morning, while Gonzales was at Serna's
5 Unless otherwise indicated, all dates mentioned below occurred in
1969
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desk on an errand, Serna told Gonzales that he thought that
there "was something wrong" with Gonzales, that he sensed
that Gonzales had "something to tell" him, and that
Gonzales was "not working as usual; and asked the latter
"if there was anything" he wished to tell him. Gonzales
replied in the negative, and asked Serna, "What do you
mean, what is wrong?" Serna responded, "Oh, nothing,
that's all right."
On a number of additional occasions that day, when
Gonzales' duties took him to Serna's desk, Serna asked
Gonzales whether the latter had "something to tell" him,
and Gonzales replied that there was "nothing." 6
About quitting time that same day, Serna interrogated
another shipping department employee, Luis Alvarez, in a
vein much like that of the interrogation of Gonzales.
Alvarez was a member of the Union's organizing commit-
tee, having attended some of the meetings previously
described, including the one on September 30, when the
committee was formed. On the occasion in question, Serna
summoned Alvarez to a place among the stock shelves in
the shipping department; told Alvarez that he "looked real
demoralized and run down"; and asked Alvarez "what was
the problem," stating that he "would help out." Alvarez
replied that he "was all right," and that "there weren't any
problems at all." Serna then said that it could not be "the
work" that was troubling Alvarez "because the work was
slow," and that "there must be something else bothering"
Alvarez; and asked the latter whether he "would ... like to
tell (Serna) about it." Alvarez reiterated that he was "all
right." The conversation, which lasted some 10 to 15
minutes, continued to follow substantially the same course,
Serna repeatedly making substantially the same inquiries of
Alvarez as those described above.7
On the morning of October 20, a shipping department
supervisor, Norman Ekery, who did not supervise Gonzales
and was subordinate to Serna, approached Gonzales at
work and asked him if anything was "wrong." Gonzales
asked for the reason for the inquiry, and Ekery said, in
substance, that it seemed to him that Gonzales was not
doing his work "as usual," and that not enough close-out
stock had been pulled. Gonzales in effect expressed a
contrary view, supporting it with a reference to the volume
of recently pulled garments.
About an hour later, Ekery summoned Gonzales to his
desk, and displaying a sheet with some figures on it, and
mentioning a figure (not set forth in the record), told
Gonzales that "(t)hey are after me in the office because you
didn't pull enough Friday" (October 17). Ekery did not
hand the paper to Gonzales, but placed it on his desk, and,
so far as appears, nothing more passed between them.
Later that day, Serna gave Gonzales a close-out
6 Findings as to the conversations between Serna and Gonzales on
October 16 and 17, described above, are based on uncontradicted
testimony by Gonzales
r Findings as to the conversation between Alvarez and Serna are based
on Alvarez' undisputed testimony
8 There is also some conflict whether Lopez worked with Gonzales on
the inventory (although there is no dispute that both were members of a
group that did close-out pulling in the week or two preceding Gonzales'
discharge) According to Serna, "only" Gonzales took inventories in the
month preceding the latter's discharge, and in a prehearing statement he
gave a representative of the General Counsel, Gonzales said that he and
Serna were "the only two who did this work " Gonzales, who testified that
inventory assignment , and the latter worked at it with
another puller, George Lopez. The time of the assignment is
in dispute, Gonzales testifying that it was about 3 p.m., and
Serna that it was about noon.8
There is conflict, too, as to Serna's remarks in discharging
Gonzales on the following day, October 21. Gonzales
testified that at about 9 a.m. that day, while he was at work
with Lopez on the inventory task assigned the previous day,
Serna called him on the plant telephone, and asked him
what he was doing; that he said he was taking inventory,
whereupon Serna told him to come to his desk, and bring
his inventory papers with him; and that he came to Serna's
desk, where the latter told him that "we've had a lot of
trouble with you in the office," that the "office" was after
him because Gonzales "did not pull enough," and that he
was therefore discharging Gonzales.
Serna agrees that he had a talk with Gonzales on the
occasion of the discharge, although claiming that it
occurred at about 10 a.m., and his version is that he
summoned Gonzales and asked him if he had completed
the inventory assigned the day before; that receiving a
negative reply, he told Gonzales that he had been at the
task for seven or eight hours, whereas it should have taken
two and a half or three hours; and that Gonzales said that
the time he had taken was "the best" he could do, to which
Serna replied, "If that is the best you can do, I have no
alternative but to let you go." In Serna's version, that was
the end of the conversation.
Passing the conflicting testimony for later resolution,
there is no dispute that upon conclusion of the conversa-
tion, Serna escorted Gonzales to the timeclock, punching
out for the employee, and then to the office where a clerk
processed Gonzales' termination records and pay.
The General Counsel, pointing to Gonzales' many years
of employment, the high regard in which Serna held his
work over the years, the many merit increases and bonuses
given Gonzales, the absence of any prior warning of
dismissal, and his role as a union activist, maintains that
Gonzales was discharged for union activity.
The Respondent, on the other hand, stressing a
disclaimer by Serna of any knowledge of such activity by
Gonzales prior to the dismissal, maintains that there is no
evidence that the management had such knowledge; and,
judging by Serna's version of his remarks in discharging
Gonzales, claims that Gonzales was discharged because
Serna was dissatisfied with the time Gonzales was taking
with an inventory task assigned on October 20, and with
Gonzales' reply, when criticized for the alleged time lag,
that he was doing his best. The Respondent also produced
from its files a document described by Serna as Gonzales'
"production record" for 1969. It contains various entries
other pullers "would help" him make inventories , and that Lopez had
worked with him on the occasion in question , explained that what he
meant by the preheating statement was that he was the only one who took
the inventory results to Serna Serna supervised other supervisors, and
through them, hundreds of shipping department employees, and it is
plausible that one or another of the many pullers in the department who
were shifted about from one task to another, as needed , would on occasion,
without Serna' s knowledge , work with Gonzales in making an inventory
Notwithstanding the prehearing statement , bearing in mind that there is no
dispute that Lopez worked with Gonzales in close-out pulling over a period
of a week or two before the discharge , I find credible Gonzales' testimony
that Lopez helped him with the inventory in question
FARAH MANUFACTURING CO.
attributing errors or other performance shortcomings to
Gonzales in the course of the year The entries, and the
effect to be given to them, will be discussed at a later point.
As the Tenth Circuit has pointed out, admission by an
employer that he has discharged an employee for union
activity is rare, and, thus, such discrimination "must .. ,
usually be proved by circumstantial evidence" (N.L.R.B. v.
Betts Baking Co., 380 F.2d 199, 204). And it is well
established, too, that management knowledge of an
employee's union activity need not be established by direct
evidence, but may be inferred from surrounding
circumstances.9
Such circumstances are both present and compelling
here. Gonzales played a primary role in bringing about the
union organizational meetings that took place within a few
weeks preceding the discharge. Most of some 42 employees
who attended the September 24 meeting came on his
initiative, and at least some of these formed themselves into
an "organizing committee" of substantial size at the
September 30 meeting, which was addressed by Gonzales
who urged those present to organize to secure additional
employment benefits. And it is noteworthy that the start of
Serna's repetitive queries of Gonzales whether he had
anything to tell the management came on the day following
the union meeting of October 15, that Gonzales had given
advance information about the meeting to employees at the
plant; and that Serna prefaced his private interrogation of
Gonzales on October 16 with a disclosure that an informant
had told him that Gonzales was dissatisfied with his wages
and his work.
It matters not that Serna did not use the word "union," or
any derivative of the term, or any synonym for it, in his
discussions with Gonzales, if reason correctly translates his
repetitive acts of interrogation as an inquisition into
Gonzales' union activities and interests. Serna's testimony
contains no explanation of the purpose of his queries (in
fact, he does not even refer to his discussions with Gonzales
on October 16 and 17), but, against the background of
Gonzales' antecedent union activities, a key to Serna's
objective is provided by his inquiry of Gonzales in the
October 16 discussion: "Well, what do you want,
everybody to earn as much as you are earning?" The
statement, notably the reference to "everybody," makes no
sense in its particular context except as a veiled or implied
allusion to union wage standards. The remark was preceded
by references by Serna to the wage increases Gonzales had
received and came on the heels of Serna's unsuccessful
efforts to induce Gonzales to open up to the management
with "any problem" Gonzales had, following hard upon
Gonzales' rejection of Serna's somewhat singular proposal
that Gonzales, who was but one of thousands of employees
in the Gateway plant, discuss such a "problem," at
Gonzales' convenience ("anytime" he wished), with the
9 See, for example, N L R B v Schell Steel Products, Inc, 340 F 2d 568,
572 (C A 5), A J Krajewski Mfg Co v NLRB, 413 F 2d 673, 676 (C A
I)
'. The very fact that Serna made repetitive efforts to induce Gonzales to
open up to the management regarding his union activities, going so far as
to propose that Gonzales discuss them at his convenience with Farah or
Conroy, not only warrants a conclusion that the management attached
substantial importance to them, but adds weight to Gonzales' account of
them Approaching his description of such activities with the caution one
should exercise in evaluating an alleged discriminatee's claims in such
607
Company's president or vice president; and it appears to
me that the remark, taking the form of a rhetorical query,
was an argumentative rebuke to Gonzales for promoting
unionization.
Summarizing the matter, I construe Serna's disclosure to
Gonzales on October 16 that he had learned from an
informant that Gonzales was dissatisfied with his wages
and work as an intimation that an informant had told him
that Gonzales was interested in unionization; and am
convinced, and find, that Serna's queries of Gonzales on
October 16 and 17 whether the latter had any "problem" or
"anything" to tell him or Farah or Conroy were aimed at
eliciting information from Gonzales regarding his union
activities and interests. It follows from this that I do not
credit Serna's disclaimer of any knowledge of union activity
by Gonzales, concluding, on the contrary, that Serna knew
or believed, prior to the discharge, that Gonzales was a
union activist. to
If Gonzales was discharged because the management
regarded him as a proponent of unionization, the end result
is the same whether the reason given Gonzales, as the latter
testified, was that the "office" was "after" Serna because
Gonzales was not pulling enough, or whether the discharge
conversation took the course described by Serna, focusing,
according to the sense of Serna's testimony, on an alleged
time lag in an inventory begun by Gonzales the day before.
In either version, the reason given Gonzales is thin.
Serna's account would lead one to believe that he
discharged Gonzales immediately after the latter said that
he was doing the best he could with the inventory
assignment. But there is no evidence that Gonzales' manner
was insolent or otherwise offensive, or that he had been
loafing (Serna's claim as to the time that the inventory
should have taken is hardly proof that Gonzales had been
wasting time , for conceivably, he could have met some
impediment for which he was not to blame), and, in the
absence of such evidence, it burdens one's credulity to
believe that Serna would thus discharge Gonzales, despite
his many years of meritorious service, without at least
making some inquiry of him whether there was a reason
why he had been unable to make better time.
What is more, the Respondent's case is singularly lacking
in hard evidence either as to the proportions of the
inventory task in question or the impact of his pace in
performing it on the output of any other pullers or of any
packing or shipping employees. Although the Respondent
admittedly has a record of "exactly" how many garments
were involved in the relevant inventory count, it was not
produced, nor does Serna mention the quantity in his
testimony.ti (According to Gonzales, the inventory in-
volved about 15,000 pairs of trousers.)
To be sure, Gonzales' "production record" for 1969
(which sets forth production figures for relatively few weeks
matters, 1 am convinced of the credibility of Gonzales' account of his
union activities, and have made corresponding findings that he engaged in
them
" While it is not of critical importance whether the discharge came at
about 9 a in. as Gonzales claims, or 10 a m , as Serna testified, it may be
noted that although Serna punched Gonzales' time card after the
discharge, the Respondent did not produce the card, which could, perhaps,
shed some light on the issue, and provide some approximate measure at
least for the amount of time Gonzales had spent on the inventory on
October 21
608 DECISIONS OF NATIONAL
LABOR RELATIONS BOARD
of the year, and none for any material period) contains an
entry made by Serna , which states: "Very low production
for no. of men he has pulling 10-20," but the entry does not,
with clarity at least, support Serna's version of the discharge
conversation. Gonzales denies that Serna said anything
about delay in his inventory work, quoting Serna, instead,
as saying that the "office" was "after" him because
Gonzales had an insufficient pulling volume, and that he
was thus discharging him.12 The nub of the matter is that
the entry, in terms at least, says nothing about an inventory
(in contrast, it may be noted, to an entry for October 18),
and that its sense is in the vein of Gonzales' version of the
discharge conversation, rather than in that of Serna's
account, to the extent that it speaks of an inadequate
pulling volume. It would be stretching matters to construe
the entry as meaning that lagging inventory work had held
up the pulling volume of other close-out pullers; for, in the
first place, that is not what the entry says, and, in the
second, there is no evidence that any of the close-out pullers
were waiting on the inventory, or that their time was not
fully occupied with pulling close-outs already inventoried
In the light of what has been said, I am persuaded that
the alleged criticism of Gonzales for lagging in the
inventory assignment is an afterthought; and do not credit
Serna's account of his remarks in discharging Gonzales,
finding, instead, that the discussion took substantially the
course described by Gonzales.
The reason for dismissal given Gonzales, reflected in his
credited version of the discussion, is no less a pretext, in my
judgment, than the one reflected in Serna's rejected version.
The purported reason given Gonzales has some ambiguity
in the light of other aspects of the record, for its literal
meaning is that the "office" was critical of Gonzales'
production volume, whereas the thrust of the entry for
October 20, and of emphasis the Respondent places upon
Gonzales' relationship to six other close-out pullers with
whom he pulled garments in the last week or two of his
employment, is that he was to blame for a deficient pulling
volume by the group.
In either interpretation, the purported reason has a
tenuous air. For one thing, there is no hard evidence such as
the volume of garments pulled, or packing or shipping
records, comparative or otherwise, to support any claim of
deficient productivity, whether of Gonzales alone or of the
group. The Respondent's failure to produce information as
to the pulling volume, a matter peculiarly within its
knowledge, weighs against acceptance of the reason given
Gonzales for his dismissal , and correspondingly enhances
the credibility of testimony of four of the other pullers (Jose
Villagran, Manuel Bonilla, George Lopez and Guillermo
Chavez), all still in the Company's employ, to the effect that
those engaged in close-out pulling during the period in
question performed a "usual" amount of work.13 For
another matter, as regards the alleged responsibility of
Gonzales for the output of the group, there is, in fact, no
evidence that it was his function to prod them, or that he,
rather than their supervisors, had the responsibility for
setting their pulling pace. The characterization of Gonzales
as a "sort of ... group leader" by one of them, his
instruction of another who was newly assigned to close-out
pulling (and who, by the way, was also instructed in his
duties by Villagran), and his transmission of information to
other close-out pullers as to the garments to be pulled will
not serve as such evidence, nor will generalizations that it
was Gonzales' function to instruct pullers as to "what"
garments to pull, and "how" to do it, suffice.
Gonzales testified that between inventory assignments,
he "help[ed]" with the close-out pulling, and Serna himself
stated that Gonzales' "primaryjob" was to take inventories,
and that when he was not so engaged, he "would help" with
the close-out pulling. And, according to Villagran, in close-
out pulling, Gonzales "did the same work as the others."
The record leads me to conclude that the "instructions"
Gonzales gave other pullers were routine, consisting of such
functions as showing a novice how and what to do in
pulling close-outs, and transmitting information to other
pullers as to the garments to be pulled; that apart from such
routine tasks, his function between inventories was to do
the same work as the other close-out pullers; and that it was
not his function to direct the working pace of such pullers,
or otherwise to oversee their work.i4
Reaching that conclusion, and taking into account the
testimony of the four pullers regarding their output, and the
failure of the Respondent to present any figures concerning
the pulling output either of the group in question or of
Gonzales individually, I am unable to give any effective
weight to the selfserving "production record" entry for
October 20 as evidence of a lawful motive for the discharge.
I take much the same view of Supervisor Ekery's
comment to Gonzales on the morning of October 20 to the
effect that there appeared to be something "wrong" with
Gonzales because he was "not working as usual"; and of
Ekery's statement to Gonzales later that morning that the
"office" was "after" Ekery because Gonzales had not
pulled enough on the preceding Friday, October 17. The
record contains no figures to support this claim; there is not
even an entry, adverse or otherwise, for October 17 in
Gonzales' "production record"; 15 and, more to the point,
12 Gonzales describes the conversation both on direct and cross-
examination The version on direct examination does not depict Serna as
giving any reason for the termination , quoting him , instead , as saying,
we've had a lot of trouble with you in the office, they're after me
because I'm going to have to let you go" The use of "because" in that
context is unintelligible, and the transcript at that point appears to be
garbled I am satisfied that the thrust of Gonzales' relevant testimony,
particularly as evidenced by his version under cross -examination, is that
Serna said that the "office " was "after" him because Gonzales was not
pulling in sufficient volume, and that he was discharging Gonzales for that
reason
is
where the party on whom rests the burden of evidence as to a
particular fact has the evidence within his control and withholds it, the
presumption is that such evidence is against his interest and insistence
N L R B v Ohio Calcium Co, 133 F 2d 721, 727 (C A 6) See, also, 2
Wigmore § 285, and N L R B v Wallick, 198 F 2d 477, 483 (C A 3)
i4 The Respondent, it may be noted , makes no claim that Gonzales was
a supervisor within the meaning of Section 2 ( 11) of the Act, thus indicating
that it does not view the "instructions" he gave other pullers as responsible
direction of their work , requiring, in the language of Section 2(11), "the use
of independent judgment"
15 Although the Respondent's brief, by intimation, rather than by
express assertion , views Ekery 's comments as supporting its position that
Gonzales was discharged for lawful cause , it did not call Ekery as a
witness Ekery 's remarks to Gonzales are quoted by the latter on his direct
FARAH MANUFACTURING CO.
Serna, who says that he alone made the discharge decision,
makes no claim that he discharged Gonzales for a deficient
pulling volume on October 17 (or, for that matter, on any
other date), whether that of Gonzales as an individual, or of
any close-out pulling group.16
In both its evidence and its brief, the Respondent stresses
Gonzales' 1969 "production record" not only for its entry
for October 20, but for other entries made by Serna for
October. In all, the document contains seven entries by
him, imputing errors or other performance deficiencies to
Gonzales. The first notes a failure "to mark card" (not
elaborated) on May 22, and the remaining six fall within a
three-week period preceding the discharge, beginning with
an entry "wrong lot #" for October 2; and followed by
"wrong total" for October 7; then by "wrong sizes" for
October 10; next by "not pulling enough" for October 14;
then by "2 inventorys (sic) wrong" for October 18; and
finally by the entry for October 20, previously mentioned.17
Although the Respondent does not say so in so many
words, the thrust of its emphasis on the "production
record" is that the October entries serve as proof of a lawful
motive for the discharge. The claim is unpersuasive, quite
apart from the self serving nature of the entries, and the fact
that the document contains only one adverse entry by
Serna in the nine months of 1969 prior to October, while the
remaining six made by him all fall within a three-week
period substantially coincident with the period between the
union meeting of September 30, when the organizing
committee was formed, and the discharge. Gonzales
concedes that Serna brought errors in his work to his
attention on some seven or eight occasions during the
period, but, without furnishing details, he describes the
errors as "small" (stating, without contradiction, that he in
turn corrected Serna on many occasions when the latter
made mistakes such as errors in adding figures, and in lot
numbers and colors). The description takes on supporting
weight from the fact that Serna, notwithstanding Gonzales'
admission, gave repeated testimony to the effect that in the
month preceding the discharge, he did not discuss with
Gonzales any errors or other shortcomings in the latter's
work, although contradicting himself later with testimony
that he discussed each of the October entries with
Gonzales.is
In any case, it is a fact that Serna's testimony turns up no
claim that any of the errors or performance shortcomings
witness Ekery's remarks to Gonzales are quoted by the latter on his direct
examination by the General Counsel
ie The General Counsel and the Union do not expressly argue that
Ekery's remarks regarding the "office" attitude toward Gonzales' pulling
volume were cut from the same pretextual cloth as the reason given
Gonzales in discharging him, but that, by implication, appears to be their
position I see no need to pass on it in view of the fact that Serna makes no
claim in his testimony that he discharged Gonzales because of a deficient
pulling volume, although, as found above, that was the reason he gave
Gonzales in discharging him
i7 The "production record" also contains two "wrong color" entries for
January, and one attributing "very bad" pulling and an "aggressive"
attitude toward another person by Gonzales on July 9 The entries were
not made by Serna I dispense with further reference to them as it is clear
that the Respondent makes no claim that they had any connection with the
discharge
is Serna gave the following testimony on direct examination before he
identified the "production record "
Q (By Mr Duke) Prior to Mr Gonzales' discharge, did you have
609
he imputes to Gonzales in the "production record" was a
factor in the discharge. What Serna says in effect, through
his version of the discharge conversation, is that he
discharged Gonzales because of dissatisfaction with
Gonzales' reply, when criticized, that he was doing his best.
Moreover, Gonzales' "production record," so far from
negating a discriminatory motive for the dismissal, taken in
conjunction with the 1969 "production records" of some
other shipping department employees, adds weight to a
conclusion that the reason given Gonzales for his discharge
was a pretext. The "production record" for one (Francisco
Apodoca) contains 13 adverse entries. That for another
(Rodriquez Arroyo) sets forth nine. That for a third
(Heineman Alonzo) contains eight. And that for a fourth
(George Hadana) contains about a dozen. The Respondent
offers no explanation why these, each with a substantial
number of adverse entries, are still in the Company's
employ in contrast to the peremptory discharge of
Gonzales who had given the Company good service for
almost a decade, and won from it the many commendations
implicit in the numerous merit increases and bonuses given
him over the years.
The sum of the matter is that the entries in Gonzales'
"production record," and the alleged errors and shortcom-
ings they set forth, had no connection with the discharge,
and the very fact that the Company invokes the document
to justify the dismissal bolsters a conclusion that it is
endeavoring to conceal an unlawful motive.
The reason is to be found in Gonzales' union activities.
The record does not establish which of these had come to
the Company's attention, nor when it began to regard
Gonzales as a union activist, but Serna, who claims it was
he who made the discharge decision, was uncandid in his
denial of any knowledge of any union activity by Gonzales,
and, from what has been said, it is clear that by October 16,
at least, Serna knew or believed that Gonzales had become
a proponent of union organization.
Moreover, the course and tenor of Serna's repeated,
although veiled, efforts, notably on October 16, to induce
Gonzales to talk about his union activities amply warrant
an inference that the Company attached much importance,
and was hostile, to union organization, and was disposed to
bring substantial pressure to bear on Gonzales to supply it
with information regarding the organizational movement
under way at the Gateway plant.
one or more occasions to talk to Mr Gonzales about his work'
A (By Jose Serna) Yes, sir, several times
Q Let's just go back, let 's take a month again, let's say the
month prior to his discharge, could you estimate how many times that
you recall talking to Mr Gonzales about his work'
A Are you referring about his asking any kind of a question'
Q No, the quality of his work
A No, none at all
Q In other words, is it your testimony that during that period,
say, a month prior to his discharge, that you did not discuss with him
any mistakes or otherwise pertaining to his work'
A 1 don't believe so, sir
Q You did not discuss it with him'
A I don't think so
Later in his direct examination , Serna was shown the "production record,"
and testified that he discussed "every one " of his entries with Gonzales on
the day it was made
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pressure is evident. Serna is no minor figure at the
plant, but obviously of substantial rank in the supervisory
hierarchy, directing the work of nine supervisors and about
300 employees. He was pointedly secretive in choosing a
private setting for the inquisition of October 16, and highly
repetitive in his efforts to induce Gonzales to open up
regarding his union activities. These circumstances are of
themselves persuasive indications that the management
attached substantial significance to information it had
received, as Serna told Gonzales, that the latter was
dissatisfied with his job and wages or, in other words, as I
infer from the context of circumstances, that he had turned
to union organization. But any doubt about the matter, if
any remains, is dissipated by the fact that Serna went so far
as to attempt to persuade Gonzales to discuss "any
problem" (a veiled reference to his union activities) with the
highest echelon of the Gateway plant's management (Farah
or Conroy) at his own convenience; and resorted to
coercive carrot-and-stick methods to implement the
inquisition. Thus, in the course of the private conversation
of October 16, Serna said that the management was
planning to give Gonzales a wage increase the following
year; harnessed a reference to Gonzales' "big family" to a
query whether he had "anything to tell us"; and sounded a
note of menace with a statement that "(W)e are going to
have to work together because if you start pulling to one
side and we start pulling the other, we are not going to get
along right."
Viewing the whole record, notably Gonzales' many years
of meritorious service, his activist role in promoting union
organization among the employees, the course and tenor of
Serna's inquisition into Gonzales' organizational activities
and interests, the timing of the discharge, coming as it did
in the midst of the union organizational campaign among
the employees, and only a few days after Serna's fruitless
repetitive attempts to induce Gonzales to open up to the
management regarding his union activities and interests,
the peremptory nature of the discharge, and the indications
that the Company has resorted to pretext and afterthought
to justify it, I find that the Company discharged Gonzales
because it believed him to be a proponent of union
organization; and that by the dismissal it violated Section
8(a)(3) of the Act, and interfered with, restrained, and
coerced employees in the exercise of rights guaranteed them
by Section 7 of the Act, thereby violating Section 8(a)(1) of
the statute.
Although the General Counsel's claim of unlawful
interrogation involves only two employees, Gonzales and
Alvarez, I am unable to pin a de minimis label on the
conduct in question. Serna's interrogation of Gonzales on
October 16 was plainly coercive and, like the discharge,
which came soon thereafter, was an expression of the
Company's hostility to union organizational activity. In
fact, Serna's remarks on October 16 included a veiled threat
of discrimination against Gonzales if he persisted in union
activity. This, in my judgment, in the context of the
discussion as a whole, was the thrust of Serna's statement
that "if you (Gonzales) start pulling to one side and we start
pulling the other, we are not going to get along right." One
may reasonably expect, moreover, that Serna's high
supervisory status would give added force to his conduct.
Taking the factors I have mentioned into account, I find
that Serna's conduct in interrogating Gonzales on October
16 and 17, aimed, as found above, at eliciting information
from Gonzales regarding his union activities and interests,
the Company interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights, and thus
violated Section 8(a)(1) of the Act.
As for the interrogation of Alvarez by Serna on October
17, it is true that Serna did not use the word "union," nor
any derivative of the term or synonym for it, but that was
the case in the interrogation of Gonzales earlier that day,
and on the day before; and, as in Gonzales' case, one
should interpret Serna's meaning in the light of the whole
relevant record.
Alvarez, like Gonzales, was a member of the union
organizing committee, having joined it at the time of the
committee's formation little more than 2 weeks before the
episode in question. The interrogation of Alvarez appears
to have been less intensive than that of Gonzales, but it was
nevertheless repetitive, "going over and over" its subject
matter for some 10 or 15 minutes, according to Alvarez'
uncontradicted testimony, and was similar in basic respects
to the interrogation of Gonzales. In the course of his
discussion with each, Serna took a line with each to the
effect that something was amiss with the employee, and,
notwithstanding assurances by each that nothing was
wrong, continued to urge each to tell him what the
problems were.
The substantially similar interrogative courses taken by
Serna with Gonzales and Alvarez within a period of a day
or so points to a common purpose, and that view is
enhanced by the absence of any evidence that there was
anything wrong with Gonzales or Alvarez (the latter, on the
contrary, testifying credibly that there was nothing wrong
with his health to his knowledge, or that he was disturbed in
any way). The Respondent offers no explanation of what
led Serna to take the line that something was wrong with
Alvarez, nor of Serna's reason for insisting, after Alvarez'
assurance that he had no "problems," that "it's not the
work . .. there must be something else bothering you," and
then repeatedly soliciting Alvarez to "tell (him) about it."
Serna's testimony is altogether silent about the episode.
In the absence of such an explanation, the substantially
common interrogative pattern in Serna's discussions with
both members of the organizing committee warrants a
conclusion that he had a common purpose in interrogating
each, and I find that the purpose in Alvarez' case, as in that
of Gonzales, was to induce the employee to open up to
Serna with information regarding his union organizational
activities and interests. Thus I find that as a result of
Serna's conduct in interrogating Alvarez as to the latter's
"problems" and what was "bothering" him, the Company
interfered with the exercise of Section 7 rights of employees,
and thereby violated Section 8(a)(1) of the Act.
C. The Alleged Rules Prohibiting Discussion,
Solicitation and Distribution by Employees
Farah gave testimony to the effect that by unwritten rule
the Company forbids its employees to solicit other
employees for any purpose "at any time ," including rest
and lunch periods , in all "working areas" on the premises;
FARAH MANUFACTURING CO.
that this prohibition has been in effect throughout the
Company's existence, and communicated by supervisory
personnel to the employees; that, with certain exceptions
(to be described later), all of Building Nos. 1, 2, and 3 are
"working areas", and that the employees stationed in these
buildings have a 12-minute rest period each morning,
during which they are free to move about in or outside their
respective "working areas," but forbidden to enter any
other "working area," even if the employees in such other
area are also on their rest period. He defined "nonworking
areas" as the parking lots on the Gateway premises, the
cafeterias in Building Nos. I and 3, and a "center corridor"
in Building No. 1, which is some 500 feet long, and contains
time clocks used by about 2300 employees, and a corridor
(of unspecified dimensions) in Building No. 3, but he also
testified that he has regarded the corridor in Building No. I
as a "nonworking area" for the purposes of union
solicitation only since October 22, 1969, when he received a
telegram from Amalgamated setting forth a partial list of
the organizing committee's membership, that he did not
inform any employees of this modification; and that the
employees were never told of any right to solicit on the
Gateway premises, but that during the lunch period on
October 22, employees distributed union authorization
cards in the corridor of Building No. 1, and have done so
there "frequently" since that date, without interference
from the Company.19
I find, on the basis of Farah's testimony, that at all times
material to the issues here, the Company had in effect at the
Gateway plant (1) an unwritten rule forbidding all
solicitation, including that in the interest of union
organization, by employees at all times, including rest and
lunch periods, in the "working areas" of Building Nos. 1, 2,
and 3, as set forth in Farah's testimony described above; 20
and (2) another unwritten rule denying employees access to
all "working areas" other than their own during rest periods
in effect for them and for those stationed in such other
"areas", 21 and that both rules have been communicated to
employees at the Gateway plant.
It has been long established that "a broad rule banning
(oral union solicitation by employees) during nonworking
time is presumptively invalid." 22 That presumption plainly
applies to the prohibition of oral solicitation during lunch
and rest periods in the so-called "working areas" of the
Gateway plant, as Farah describes them. It applies, too, to
the rule prohibiting employees from entering "working
areas" other than their own during their rest periods and
those of the employees in the other "areas," for, as is
evident, the prohibition has the effect of reducing
19 However, according to Farah, he heard that on one occasion his
mother took some authorization cards from an employee who was passing
them out in the corridor, but promptly returned them at the suggestion of
the Company's counsel, who happened to be in the vicinity at the time
Apart from its hearsay character, this testimony adds nothing of substance
to the case, and I base no findings on it
20 At one point, Farah testified that all of the Gateway premises
constitute a "working area," but it is evident from his testimony as a whole
that for the purposes of the relevant issues here, he did not intend by his
generalization to designate the cafeterias, the two corridors and the parking
lots as "working areas " it is clear, moreover, that the locations he defines
as "working areas" retain that status in the Company's view even during
the times, such as lunch and rest periods, when work is temporarily
suspended in them
611
opportunities of the employees not only to solicit the
interest of others in unionization but even to discuss any
union subject in the plant on their free time. As the rules
tend to interfere with oral communication regarding
unionization among employees on their own time, it is
immaterial whether they are specifically designed to
achieve such a result, although it is worth noting that,
according to Farah, several days after employees had
distributed union authorization cards in the shipping
department on October 22, before the start of the workday
and during rest periods, as well as during working time, on
that date, the management "stopped" further distribution
of such cards, and the related solicitation of signatures, in
the department because these activities had taken place "in
the working areas where they are not permitted to do any
kind of soliciting"; 23 and that about a week or two after the
receipt of the telegram from the Union, Farah, as he
testified, having heard that three employees had been
distributing union authorization cards in "working areas"
(other than their own, according to the sense of his
testimony), told them that "they could not go into other
areas to distribute" the cards.24
The presumption has not been rebutted in the case of
either rule, for there is no evidence that either is necessary
to maintain productivity or plant discipline. In fact, Farah,
although offering the justification for the no-solicitation
rule that the management has a policy of not permitting
anyone to "impose" (himself) on anyone else for any
purpose," offers no reason for the rule forbidding
employees to enter "working areas" other than their own
during the time when they, as well as the employees in the
other locations, are on rest periods.
Nor is either rule redeemed by the fact that employees are
not prohibited from moving about freely during lunch and
rest periods in "nonworking areas," as defined by Farah, or
from discussing or soliciting interest in unionization in such
locations during free time ; or that the management has
tolerated union solicitation in the center corridor of
Building No. 1 since October 22.25 The right of an
employee to solicit the interest of another in union
organization, or otherwise discuss it with him, during the
free time of both does not turn on the coincidence that both
happen to be in what Farah defines as a "nonworking
area," and that view is made the more compelling by the
fact that the management has not expressly informed the
employees of the locations in the plant where they may
permissibly engage in such activities.
In summary, both rules are unreasonably broad in that
they unnecessarily restrict employees in the use of their free
21 It does not appear whether during the midday lunch period uniformly
in effect for them, employees are denied access to "working areas" other
than their own, and I thus make no finding on that subject
22 Stoddard-Quirk Mfg Co, 138 NLRB 615, 616-617, and cases cited
21 Characterizations by Farah of the solicitation and distribution of the
cards as 'interfering" with others, and as "disruptive ," were stricken as
conclusions The record contains no demonstration that such activities
prior to work or during rest periods (or for that matter , at any other time)
actually interfered with productivity or discipline
24 It does not appear whether the three employees were on their free
time when they distributed the cards.
25 N L R B v United Aircraft Corporation, 324 F 2d 128 (C A 2);
National Steel Corporation v N LR B, 415 F 2d 1231, 1234 (C A 6)
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time for oral promotion of, or opposition to, union
organization; and both thus interfere with the free exercise
of rights guaranteed employees by Section 7 of the Act.
Hence I find that by promulgating and maintaining each
rule, the Company has violated, and is violating, Section
8(a)(1) of the Act.26
I reach a different result, however, on the allegations that
the Company unlawfully prohibits the distribution of union
literature by its employees. For reasons set forth by the
Board in Stoddard. Quirk Mfg. Co., 138 NLRB 615, no-
distribution and no-solicitation rules are respectively
governed by different principles. Under Stoddard-Quirk
and subsequent cases, a nondiscriminatory rule forbidding
employees to distribute union literature during their free
time in "working areas" of a plant is not presumptively
invalid, whereas one banning distribution by employees on
their own time in "nonworking areas" is presumptively
unlawful.27
The evidence of a no-distribution rule applicable to
employees is relatively scant. Putting aside the prohibition
of the distribution of authorization cards in the shipping
department, substantially all that there is in the record on
the existence of such a rule is testimony by Farah that the
Company has "always prohibited distribution ... during
working hours." 28 This generalization neither expresses an
unlawful rule nor warrants a presumption of invalidity. It
serves no purpose to say that the rule is vague in that it does
not expressly exclude "nonworking areas" of the plant, and
that an employee could reasonably take "working hours" to
mean the workday, including its lunch and rest periods,
rather than actual working time ,29 for there is no evidence
that the rule, as expressed by Farah, was, either in terms or
substance, ever communicated to any employee. Such
evidence is not supplied by the fact that late in October the
Company "stopped" employees from further distribution of
cards in the shipping department. The record does not
establish the terms in which the prohibition was expressed
on that occasion; and, moreover, the term "nonworking
areas," as used in Stoddard-Quirk, refers to sites in a plant
where work is not customarily performed (such as, for
example, cafeterias and parking areas), and thus assuming,
without deciding, that the cards may be classified as union
literature, the relevant prohibition did not amount to a ban
on distribution in a "nonworking area." 30 In short, the
26 It would neither add to, nor detract from, the recommended remedy
here to determine whether the failure to notify the employees that they may
now solicit for union purposes during free time in the center corridor of
Building No I has had the effect, so far as the employees are concerned, of
continuing the previously unlawful prohibition for the corridor
21 E G , National Steel Corporation v N L R B, 415 F 2d 1231, 1233
(C A 6), Laidlaw Corporation v. N LR B, 414 F 2d 99, 103, 107 (C A 7)
IN There is much in the record dealing with rules governing "access" to
the plant, and the distribution of literature there, by "nonemployees," but
that phase of the case , dealing with another issue , should not be confused
with the question whether the Company maintains an invalid no-
distribution rule for employees
29 Compare Alkaline Battery Division of ESB, Inc v N L R B, F 2d
(C A 4), decided March 26, 1970
30 The dissent in Stoddard-Quirk (at pp 628-629) viewed the majority
decision there as apparently holding that "union authorization and
membership cards" are "union literature," and that an employer may ban
the distribution of such cards by employees in "working areas" in their free
time Whether such a construction of the majority's views is correct need
record does not establish the existence of an unlawful no-
distribution rule for employees at the Gateway plant.
D. The Alleged No-Solicitation and No-Distribution
Rules Applicable to Nonemployees
The Company has had in effect for many years an
unwritten policy of prohibiting nonemployees from solicit-
ing or distributing literature to employees in the Gateway
plant. And as will appear in more detail later, it has refused
to permit representatives of Amalgamated, the internation-
al labor body with which the Joint Board is affiliated, to
distribute union literature on the Gateway premises. The
General Counsel and the Charging Party maintain that the
exclusion was unlawful, and the Respondent asserts the
contrary. A description of various features of the plant,
including its entrance and exit areas, and of some data
pertaining to its labor force, is a necessary preliminary to a
resolution of the issue.
The plant is situated on a roughly rectangular plot of land
owned by the Company, and is surrounded by a fence
about seven or eight feet high, with gate facilities for
entering and leaving the premises. The parking facilities
provided by the Company are entirely within the fenced
area.
On the south, the Company's property line runs parallel
to Gateway Boulevard West, which is a three-lane, one-way
street for westbound traffic, and runs parallel to a freeway,
Interstate 10, to which it provides access at some distance
from the plant. The nearest street to the west of the
premises is Hawkins Boulevard, and the north side parallels
Viscount Boulevard. The east side abuts vacant land.
Two of the gates, known as the Main and East Gates,
face Gateway Boulevard West; a third, the West Gate,
faces Hawkins Boulevard, and the fourth, the North Gate,
faces Viscount Boulevard.31
A driveway some 35 feet in length (Resp. Exh. 3) leads
from the Main Gate to Gateway Boulevard West which has
a posted speed limit of 45 miles per hour. The plant's
communications center is located inside the fence near the
Main Gate, and serves as the headquarters of the plant's
uniformed security force, whose duties include the direction
of traffic through the various gates.32 The Main Gate is
usually open from 6 a.m. to 6:30 p.m. for both inbound and
outbound traffic, and can accommodate two lanes of cars.
There is no stop sign along the driveway or at its
not be decided here, nor is it necessary to determine whether the
prohibition of distribution of authorization cards in the shipping
department amounted to a ban on the distribution of literature To do so,
would neither validate the rule forbidding oral solicitation by employees on
their free time in "working areas," nor establish the existence of a rule
forbidding distribution of literature by employees in "nonworking areas "
91 In the interest of consistency, I identify the East, Main, West and
North Gates by those names in making findings, although they are
respectively also called Gates 1, 2, 3, and 4 in the examination and
testimony of some witnesses
12 The General Counsel and the Charging Party make a point of the
fact that the guards carry side arms, and that the fence is topped by barbed
wire The point has more color than materiality There is no evidence that
the purpose of the side arms and barbed wire is to discourage union
activity rather than to protect the security of the premises, and one would
think it plain that if the Company has a right to forbid nonemployees to
solicit employees or distribute literature to them on its premises, the right is
not diminished by the presence of the barbed wire and the armed security
force
FARAH MANUFACTURING CO.
intersection with Gateway Boulevard West, and departing
traffic must turn in one direction (west) on that street.
The East Gate is connected with Gateway Boulevard
West by a driveway of some 20 feet in length, can
accommodate two lanes of traffic, is open from about 6:30
to 7:30 in the morning, and again from about 3:30 to 5:30
in the afternoon, but is used only for outbound traffic.
There is no stop sign along the driveway or at its
intersection with Gateway Boulevard West, and outbound
traffic must turn west into Gateway Boulevard West.
The West Gate is connected with Hawkins Boulevard,
which is a four-lane divided highway, by a street known as
Farah Road, which for a distance of some 20 or 25 feet
between the Company's property line and the point where
the road meets Hawkins Boulevard is public property. The
gate is located some distance inside the plant premises, but
nothing visibly indicates which portion of Farah Road
between the gate and Hawkins Boulevard is private
property and which is public. The gate is open for inbound
traffic between 6 and 7:30 a.m., and for both inbound and
outbound traffic between 11:30 a.m. and 12.35 p.m., and
between 3:30 and 5:30 p.m. Farah Road can accommodate
three lanes of traffic. There is a stop sign for outbound
traffic on the street near its point of intersection with
Hawkins Boulevard which has a posted speed limit of 40
miles per hour
The North Gate is connected to Viscount Boulevard,
which is a four-lane divided highway, by a driveway. The
Gateway facilities along the driveway actually consist of
two gates, one about 25 feet from the street, and the other
about 300 feet farther inside the property. Both gates are
used only for outbound traffic, and are both open from
6:30 to 7.30 a m.; 11.30 a.m. to 12:40 p.m.; and 3:30 to 5:30
p.m.33 There is no stop sign for the intersection of the
driveway with Viscount Boulevard
Many, if not most, of the Gateway plant's force of about
3,000 employees are of Mexican ancestry, and most speak
both Spanish and English, but all (with one possible
exception) are American citizens. Some 2,583 (86 percent)
of the employees reside in El Paso, which is adjacent to the
border with Mexico, has an area of about 117 square miles,
and a population of about 350,000. While some of the El
Paso employees reside in substantially separated areas of
the city, a majority of them are concentrated in several
neighboring postal zip code areas situated along the border
with Mexico (Resp. Exh. 12). About 231 of the labor force
(between 7 and 8 percent) reside in the neighboring
Mexican city of Juarez, which has a population of
approximately 470,000. The balance, some 185 (about 6
33 Findings as to the times the northern exit area is used are based on
Conroy's testimony, which differs somewhat regarding the subject from
Farah's Conroy appears to me to be more familiar with the matter
34 Findings as to the number who travel by private automobile and by
company-operated bus are based on Farah's estimates, which are not in
material dispute A census (Resp Exh II) of entering and departing
automobiles, buses, and the "occupants" of both types of vehicles, made on
January 12. 1970, several days before the hearing, during periods
embracing those when employees customarily arrive and leave, broadly
tends to support Farah's estimates, but is no more definitive, since the
count covered more extensive periods during the day than those in which
the employees generally arrive and leave, and did not distinguish between
automobiles carrying employees and those conveying others, and between
613
percent), reside on American soil outside the El Paso city
limits, all but one within a distance of 30 miles of the plant.
A large majority of the employees, about 2,700, go to and
from the plant by private automobile, and most of the cars
thus used are parked during the workday on the Gateway
premises. Except for a relatively few, the rest of the
employees, numbering about 300, arrive and leave on buses
operated by the Company for that purpose. The buses, at
least some of which serve the Company's other El Paso
plants, travel prescribed routes and make scheduled stops.
The vast majority of the labor force leave the plant premises
between 4:10 p.m. and 6 p.m. using one or the other of the
four gates, all of which are open for all or most of that
period.34
The evidence of the refusal to permit the distribution of
union literature in the Gateway plant's parking area may be
briefly summarized . What occurred , in matenal substance,
was that on March 13, 1969, Antonio Pena, "international
representative" of Amalgamated, accompanied by some
other organizers on its staff , went successively to the plant's
West and Main Gates, and to its office; on each occasion
identified himself by name and connection with Amalga-
mated to a member of the plant's security force or other
representative of the management ; and requested permis-
sion for himself and his companions to distribute leaflets in
the parking area on the plant premises; and that in each
instance the guard or other representative of the Company
refused to grant such permission.35 Pena 's requests, as I
infer, were not only made on behalf of Amalgamated, but
on that of its affiliated Joint Board as part of a joint
enterprise by both to organize the Gateway employees.
On April 10, 1969 , Pena , as international representative
of Amalgamated, wrote a letter on Joint Board stationery,
addressed to Farah at the plant, requesting permission for
union representatives "to distribute in an orderly manner
our union literature to your employees" (on the Gateway
plant premises, according to the sense of the letter). Farah
received the letter, but has not replied to it.36
The general test by which to measure the legality of the
Company's rejection of Pena's requests of March 13 is set
forth in N L.R.B. v. Babcock & Wilcox, 351 U.S. 105,
112-113, where the Supreme Court, striking a balance
between the right of an employer to use his property and
the statutory right of employees to self-organization which
may depend on their ability "to learn (its) advantages .. .
from others," held, in material substance, that an employer
may not bar distribution of literature on his property by
nonemployee union organizers if he does so on a
discriminatory basis, or his employees are "beyond the
reach of reasonable union efforts to communicate with
employee and nonemployee occupants
35 1 have omitted various details of what passed between Pena and those
to whom he spoke at the plant , as they add nothing of material substance
to the case
36 In the letter , Pena states that an effort had been made by "organizers
representing the Amalgamated to make a distribution of union
literature at your plant gates ," and that guards at the gates rejected a
request for an "opportunity to make such distribution " This, of course, is
not probative evidence of what occurred on March 13, but I note, in
addition, that in his testimony, Pena describes no request for leave to
distribute `at the plant gates " The requests he made , according to his
account, were to distribute leaflets in the parking area
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them" elsewhere. The rejection of Pena's requests was not
discriminatory, and thus the relevant issue is whether the
Gateway employees are beyond the reach of reasonable
efforts by Amalgamated or the Joint Board to communi-
cate with them outside the plant. Obviously, in applying the
test here, the burden of proving that the Gateway labor
force cannot be reached by such efforts rests with the
General Counsel. I hold for reasons that follow that the
burden has not been met.
The General Counsel and the Charging Party maintain
that reasonable efforts have been made to communicate
union information to the employees by leaflet distribution
outside the gates on October 28 and November 5, 1969; and
that the episodes demonstrate that such a method is
ineffective and hazardous, and, correspondingly, illustrate
the need for distribution in the plant's parking area. The
sole evidence of the distribution episodes is contained in the
testimony of two Amalgamated organizers, Guadalupe
Carrillo and Sophie Gonzales, both called by the Union,
but their testimony falls short of establishing that
distribution outside the gates is not a reasonable alternative
to distribution in the Company's parking area.
According to Miss Carrillo, on October 28, beginning
about 4 p.m. (shortly before the start of the departure
period for most of the employees), and "until all of the cars
left," and stationing herself outside the West Gate in the
center of Farah Road near its intersection with Hawkins
Boulevard, she attempted to distribute leaflets to inbound
and outbound traffic, engaging in the activity without any
interference from the security force or other plant
personnel.37 Characterizing the task as "too difficult
because it was too dangerous," she says that she distributed
about 50 or 60 leaflets on that occasion. She also testified
that stationing herself in the driveway outside of the North
Gate on or about November 5, she distributed about the
same number over a period of about 20 minutes. In this
area, too, according to her, "it was very difficult to
distribute any literature because I was much in danger,"
and she testified that a bus "hit" her while she was in the
area.
Her testimony is not a reliable guide to the feasibility of
distribution near the plant gates. In the first place, she
admittedly distributed at the North Gate on November 5
for only about 20 minutes. It does not appear what time she
arrived there. According to her account, she came to the
West Gate first, at about 4 p.m., remained there for an
unspecified period, and then proceeded to the North Gate
37 According to Miss Carrillo, she had stationed herself a little earlier
close to the West Gate (apparently within the Company's property line),
but a plant guard came by and told her to leave , stating that she was in "a
private zone," and cautioning her to be careful of traffic She then took up
the station closer to Hawkins Boulevard , and engaged in distribution
activity there without any interference The fact that there is no visible
indication of division in Farah Road and the other driveways between the
Company's property line and public property adds nothing of substance to
this case If the refusal to permit distribution inside the plant premises was
lawful , the absence of any visible indication of the Company's property
line in the driveways is immaterial , at least in the absence of any evidence
that Amalgamated or the Joint Board has sought, and been denied,
information as to the location of the line, and been materially hampered by
the lack of it in distribution outside the gates There is no such evidence
38 The traffic census of January 12, 1970, which counted 706 vehicles
outbound through the North Gate between 3 30 and 6 p in provides no
material help in determining the traffic volume during the 20-minute
(which is a substantial distance from the West Gate). The
departure period for day shift employees begins at 4:10
p.m. and continues until about 6 p.m. The nub of the matter
is that even if one could approximate the time Miss Carrillo
arrived at the North Gate at, say, about 4:30 p.m., the
record does not establish in what volume traffic came
through the gate in the 20 minutes she distributed there.38
Second, her claim that a bus "hit" her is simply untrue.
She subsequently receded from the claim with testimony
that "the bus comes by pretty fast and there is a small,
narrow sidewalk and the bus was coming by and it came
close to that sidewalk and I had to jump." From this it
would appear that she was not in the driveway at the time
of the alleged episode, but, in any case, at a subsequent
point, when interrogation focused on whether the bus had
"actually hit" her, she said that she had been hit "only with
the air, the force of the air, then I jumped." This, like the
untrue testimony that the bus "hit" her, appears to me to be
a puffed makeweight for her claim that distribution outside
the North and West Gates was a dangerous enterprise 39
Moreover, in evaluating the claim, it should be remembered
that there is a stop sign on Farah Road at its intersection
with Hawkins Boulevard, so that outbound cars carrying
employees after the day's work must stop before entering
Hawkins Boulevard; that inbound traffic running north on
Hawkins must make a right turn into Farah Road, while
inbound traffic running south along Hawkins must make a
left turn at a median point in that street opposite Farah
Road, and cross the northbound Hawkins traffic lanes
before entering Farah Road to approach the West Gate;
that thus, entering Farah Road from either direction on
Hawkins Boulevard, inbound traffic would, in the normal
course, very likely move at a slow pace past the point where
Miss Carrillo says she was stationed, especially during a
period such as the one in question when there is likely to be
substantial inbound, as well as outbound, traffic; 40 and
that departing traffic at the North Gate must make a right
turn into Viscount Boulevard, and thus would normally be
moving at a slow rate at least immediately before starting
the turn. In sum , while common sense tells us that a person
distributing leaflets at driveway locations where Miss
Carrillo says she was stationed would have to have due
regard to the traffic conditions present, the physical
characteristics of the two areas do not of themselves
establish that it is dangerous to distribute from either
location, and because of the earmarks of exaggeration in
her testimony on the subject, I am unable to attach any
period Miss Carrillo says she was at the gate
39 Although Miss Carrillo is not proficient in the use of English, her
claim that she was "hit" was not the product of inadvertence She testified
in Spanish through a qualified interpreter called by the Joint Board She is
an experienced union organizer , having worked for Amalgamated in that
capacity for several years, there is no indication that she did not
understand all questions put to her, as rendered in Spanish, and her claim
that she was "hit" came in response to an uncomplicated question whether
she had been "hit by any car " It is noteworthy that she made a point of
saying that it did not occur the "first time" she distributed literature, but
on the second occasion
40 Miss Carrillo does not estimate the number of inbound or outbound
vehicles that passed her station on Farah Road, but it may be noted that
the census of vehicles that passed through the West Gate between 3 30
p in and 6 p in on January 12, 1970 counted 370 outbound and 148
inbound vehicles
FARAH MANUFACTURING CO.
weight to her testimony that she found it "too dangerous,"
or that she was in "much danger ," at either location , or that
she was "hit," whether by "the force of the air" from a bus
or otherwise.41
Third, although she concedes that at the time of her
November 5 distribution near the North Gate, others were
distributing leaflets for Amalgamated outside the Main and
East Gates, neither the General Counsel nor the Charging
Party offered any evidence as to the distribution results at
either the Main or East Gates, nor gave any explanation of
the reason for the omission. Much the same can be said for
the October 28 distribution on Farah Road outside the
West Gate. Concededly, while she was engaged in
distribution at that location two people, whom she
identified by name, stood at the stop sign distributing
leaflets for Amalgamated to occupants of outbound cars as
they "were stopping"; yet neither of the two distributors
was called, and the record is barren of the results of their
distribution. To a point made by the General Counsel to the
effect that distributors stationed at the stop sign would not
be on the left, or driver's, side of outbound vehicles, it is
enough to say that that still does not prove their
distribution volume, and that the omission takes on added
importance from testimony by Miss Carrillo that "many"
of the windows on the right side of such departing cars were
open, while "some of them were closed." 42
Miss Gonzales' testimony reinforces a conclusion that the
evidence offered as to the feasibility of leaflet distribution
in significant volume outside the gates is at best inconclu-
sive. She gave testimony to the effect that accompanied by
two other union representatives (one of them Antonio
Sanchez), she stationed herself for leaflet distribution
outside the Main Gate, on October 28,43 at 4:10 p.m., when
"a shift . . comes out," but that only one or two cars
entered, and two left, through the gate during some 20
minutes; that at about 4:30 p.m., after leaving a supply of
leaflets with her two companions for distribution at the
Main Gate, she took up a position on the curb lining the
driveway outside the East Gate (which, like the Main Gate,
as previously noted, faces Gateway Boulevard West); that
during a period of "about half an hour till all the people
came out," she distributed leaflets to "maybe 75 or 100"
outbound cars out of some "400 or 500" cars that came
through the East Gate, moving principally in two lanes,
over a period of about a half hour starting at 5.10 p.m., 44
and that contemporaneously there were three or four
persons (including Miss Carrillo, as I infer from her
41 Compare General Dynamics, 137 NLRB 1725, 1728, where the Board
held that in the circumstances presented, the existence of heavy traffic
entering a private street leading to plant gates , and some difficulty in
distributing to the occupants of the cars proceeding on the street toward
the gates, did not give rise to a right in a union to distribute on an
employer's property inside the gates
42 1 find no weight in a claim in the General Counsel's brief to the effect
that "the north side" of Farah Road (that is, the side on which the stop
sign is located) "is steeply angled beginning with the curb and offers little
or no standing room " As support for the position, he cites a photograph
(G C Exh 20), but it was taken from such a distance and angle as to show
almost nothing of Farah Road located beyond an intervening hill shown in
the picture Another photograph (Resp Exh 8) far more accurately shows
that there is ample level ground along the "north side" of Farah Road
leading to the stop sign, and certainly more than enough on which to stand
inside the curb line near the point where cars would generally stop before
turning into Hawkins Boulevard
615
testimony) distributing Amalgamated leaflets outside the
West Gate, and at least one at the North Gate.
The record does not explain why only two cars would exit
through the Main Gate for some 20 minutes after the
exodus of homeward bound employees began, in contrast
to the West Gate, through which, judging by Miss Carrillo's
testimony, a substantial volume of outbound vehicles
passed during much the same period . In any case, Miss
Gonzales' testimony, like that of Miss Carrillo, demon-
strates the unexplained failure of the General Counsel and
the Charging Party to produce distribution figures that
could be meaningful . The testimony of both witnesses,
taken as a whole, would lead one to believe that during the
period of departure of most of the labor force from the
plant by car, the two distributed a total of some 125 to 160
leaflets during substantially the same period on October 28
to occupants of outbound vehicles. But, according to Miss
Gonzales, there was a total of seven or eight (including the
two she left at the Main Gate) who either distributed
leaflets, or had them available for distribution, at the
various gates on that date. The record contains no evidence
as to the distribution results of the five or six other union
representatives who were stationed with leaflets outside the
plant gates on October 28.
The nub of the matter is that in the absence of such
evidence it would be no more than a guess to say that
Amalgamated or the Joint Board must gain admission to
the plant's parking lot in order to distribute union leaflets to
a meaningful number of the employees, and the guess is
made all the more hazardous by the paucity of reliable
evidence concerning the results of distribution on Novem-
ber 5. The importance of the failure to produce the evidence
in question is underlined by General Dynamics, 137 NLRB
1725, where the Board (at p. 1728), in upholding an
employer's right to prohibit distribution of literature on its
property by a union, gave as a consideration that the labor
organization "got a handbill in almost every fourth car"
outside two of five plant entrances where distribution
occurred, doing so in traffic conditions that made
distribution somewhat difficult.
Moreover, the fact that approximately 300 of the
Gateway labor force of some 3,000 travel to and from work
at the plant by company-operated buses does not make a
case for compelling the Company to permit distribution on
its premises by nonemployee union personnel.45 I agree
with the General Counsel and the Charging Party that
43 I infer that the date was October 28 from Miss Gonzales' testimony
that her leaflet distribution occurred on a Tuesday in the last week in
October I note, also, in passing , that she refers at a number of places in
her testimony to Gateway Boulevard West, as "the freeway ," whereas it is
Interstate 10 which is a freeway Gateway Boulevard West runs parallel to
Interstate 10 for substantially more than the length of the plant , joining the
freeway at some distance from it
44 The estimate of 400 or 500 outbound cars through the East Gate
during the period specified is substantially in excess of the number, 330,
that passed through the gate between 3 30 and 6 p in on January 12, 1970,
according to the census taken that day
45 The approximation of the number who use the buses is based on
Farah's uncontradicted estimate that some 2,700 employees come and go
by private automobile, and about "300 plus" by bus The census of
January 12, 1970 counted 10 inbound buses with 361 occupants in the
"morning," and 12 outbound buses with 525 occupants in the "afternoon,"
but at least some of the buses stop at the Company 's other El Paso plants,
(Continued)
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution at the bus stops away from the plant is not
reasonably feasible 46 That conclusion is amply supported
by the evidence that 11 buses transport homeward bound
Gateway employees in the late afternoon, making a
combined total of approximately 170 stops; and that in the
morning, about the same number of buses, with a combined
total of about 200 stops, many at different locations than on
the afternoon routes, transport Gateway employees to
work.47 Pena testified credibly that he does not know the
bus itineraries (it does not appear that any effort has been
made to ascertain them), but even if it be assumed that
diligent inquiry (for example, of the large number of
employees on the Joint Board's Gateway plant organizing
committee) would yield meaningful information about the
bus stops and schedules, and taking into account the fact
that some of the stops are duplicated in various of the
itineraries , so that one distributor could reach the
occupants of more than one bus at given locations, the task
of reaching a substantial undertaking, with the distinct
possibility that many of those given handbills would not be
employees of the Gateway plant, but of another of the
Company's El Paso facilities.
But concluding, as I do, that it is unreasonable to expect
Amalgamated or the Joint Board to make an effort to
distribute union literature to the bus-riding employees at
their bus stops, I do not read Babcock & Wilcox as vesting
in either organization a right to distribute on the plant
premises simply because such a relatively small minority of
the labor force is not reasonably accessible for distribution
elsewhere. As is evident, employees in a plant have a
common interest in their working conditions, and it is
reasonable to expect that if a substantial number of them
receive communications, as by leaflet distribution, promis-
ing improvement in working conditions through union
organization , the message will soon spread to others in the
number of the employees at the bus stops would be a
formidable work force, the number of these very likely
increasing with the number who receive the message in the
first instance . Thus if the vast majority of the Gateway
employees, those who come and go by automobile, are
reasonably accessible for leaflet distribution outside the
plant gates-a matter that cannot be determined here
because of deficiencies in the evidence on the subject-it
appears to me that such accessibility accomplishes a
sufficient accommodation between the statutory right of
self-organization given employees and the right of the
employer to the use of his property.
What is more, distribution of literature by nonemployees,
and the record does not establish how many of the occupants were
Gateway employees , nor how many were en route from or to the other
establishments , nor whether all the buses arnved or left during the
customary arrival or departure periods of the employees
46 However, I find unimpressive , and unsupported by probative
evidence, Pena's opinion, based on hearsay, that bus-riding employees
"would be afraid" to accept leaflets at bus stops away from the plant
because the vehicles are operated by off-duty policemen The buses are
thus operated , but no employee testified to such fear , and, what is more, it
does not rationally appear why an employee would be more "afraid" to
receive a leaflet upon alighting at a bus stop away from the plant than to
receive one in the parking area or other bus-boarding site on the plant
premises , where he might be observed by a guard , as well as a bus driver
41 The bus itineraries appear in G C Exh I I In his brief, the General
Counsel mistakenly lists 18 afternoon buses , with a combined total of 325
stops From the exhibit , it is apparent that only I I of the afternoon buses
whether in the plant or outside the gates or at bus stops, by
no means exhausts the available channels of communica-
tion with the employees. The point is that El Paso has two
daily English-language newspapers, one (El Paso Times)
with a circulation of about 58,000, and the other (El Paso
Herald Post) with a circulation of some 43,000, and a
Spanish-language daily (El Continental, printed in Juarez,
but circulated only in El Paso), with a circulation of about
8,000; 48 that three Spanish-language daily newspapers (two
printed in Juarez, and the third in El Paso), one with a
circulation of 15,000, another with 28,000, and the third
with 8,000, are published for circulation in Juarez; and that
Amalgamated and the Joint Board have admittedly not
used any public communications media in the El Paso area
to communicate with the Gateway employees.
Pena offered the explanation that the organizations did
not know "which (of the media) to use," and that the
expense "would be prohibitive." The latter is mere
characterization without supporting weight, for there is no
evidence of the advertising cost in any of the media, nor of
the resources of either Amalgamated or the Joint Board 49
Pena admittedly has not looked into the cost of advertise-
ment in the El Paso newspapers (although testifying,
without specifying results, that on some occasion he
checked the cost of advertising in Juarez newspapers, and
over radio stations there).
The other claim also provides no justification for
requiring the Company to make its property available for
distribution by nonemployees. The implication of the
claim, made evident in the briefs of both the General
Counsel and Charging Party, is that there are so many
communications media in the El Paso-Juarez area as to
preclude a rational choice among them as an effective
means of reaching the Gateway plant's employees. It is true
that according to an exhibit (G.C. Exh. 27), there are six
"newspapers" (five in English) published for circulation in
El Paso, three television stations there (including one with a
weekly I-hour program in Spanish), and eight radio stations
in the city (without Spanish language advertising or
programs); and that there are three Spanish-language
newspapers published for circulation in Juarez, and one
television and nine radio stations there. But this statistical
abundance proves far less than the General Counsel and
the Charging Party see in it . As a starting point in that
regard, three of the five El Paso English-language
publications are plainly not newspapers of general
stop at the Gateway plant (about half stopping also at one or both of the
other plants), and that combined stops after departure from the Gateway
premises total about 170
48 The exhibit (G C Exh 27) listing public communications media in El
Paso and Juarez does not specifically say that the El Paso Times and El
Paso Herald Post are dailies of general circulation in El Paso , but it is
common knowledge in that area that they are, and I take official notice,
based on such knowledge, that they are the only two English language
dailies of general circulation in the El Paso area See , also, N W Ayer &
Son's Directory of Newspapers and Periodicals (1969 edition, published by
N W Ayer & Son, Inc, West Washington Sq, Philadelphia, Pa )
49 As Pena 's characterization of the cost as "prohibitive " is not entitled
to weight in any case, I see no need to measure its credibility in the light of
the commonly known fact that Amalgamated is one of America ' s major
nationwide labor organizations
FARAH MANUFACTURING CO. 617
circulation, and the fact is that there are only two English-
language dailies in El Paso.50 Advertisers in substantial
urban population areas often have a choice among many
media, yet make the choice; and the fact that there are a
substantial number of television and radio stations in the El
Paso-Juarez area appears to me to be an insubstantial
justification for not using either one or both of the English-
language dailies, and one or more of the Spanish-language
newspapers in the area to reach those among the
employees, whether resident in Juarez or not, who read the
Spanish-language press. In the absence of such efforts, how
can one predict, with reasonable certainty, that paid
insertions containing material such as statements of union
positions, advertisement of union meetings, and clippings
to be completed by the reading employee with his name and
address and returned by him to Amalgamated, would not
have a reasonably effective organizational impact on the
Gateway labor force? One would think that the best way to
determine the efficacy of such an effort is to make it. A
Judgment without it, on the basis of this record, is nothing
but a guess.
In reaching this conclusion, I am fully mindful of Solo
Cup Co, 172 NLRB No. 110,51 where the Board, in passing
on the legality of the exclusion of nonemployee organizers
from a plant located in a Chicago industrial park, and the
validity of the enforcement of a no-distribution rule there,
noted that because of wide dispersion of the employees'
homes in Chicago and "surrounding towns," it "would be
virtually impossible for the Union, without a list of
addresses, . to meet the Solo employees away from the
plant premises and convey its message"; and that
"additionally ... in view of the number of different
newspapers, radio and television stations operating in
Chicago and the surrounding areas, the Union would have
a problem in any event deciding on the appropriate stations
or newspapers, and would not be able to reach the
employees effectively with its message through such
media "52
The situation is materially different here. For one thing,
unlike the case in Solo Cup, it has not been demonstrated
here that effective distribution outside the plant gates is not
reasonably feasible. For another, El Paso, in which all but a
relatively small minority of the Gateway employees reside,
has about one-tenth of Chicago's population of some
3,500,000 (not to speak of the population of the
"surrounding towns" in the vicinity of Chicago); and is
about half the size of Chicago in area.53 Obviously, El
Paso's considerably smaller population and area materially
reduce the "problem" of communicating with the Gateway
employees away from the plant. On that score, this case is
far' more analogous to General Dynamics, supra, which
involved a plant in Rochester, New York, a city roughly the
size of El Paso; and where the Board, in holding (at p. 1728)
that the employees were reasonably accessible to a union
elsewhere than in the plant, made a point of the fact that
the union "did not avail itself of other channels of
communication such as newspapers, radio and television."
That point is particularly apt here, for a large proportion of
the Gateway employees are of the same Spanish-speaking
ethnic stock, and it is reasonable to expect that the message
of one or more suitable advertisements by Amalgamated or
the Joint Board in even one of the Spanish-language dailies
in the El Paso-Juarez area would come to the attention of a
substantial number of the Spanish-speaking employees
(including some of the relatively small number of residents
in Juarez), and spread from them to others.
It may be more convenient and less expensive for those
seeking to organize the employees to use the Company's
property for that purpose than to attempt to reach them
elsewhere, and, needless to say, one cannot fault them for
seeking to pursue an organizational method that seems
more efficient and economical to them; but the test for
compelling an employer to open his property to nonem-
ployee union organizers is not whether admission to the
plant would spare them motion and expense, but whether
they can reach the employees elsewhere through the use of
reasonable efforts.
The record, in sum, does not establish that the Gateway
employees are beyond the reach of such efforts, nor that the
rule barring solicitation or distribution by nonemployees on
the Gateway premises has been discriminatorily applied;
and thus I shall recommend dismissal of the allegations that
the Respondent violated the Act "by promulgating,
maintaining, and enforcing a rule prohibiting solicitation
for union activity and distribution of union literature on its
property by nonemployees."
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic and
commerce among the several states, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
so One of the other three English-language "newspapers ." judging by its
name , The Sun Shopper , appears to be a shopping publication While it has
a circulation of 60 ,000, the record does not establish the frequency of
publication , nor whether its circulation is paid or free (as is commonly
known is often the case , at least in part , with such publications) The other
two are The Interpreter , with a circulation of 10,500 , and, according to the
record , published "for (the ) Negro market", and The Labor Advocate, with
a circulation of 3,000 The record does not establish the frequency of issue
of either of these publications
51 Enforcement denied March 11, 1970, 73 LRRM 2789 (C A 7) on
grounds not material here
52 With due deference to the Board , it is fairly arguable that its
observations in Solo Cup about the problem of reaching the employees
away from the plant were unnecessary to the end results in the case, for it
later went on to say that whether or not a rule of the employer excluding
union organizers was in itself invalid, the rule of exclusion, and the
enforcement of a no-distribution rule, were unlawful because they were
discriminatorily designed for, and enforced solely against, the union
involved, and that, in addition, upon the analogy of Amalgamated Food
Employees Union v Logan Valley Plaza, 389 U S 911, where the Supreme
Court sustained a right of peaceful picketing and distribution of union
literature by nonemployees in a privately owned shopping center, the
employer similarly could not deny union organizers access to the industrial
park for distribution of literature
51 On the basis of The Columbia Encyclopedia (3rd ed 1963), 1 take
official notice that Chicago has a population of over 3,500,000, and an area
of more than 200 square miles, and that the Chicago metropolitan area has
a population in excess of 6,000,000, and covers about 460 square miles
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY conclusions of law , and upon the entire record in this
proceeding , I recommend that Farah Manufacturing
Company, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of its employees in El Paso
District Joint Board , Amalgamated Clothing Workers of
America, AFL-CIO, or in any other labor organization, by
discharging any employee , or in any other manner
discriminating against any employee with respect to such
employee's hire , tenure of employment , or any term and
condition of employment.
(b) Promulgating , maintaining , enforcing, or applying at
or on its premises known as the Gateway plant in El Paso,
Texas, any directive , regulation or rule which in terms or
effect prohibits or prevents any of its employees , during
times when they are not at work or required to be at work,
from orally soliciting any other employees , during any
times when such other employees are not at work or
required to be at work , to become members of any labor
organization or to engage in any activity in, or on behalf of,
any such organization ; or prohibits or prevents any
employees , during times when they are thus free, from
discussing any matters pertaining to activity , interest,
support of, or membership in any labor organization, with
any other employees who are also not at work or required
to be at work.
(c) Interrogating any of its employees as to any
employee 's activities , membership or interest in, support of,
or adherence to, any labor organization , in a manner
constituting interference, restraint or coercion in violation
of Section 8(a)(1) of the Act.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization ; to form , join , or assist any labor organiza-
tion ; to bargain collectively through representatives of their
own choosing; to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
2. Take the following affirmative actions which , I find,
will effectuate the policies of the Act:
(a) Offer Adan Gonzales immediate and full reinstate-
ment to his former position, or if it no longer exists to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges , as provided in
Section V, above, entitled "The Remedy ," and make him
whole according to the formula and method prescribed in
said Section V.
(b) Preserve until compliance with any order for
reinstatement or back pay made by the National Labor
Relations Board in this proceeding is effectuated , and make
available to the said Board or its agents, upon request, for
examination and copying, all payroll records, social
security records, timecards and personnel records, which
may be relevant to a determination of the amount of back
pay due , and to the reinstatement and related rights
provided by such order.
55 In accordance with the Board's past interpretation , the expression
"former or a substantially equivalent , position" is intended to mean
"former position whereever possible, but if such position is no longer in
existence , then to a substantially equivalent position " Chase National Bank
of New York, 65 LRRM 827
Having found that the Respondent has engaged in unfair
labor practices violative of Sections 8(a)(1) and 8(a)(3) of
the Act, I shall recommend below that it cease and desist
from the unfair labor practices found and take certain
affirmative actions designed to effectuate the policies of the
Act
In view of the nature and extent of the unfair labor
practices committed, and in order to make effective the
interdependent guarantees of Section 7 of the Act, I shall
recommend an order below which will in effect require the
Respondent to refrain in the future from abridging any of
the rights guaranteed employees by Section 7.54
Having found that the Company discriminatorily dis-
charged Adan Gonzales on October 21, 1969, in violation
of Section 8(a)(1) and (3) of the Act, I shall recommend
below that the Company offer him immediate and full
reinstatement to his former, or a substantially equivalent,
position,-55 without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of
pay he may have suffered by reason of his said discharge
from the date of such discharge to the date on which he is
offered reinstatement, as aforesaid, together with interest
thereon as provided below; and that the said loss of pay be
computed in accordance with the formula and method
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and include interest at the rate of 6 percent per
annum, as provided in Isis Plumbing & Heating Co, 138
NLRB 716.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in the proceeding, I make the
following conclusions of law:
1. The Company is, and has been at all material times,
an employer within the meaning of Section 2(2) of the Act.
2. The Joint Board is, and has been at all material times,
a labor organization within the meaning of Section 2(5) of
the Act
3. By discriminatorily discharging Adan Gonzales, as
found above, the Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by Section
7 of the Act, as found above, the Company has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and
54 a discriminatory discharge of an employee because of his union
affiliations goes to the very heart of the Act N L R B v Entwistle
Manufacturing Co, 120 F 2d 532, 536 (C A 4) See also May
Department Stores v N L R B, 326 U S 326, Bethlehem Steel Company
v NLRB, 120F2d641 (CADC)
FARAH MANUFACTURING CO
(c) Notify Adan Gonzales, in the event that he is now
serving in the Armed Forces of the United States, of his
right to full reinstatement, upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(d) Post in conspicuous places at the Company's Gateway
plant in El Paso, Texas, including all places there where
notices to employees are customarily posted, copies of the
notice attached hereto. Copies of the said notice, to be
furnished by the Regional Director of Region 28 of the
National Labor Relations Board, shall, after being duly
signed by an authorized representative of the Company, be
16 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 10248 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 the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
619
posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in such
conspicuous places. Reasonable steps shall be taken by the
said Company to insure that said notice is not covered,
altered, or defaced by any other material.56
(e) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this copy of a decision,
what steps the Respondent has taken to comply
therewith.57
IT IS ALSO RECOMMENDED that the complaints be
dismissed to the extent that they allege that the Company
engaged in any unfair labor practices not expressly found
above.
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 "
sr In the event that this recommended order is adopted by the Board,
paragraph 2(e) thereof shall be modified to read "Notify the Regional
Director, in writing, within 10 days from the date of this order, what steps
the Respondent has taken to comply therewith "