Farah Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1974

214 N.L.R.B. 304 (N.L.R.B. 1974)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farah Manufacturing Company , Inc. and Amalgamat-
ed Clothing Workers of America, AFL-CIO,
Southwest Regional Joint Board . Case 23-
CA-4435
October 25, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On January 24, 1974, Administrative Law Judge
Walter H. Maloney issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and counsel for the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(1) of
the Act by its supervisor instructing employees to spy
on prounion employees, limiting the movement with-
in the plant of prounion employees, interrogating
employees, informing employees that a supervisor
was waiting for prounion employees to "talk back"
so they would be fired, threatening to close the plant
if the Union came in, threatening to discharge union
supporters and stating that employees were "crazy"
to support the Union, and offering wage increases to
employees to cease striking.
Contrary to the Administrative Law Judge, howev-
er, for the reasons discussed below, we disagree with
his findings that Respondent violated Section 8(a)(1)
of the Act by threatening to withhold overtime from
employees wearing union buttons and violated Sec-
tion 8(a)(3) and (I) by discharging six employees,
and that all strikes involving Respondent's employ-
ees subsequent to May 3, 1972, regardless of the
plant involved, were unfair labor practice strikes.
We also find merit in Respondent's contentions
that the Administrative Law Judge's reliance on
Respondent's past involvement with the Board and
the courts and his numerous characterizations of Re-
spondent were unwarranted and injudicious. Howev-
er, after carefully examining the record and the Ad-
ministrative Law Judge's Decision we do not find
that the Administrative Law Judge was biased as al-
leged by Respondent. Accordingly, we disavow and
repudiate the section of his Decision entitled "Farah
and the Board: The Past as Prologue" and those
comments of the Administrative Law Judge through-
out his Decision that intemperately characterize Re-
spondent.
Employees began to organize Respondent's plant
in September 1972. Respondent through its supervi-
sors and plant manager interrogated employees as to
their attitude towards the Union, limited the within-
plant movement of prounion employees, threatened
to close the plant if the Union came in, informed
employees that supervisors were waiting for pro-
union employees to "talk back" so they could be
fired, attempted to solicit employees to spy on pro-
union employees, threatened to discharge prounion
employees and stated that employees were "crazy" to
support the Union, and offered to grant wage in-
creases to employees if they ceased striking.
There was also testimony that Respondent through
its supervisors threatened to withhold the overtime of
employees who wore union buttons. The Administra-
tive Law Judge found that Respondent by threaten-
ing to deny overtime violated Section 8(a)(1). How-
ever, the threat to withhold overtime was not alleged
in the complaint to be a violation of the Act and
during the hearing the Administrative Law Judge
specifically held that testimony regarding the alleged
threat would be admitted just as "background infor-
mation" and a finding would not be made based on
it. Accordingly, we do not find that Respondent vio-
lated Section 8(a)(1) of the Act by threatening to
withhold overtime.
On May 3, 1972, Garza, an employee who admit-
tedly lied about his leave, was instructed to return to
Respondent's office at 1 p.m. to be discharged.'
At lunch on May 3, Garza met with other employ-
ees and successfully requested mechanics Ruiz and
Rodriquez to accompany him to the office to repre-
sent him.
Garza arrived at the office at approximately 1 p.m.
and asked to see Supervisor Swinson to attempt to
resubmit his sick leave excuse. Swinson momentarily
left the office; when he returned Rodriquez, Ruiz,
and Plant Manager Dow had arrived. Swinson in-
formed Garza that the Company did not want him
and instructed Garza to turn in his badge. When
Dow encountered Rodriquez and Ruiz he asked
them what they wanted. Ruiz replied that he came to
inquire about Garza; Dow answered that it was none
of their business and that they should return to work
'Charges alleging that Respondent by discharging Garza violated Sec.
8(a)(I) and ( 3) were dismissed.
214 NLRB No. 48
FARAH MANUFACTURING CO., INC.
or punch out. Ruiz refused and insisted on being told
about Garza's fate. Ruiz and Rodriquez then heard
Swinson discharge Garza; and Ruiz then argued with
Dow why Garza should be retained. Dow had Super-
visor Frost paged in the factory area and instructed
Swinson to get Rodriquez and Ruiz's names, badge
numbers, cards, and to punch them out. Dow also
ordered that the two mechanics should turn in their
tools (which they were carrying attached to their
aprons).
Ruiz left the office, went into the factory, and met
mechanics Delgado and Rios whom he told that he
and Garza had been fired. Ruiz then returned to the
office.
Mechanics Delgado and Castano then arrived, ap-
proximately at the same time, at the office. Delgado
asked Dow why Ruiz and Rodriquez were fired.
Dow answered that it was none of his business. Dow
then told Supervisor Harlow to get Delgado's card
and to punch him out. Castano told Dow he was a
member of the organizing committee and asked what
had happened to Garza. Dow replied it was none of
his business, and told him to go back to work or be
out with the other employees. Castano persisted in
his questioning of Dow; and Dow instructed Harlow
to get Castano's name and to punch him out.
Mechanics Sandoval and Gonzalas entered the of-
fice and Dow said, "you too." Sandoval answered,
"yes," and Dow said get his name too, and both were
punched out.
Supervisor Frost arrived and had a private conver-
sation with Ruiz. Ruiz told Frost of his low wages
and Frost told him not to worry, that he would take
care of it; and Ruiz asked, "how if he is already
fired."
Supervisor Castillo arrived and was instructed to
escort Rodriquez and Castano to turn in their tools
as Ruiz had been seen wandering around the factory
when he had left the office previously.
Rodriquez and Castano both turned in their tools;
Rodriquez' tools were inventoried; and both supervi-
sors were then instructed not to continue to invento-
ry, but only to have the mechanics turn in their tools.
The other four mechanics turned in their tools, and
all six were then escorted back to the factory area to
,get their personal belongings.
All six returned to the office where Frost told them
they were trespassing and ordered them to leave the
premises. They left.
At 3 p.m. that day several hundred employees
walked out and within a few weeks walkouts oc-
curred at several other of Respondent's plants.
The Administrative Law Judge found that the six
employees were discharged in violation of Section
8(a)(1) and (3). Respondent admits that the six were
305
engaging in protected activity but denies that they
were discharged. Respondent contends that the six
employees were engaging in an economic strike and
were not discharged and, moreover, contends that
the complaint only alleges that the discharges violat-
ed Section 8(a)(l) of the Act.
We are not satisfied that Respondent discharged
the six employees who entered the plant office.' Re-
spondent, rather than discharge the six employees,
gave them the option of either returning to work or
leaving the plant.3 Respondent merely chose not to
have employees strike while on paid time.
No employee was told he was discharged, fired, or
terminated. There were rumors that employees would
walk out in sympathy for Garza. Respondent's super-
visors, including plant managers, do not have the au-
thority to discharge and approval to discharge has to
come from Respondent's vice president in El Paso; it
was not sought or obtained. No one of these facts
may in itself be determinative, but in combination
they convince as that the General Counsel has not
established that Respondent discharged the six em-
ployees in violation of the Act.
The Administrative Law Judge also found that all
strikes involving employees in any of Respondent's
plants subsequent to May 3, 1972, were unfair labor
practice strikes resulting from the May 3 incidents.
Again we disagree with the Administrative Law
Judge. While we do not adopt his findings that the
strikes were unfair labor practice strikes, we do not
make any affirmative findings as to their character.
The issue was not completely litigated, as the com-
plaint did not allege that the strikes were unfair labor
practice strikes; and during the hearing the Adminis-
trative Law Judge specifically stated that no findings
would be made on that issue.
Having found that Respondent has violated Sec-
tion 8(a)(1) of the Act, we shall accordingly order our
usual remedy. We do not find that the facts of the
instant case and Respondent's past involvement with
the Board Justify the Administrative Law Judge's rec-
ommended extra ordinary remedial order.4
Z Farah Manufacturing Company, Inc., 204 NLRB 173 (1973), wherein the
Board in an almost identical situation , involving the same parties as the
instant case,. found that Farah did not discharge employees , but that the
employees were economic strikers.
We also note that Respondent previously instructed its supervisors and
plant manager that in the event of a walkout they were not to discharge
employees , but were to request that they either return to work or punch out
and leave the plant.
The Administrative Law Judge found that Respondent 's defense to the
discharge allegation was that the six employees, rather than being dis-
charged, quit ; and that such an argument was "frivolous" which called for
an enlarged remedial order including the assessment of costs against Re-
spondent . The Administrative Law Judge has continually throughout his
Decision incorrectly referred to Respondent's defense as that the six em-
ployees quit rather than were discharged . Respondent never argued that the
Continued
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER APPENDIX
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Farah
Manufacturing Company, Inc., San Antonio, Texas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees con-
cerning union activities.
(b) Soliciting employees to spy on prounion em-
ployees.
(c) Informing employees that supervisors are wait-
ing for prounion employees to "talk back" so that
they may be fired.
(d) Limiting the in-plant movement of prounion
employees.
(e) Threatening to discharge prounion employees
and telling employees that they are "crazy" to sup-
port the Union.
(f) Threatening to close down the plant if the
Union comes in.
(g) Promising to grant wage increases if employees
cease striking.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its plant at Frio City Road, San Anto-
nio, Texas, copies of the attached notice marked
"Appendix." 5 Copies of said notice, in both English
and Spanish, on forms provided by the Regional Di-
rector for Region 23, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent shall taken to comply
herewith.
six quit; rather , Respondent has contended that they were economic strik-
ers. And rather than find it a frivolous argument , we have found that it has
merit.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read " Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
concerning union activities.
WE WILL NOT solicit employees to spy on pro-
union employees.
WE WILL NOT inform employees that supervi-
sors are waiting for prounion employees to "talk
back" so that they may be fired.
- WE WILL NOT limit the in-plant movement of
employees.
WE WILL NOT threaten to discharge prounion
employees and tell them, that they are "crazy" to
support the Union.
WE WILL NOT threaten to close down the plant
if the Union comes in.
WE WILL NOT promise to grant wage increases
if employees cease striking.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in their exercise of rights guaranteed to them by
Section 7 of the National Labor Relations Act.
FARAH MANUFACTURING
COMPANY, INC.
DECISION
1. FINDINGS OF FACT
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing in San Antonio, Texas, be-
fore me on various dates in September and October 1973.
The hearing was held upon a complaint issued by the Act-
ing Director of the Board 's Region 23,1 alleging that the
Respondent Farah Manufacturing Company, Inc., (Fa-
rah),' committed 10 specific independent violations of Sec-
1 The principal formal papers docketed in this proceeding are as follows:
Charge filed July 19, 1972, by the Amalgamated Clothing Workers of Amer-
ica, AFL-CIO, Southwest Regional Joint Board (and herein called Amalga-
mated or the Union ); complaint issued March 16, 1973; Respondent's an-
swer filed March 21, 1973; hearing held in San Antonio, Texas, on Septem-
ber 5 , 6, and 7 , and October 16, 17, 18, 1973; briefs filed by the General
Counsel , the Charging Party and the Respondent on December 11, 1973.
2 Respondent admits , and I find, that it is a Texas corporation which
maintains its principal office at El Paso , Texas, and is engaged at various
locations in Texas and New Mexico in the manufacturing and distribution
of men's and boys' pants . In the course and conduct of this business , it sold
and shipped during the past 12 months goods valued in excess of $50,000
from its Texas plants to points and places located outside the State of Texas.
Accordingly, it is an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act, and the Board has so found in previous
cases . 187 NLRB 601 (1970); 202 NLRB 666; 203 NLRB 543; 204 NLRB
173. Amalgamated Clothing Workers of America, AFL-CIO. Southwest
FARAH MANUFACTURING CO., INC.
tion 8(a)(1) of the Act and discharged six named individu-
als for engaging in concerted protected activities. The Re-
spondent denies committing the individual acts of interfer-
ence, restraint, and coercion alleged in the complaint, and
maintains that the six discriminatees named therein were
not discharged but in fact voluntarily quit their jobs. Upon
these contentions, the issues herein were joined.3
A. Farah and the Board: The Past as Prologue
Farah is no stranger to the processes of the Board. The
ancestry of this case , arising at Farah's Frio City Road
Plant near San Antonio, can be found in several decisions
of the Board , most of which have found their way to the
United States Court of Appeals for the Fifth Circuit. Farah
operates , or has operated , manufacturing plants at several
locations in the Southwest-four plants and a warehouse in
El Paso, a factory at Albuquerque which is now closed,
plants at Las Cruces, New Mexico , and Victoria, Texas
and two plants in San Antonio . At the time the events in
this case took place late in the spring 1972, Farah em-
ployed in excess of 9,000 production and maintenance em-
ployees throughout its system . Many of these employees
are women ; some 92 percent of them have Spanish sur-
names. Following the events described herein , about 2,000
production and maintenance employees at Farah , includ-
ing a significant number of employees at every one of its
plants, went on strike . Most of the strikers have remained
on strike ever since . All of Farah' s plants have been picket-
ed by the Amalgamated with some regularity since the
events of May 1972, at Frio City Road , and the Amalga-
mated has sponsored a widely publicized national consum-
er boycott of Farah products . While it is technically dehors
this record , I believe it proper to note at this point a fact
well known to all the parties and widely reported in the
press, namely that since the close of the hearing herein,
Farah has closed both San Antonio plants, its Victoria,
Texas plant, and its plant at Las Cruces, New Mexico. It
has also laid off about one-third of its supervisory person-
nel. The reason announced by Farah for these layoffs and
closings is declining sales due to the apparent effectiveness
of the Union 's consumer boycott. I make no formal finding
herein as to whether or not this is true.
The Amalgamated began its organizing campaign of the
Farah system in 1969, although it did not actively extend
the campaign to San Antonio until 1972. The campaign
started at the Gateway Plant in El Paso. On September 22,
1970, the Board issued a decision directing an election
among various named categories of employees located
within Phase III of the Gateway Main Building at El Paso.
(185 NLRB 699 .) On October 14, 1970, Amalgamated won
the election in this bargaining unit by a vote of 109 to 73
and was certified as the exclusive bargaining agent. Farah
refused to bargain , so, in an ensuing unfair labor practice
case , the Board issued a bargaining order requiring Farah
to honor the certification . (203 NLRB 543.) Farah has not
complied with this order , dated May 14, 1973, so enforce-
Regional Joint Board, is a labor organization within the meaning of Section
2(5) of the Act.
3 The transcript herein stands corrected.
307
ment thereof is being sought in the Fifth Circuit.
On December 31, 1970, the Board issued another order
suppressing certain illegal conduct engaged in by the Re-
spondent which also took place at its Gateway Plant in El
Paso. This order forbade, among other things, an overly
broad no-solicitation rule, prohibited coercive interroga-
tion of employees, and required the reinstatement with
backpay of an employee discharged for union activities.
(187 NLRB 601.) When the Respondent refused to comply
with this order, the Board sought enforcement which was
granted, with little discussion, by the Fifth Circuit. (450
F.2d 942 (C.A. 5, 1972).) A decree to this effect was entered
by the court in mandate form on January 11, 1972. Ac-
cordingly, at the time the events in this case took place in
San Antonio in May 1972, the Respondent herein was sub-
ject to a decree of the Fifth Circuit prohibiting it
in any other manner [from] interfering with, restrain-
ing or coercing employees in the exercise of their right
to self-organization; to form, join, or assist any labor
organization; to bargain collectively through represen-
tatives 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.
The decree in force also forbade Farah from
discouraging membership of its employees in El Paso
District Joint Board, Amalgamated Clothing Workers
of America, AFL-CIO, or in any other labor organi-
zation , by discharging any employee, or in any other
manner discriminating against any employee with re-
spect to such employee's hire, tenure of employment,
or any term or condition of employment.
On May 23, 1973, the Board rendered yet another Farah
decision relating to its Paisano Plant in El Paso. In this
case, the Board found the Respondent guilty of discharging
some 20 employees for union activities and for engaging in
various acts and conduct which violate Section 8(a)(1) of
the Act, including an illegal restriction on all personal con-
versations by employees during working time, coercive sur-
veillance of employee activity at the plant, instituting a rule
that a single error by a clothes packer in the packing of an
unchecked order would be grounds for discharge, and by
engaging in similar activities which the Board found in the
earlier Gateway Plant case to have been illegal. Respon-
dent refused to comply with this Board's order to cease and
desist from such activity and to reinstate discharged em-
ployees with backpay, so the Board is now seeking enforce-
ment thereof in the Fifth Circuit.
On June 14, 1973, the Board issued a decision involving
certain events which transpired on May 31, 1972, at
Farah's Victoria, Texas, plant. The events in the Victoria
case took place in point of time about a month after the
events which transpired in this case, but a decision in the
Victoria case was issued before a hearing was held in this
case because of delays in the prosecution of the Frio City
Road incidents. In the Victoria case, the Board found that
the Respondent was guilty of violating Section 8(a)(1) of
the Act by interrogating employees concerning their union
activities,, by instructing employees not to solicit other em-
ployees to discuss the union even on break time, threaten-
ing employees with trouble or discharge if they supported
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union, by soliciting employees to wear antiunion
badges, and by photographing employees who were picket-
ing or handbilling for the Amalgamated. The Board dis-
missed allegations in that unfair labor practice complaint
to the effect that Farah had discharged several Victoria
Plant employees for engaging in union activities. (204
NLRB 173.) This case is now before the Fifth Circuit on
the Board's petition for enforcement and the
Amalgamated's petition for review.
On June 4, 1973, the Fifth Circuit entered another judg-
ment enforcing a Board order entered against Farah as
part of a formal settlement of charges involving all of
Farah's factories except the Victoria plant (Case 73-2128,
C.A. 5). In this case, the Board 4 and the Fifth Circuit or-
dered Farah to cease and desist from engaging in a
lengthy, particularized list of violations of Section 8(a)(1)
of the Act, and further ordered it to reinstate several dis-
criminatees and unfair labor practice strikers.
On January 26, 1973, the Board conducted an election
among Farah's machine shop and maintenance employees
in El Paso (Case 28-RC-2312). In addition to objections to
the conduct of the election, some 273 union and employer
challenges were filed in an election involving a unit of 377
employees. A hearing on challenges and objections was
held in November and December 1973. A report on chal-
lenges and objections therein had not issued as of Decem-
ber 30, 1973.
When its remedies under the Act proved fruitless, the
Amalgamated sought relief by a civil action brought direct-
ly against Farah in the United States District Court for the
Western District of Texas. In an order dated July 24, 1972,
the Fifth Circuit ordered the U. S. District Court to re-
strain Farah from denying its employees the right peaceful-
ly to picket and protest the actions of this Respondent and
further ordered the District Court to restrain Farah from
"arresting, jailing, harassing, or requiring bond of any of
the [Amalgamated's] of Farah's employees for engaging in
peaceful picketing and assembly." El Paso Joint Board,
Amalgamated Clothing Workers of America v. Farah Manu-
facturing Company, Inc., 465 F.2d 1402.5 It is against such a
background that we proceed to consider what occurred at
Frio City Road, San Antonio, in the spring of 1972.
B. The Unfair Labor Practices Alleged Herein
1. The violations of Section 8(a)(l) by independent acts
of interference, restraint, and coercion
Farah operated a plant at Frio City Road, San Antonio,
where, at the time of the events here in question, it em-
ployed some 1,250 persons under the supervision of Plant
Manager Pablo Dow. It also operated a much smaller plant
in San Antonio, referred to as the Acme Plant. The Acme
plant was later transferred to another location and called
4 DS-437, dated May 7, 1973, Cases 28-CA-2636; 2637; 2754.
5 This recapitulation does not purport to be exhaustive of all Farah litiga-
tion. In addition to the cases noted above , other unfair labor practice
charges have been settled or dismissed , and charges filed by Farah against
the Amalgamated have resulted on more than one occasion in the issuance
of a complaint against the Union or the execution of a settlement agreement
by the Amalgamated.
the Highway 90 Plant. Acme was then being operated un-
der the supervision of David Espinosa, who doubled as the
Frio City Road Cutting Room Superintendent. On or
about March 6, 1972, Farah experienced a walkout of some
25 union activists at its Northwest Plant in El Paso. There-
after, union activity increased in intensity at Frio City
Road and so did Farah's resistance to it.
Early in April 1972, Maintenance Superintendent Alber-
to Limon asked employee Avelardo Chapa if he would find
out for him who the union "ring leaders" were at Frio City
Road. Chapa replied that he would. Late in April, Me-
chanic Supervisor Desie Castillo asked Chapa if the union
sewing machine mechanics in the plant were giving him a
hard time. Chapa replied, "No, not yet." Castillo told Cha-
pa that he was looking for an excuse, such as giving an
antiunion employee a hard time, so that he could replace
the union mechanics in San Antonio with some mechanics
from El Paso. During this same period of time, Plant Man-
ager Dow saw Chapa checking the sewing machine lines
during the lunch break and asked him if he had found any
union literature lying about. Chapa replied that he had not
found any. Dow then asked Chapa if any of the girls had
talked to him about the union, and Chapa replied that they
had. Dow reportedly told Chapa to inform the girls that, if
the Union came into the plant, Willie Farah 6 would shut
the plant down completely.
About a week after the May 3 walkout, Chapa was en-
gaged in a conversation in the Frio City Road Plant with
two female employees. They were discussing the pros and
cons of unionizing the plant. About 30 minutes after the
conversation terminated, Limon and Production Superin-
tendent Darrell Swinson approached Chapa and asked him
if he was spreading union rumors and encouraging a walk-
out. Chapa replied that he was not. Limon and Swinson
approached Chapa again, 20 or 30 minutes later, and told
him that some of the female employees had reported that
he was still talking union in the plant. At this point, Chapa
just walked out of the plant and joined the strikers outside.
A few days after Chapa had walked out and had joined
the Amalgamated picket line, Limon approached Chapa
and called him over for a private conversation which took
place outside the plant. Limon asked Chapa to return to
work. When Chapa demurred, Limon told him that he
would give him a raise and a bonus for returning to work.
Chapa still declined. None of the above conversations were
controverted by Swinson, who testified, or by Limon and
Castillo, who did not. I credit Chapa. As to Dow, he denied
generally that he ever threatened a plant closing if the
union came in. He admitted that the topic of plant closing
sometimes arose in various conversations which he had
with employees, but testified that he would normally ex-
press the opinion that he didn't think Willie Farah would
close the plant because Farah had a large investment to
protect. However, Dow did not specifically address or deny
the conversation in this regard with Chapa. I credit
Chapa's recital of his conversation with Dow.
When the Amalgamated began its organizing campaign
6 The President of Farah Manufacturing Company, Inc., is widely known
by his nickname "Willie." In fact, the source of formal memoranda which
he sends out to management personnel is often tersely identified as emanat-
ing "FROM : Willie."
FARAH MANUFACTURING CO., INC. 309
at the Frio City Road Plant, it notified Farah by telegram
of the names of Farah employees who were on its San
Antonio organizing committee. These telegrams were sent
on March 30, 1972, and April 17, 1972, respectively. They
contained the names of some 52 employees, including 5 of
the 6 discriminatees named in the complaint. Mauricio
Sandoval's name was missing from the list. One of the two
telegrams contained the name of Policarpio (Paul) Garza,
whose name figures prominently in the termination epi-
sode. Five of the six discriminatees were sewing machine
mechanics and were part of 13 mechanics who functioned
throughout the plant under the supervision of Desie Castil-
lo. The sixth discriminatee, Roberto Gonzales, was a ma-
chine oiler. In normal practice, mechanics respond on their
individual initiative to yellow lights located at each sewing
machine operator's station. These lights are turned on by
any operator whose machine has broken down or has
ceased operating for any reason, and who is in need of
mechanical assistance. Because of greater familiarity by
,certain mechanics with specific types of sewing machines, a
mechanic normally concentrates his efforts and working
time on specific machines or specific sections of the plant.
However, before the events here in question, it was the
constant and approved practice of mechanics whose areas
were not currently experiencing any yellow light trouble
calls to assist other mechanics elsewhere in the plant where
there appeared to be a backlog of yellow lights. No special
supervisory clearance or approval was required for such
mutual aid. The net effect of this practice was to permit, if
not require, mechanics to go throughout the plant with fre-
quency to respond to trouble calls.
Discriminatee Henry Rodriguez testified that, shortly af-
ter his name appeared on a telegraphic list of Amalgamat-
ed organizing committee members, Foreman Castillo told
him to stick to his own machines and to cease going else-
where in the factory to help other mechanics. Discrimina-
tee Mauricio Sandoval testified that, shortly after Castillo
noticed him passing out union cards in the plant to three
sewing machine operators, Castillo transferred him from
working on machines which were somewhat dispersed in
location and restricted his work to certain machines which
were located in a concentrated area. Discriminatee Hum-
berto Delgado testified that, shortly after his name ap-
peared on one of the above-noted Amalgamated telegrams
to Farah, he was also reassigned by Castillo to work on
machines in a much more restricted area than was his pre-
vious practice, and was further told by Castillo to restrict a
visit to any work station having a broken machine to one
visit only. Discriminatee Enrique Castano testified that it
had been his practice to assist mechanics Efrain Ruiz and
Henry Rodriguez in servicing yellow light trouble calls,
since they all generally repaired the same kind of sewing
machine. After their names appeared on one of the Amal-
gamated organizing committee telegrams, Castillo spoke to
Castano and told him to stay away from Ruiz in the plant,
to restrict his response to service calls to those in his own
immediate area, and not to talk too much to Ruiz or Rodri-
guez inside the plant. Castillo also told Castano not to
make any small talk with the sewing machine operators
(most of whom are female) and to restrict his conversations
with them to matters relating to machine breakdowns. Ruiz
testified that, after his name appeared on one of the Amal-
gamated telegrams, Castillo called Castano and him into
the office, told them to stay away from each other, and
restricted them to working separately in their own desig-
nated areas. Castillo told them not to help each other
out in the case of an excess of yellow light trouble calls but
to call him in case such a situation arose. Joe Ramos, a
mechanic whose name appeared on the Amalgamated tele-
gram, had originally been instructed by Castillo to help out
other sewing machine mechanics who were not in his im-
mediate assigned area. Shortly after the sending of the tele-
gram, Castillo approached him at the end of a work day
and instructed him to remain in his own area. Castillo did
not testify, and nowhere in the record were these remarks,
attributed to him by Ramos, Ruiz, Castano, Delgado, Ro-
driguez, and Sandoval, contradicted. Accordingly, I credit
the versions recited by these employees.
Rodriguez also testified that in April 1972, he found a
union leaflet on the floor, had picked it up, and was read-
ing it. As part of its organizing effort, the Union had been
handbilling the Frio City Road Plant. The leaflet con-
cerned the termination of 25 persons at one of Farah's
plants in El Paso. Supervisor Robert Frost noticed that
Rodriguez was reading the pamphlet and reportedly asked
him what he thought of the union. Rodriguez replied that
he did not know, whereupon Frost assertedly stated that
the 25 employees in El Paso were dismissed and replaced
on the spot. He added that this event in El Paso proved
that the Union does not do anything for employees. In his
testimony, Frost stated that Rodriguez had approached
him with a question about how many people walked out at
the Northwest Plant in El Paso. Frost replied that about 23
or 25 had walked out, adding that one person who request-
ed his job back was reinstated. Frost told Rodriguez that
each person who walked out was replaced, but that one
replacement did not pass a physical examination so he and
another supervisor went out to the picket line and offered
an unreplaced striker her job back. Frost denied question-
ing Rodriguez, but did not deny the balance of the conver-
sation. I credit Rodriguez.
Employee Eloise Martinez testified that on May 5, 1972,
2 days after the beginning of Frio City Road walkout, she
had heard rumors that Farah would close the plant if the
Union came in and asked Frost if the rumors were true.
Frost replied that it was true, that Mr. Farah did not want
a union in the factory, and that he would rather close the
doors than let a union in. Martinez noted that a lot of
people were walking out and asked what Mr. Farah would
do about this. Frost replied, "Well, if all the people walk
out, he will just close the factory because he doesn't want a
union in his factory." Martinez asked Frost if Farah would
close the factory if she were to remain as the last employee.
Frost replied that he would because she could not work all
by herself in the factory. He stated that the factory is like a
store, and if some employees started walking out, he would
have to tell the rest who stayed to look for other jobs be-
cause there would be no job. Shortly thereafter, an em-
ployee named Esther asked Frost if it was true that Mr.
Farah would close the factory if a union came in. He re-
plied that it was true. When Esther began to cry, Frost told
her that if she would stay and work, she would have a job
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as long as she came to work, but that if she walked out, she
would lose her job. Frost reportedly turned to Martinez
and asked her what she thought about the union. Martinez
replied that she did not know. He asked her whether she
was going to walk out, and she stated that she did not
know. Frost told her that, if she walked out, she would lose
her job but that she would have a job as long as she stayed
and worked. When Martinez complained about the neces-
sity of bringing in a doctor's excuse for every absence,
Frost gave no direct response but merely repeated his ques-
tion as to whether she was going to join the walkout or was
going to stay. Martinez again answered that she did not
know. Later that day, Martinez had a discussion with em-
ployee Mary Ann Sibrian, who was complaining that Fore-
man Danny Mansour had given her a job lifting bundles
which she could not do so because her back hurt. Martinez
suggested to Sibrian that she tell Mansour and advanced
the belief that he would transfer her to another job. Sibrian
was reluctant to inform Mansour that the cause of her
backache was menstruation, but she finally did so.
Mansour's reply to Sibrian was, "Sick or not sick, you have
to do it because that is the only job I have for you." At this
point both Martinez and Sibrian started to walk out.
Mansour told Martinez and Sibrian that if they walked
out, they would be fired. Mansour and Frost tried to con-
vince them to stay. Frost said that what the union was
promising was empty talk and asked them why they want-
ed to go out and carry picket signs. When they started to
leave, they were asked to punch out their timecards. Both
refused, saying that they were not quitting but were just
walking out. Mansour said, "Well, even if you don't punch
your card, you are still going to be fired." Mansour did not
testify, Frost made no specific mention of this incident in
his testimony other than making a general denial that he
ever questioned any employees concerning their union ac-
tivities. Dow, who was present during the latter part of the
Martinez-Sibrian incident, likewise refrained from men-
tioning it in his testimony. Accordingly, I credit the above-
recited testimony of Rodriguez and Martinez.?
Late in April 1972, Production Superintendent Darrell
Swinson and Foreman Peter Cantu were talking in the gen-
eral vicinity of employee Eusebio Reyna. Swinson instruct-
ed Cantu not to assign overtime to anyone who wore a
union badge. Cantu then repeated to Reyna Swinson's in-
struction that anyone who wore a union badge would not
get any more overtime. Shortly before the May 3 termina-
tion and walkout, Quality Control Supervisor James Dut-
ton and Cantu had a conversation with Eusebio Reyna
concerning the union. Dutton told Reyna that he thought
that Paul Garza was crazy for trying to bring the union
into the Farah plant, stating that anyone who would try to
do such a thing would be fired. He stated that this was just
what was going to happen to employees Juan Hernandez
and Henry Rodriguez. Dutton stated that Willie Farah
would close the plant down before he would let the union
come in. Neither Dutton nor Cantu testified, and Swinson
7 The facts relating to Frost's alleged promise of a wage increase to Efrain
made no reference to these remarks in his testimony. Ac-
cordingly, I credit Reyna's statements recited above.
2. The termination of the six discriminatees
The immediate sequence of events preceeding the May 3
termination of six alleged discriminatees began the previ-
ous Saturday, April 29, when Paul Garza, a member of the
Union's organizing committee, was assigned to work at the
Frio City Road Plant. The plant normally operates on a
5-day-week basis, but various employees are from time to
time assigned Saturday work. Garza did not show up on
Saturday. Instead he participated in a caravan of Farah
employees from San Antonio who journeyed to El Paso to
participate in a public demonstration of support for Farah
employees which took place in El Paso on that day. The El
Paso demonstration was sponsored by Amalgamated and
various labor, civic, and other groups. It was widely publi-
cized, so much so that Garza's picture appeared in a news-
paper as a participant therein. On Monday, May 1, when
Garza returned to work, he presented Darrell Swinson an
admittedly phony written sick excuse which Swinson re-
fused to accept. Swinson sent Garza home and, by tele-
phone, sought permission from Joe Chemali, Jr.,
Respondent's vice president and director, to discharge
Garza. While it appears that Chemali's personal participa-
tion in this decision may not have occurred, an appropriate
clearance from Farah headquarters to discharge Garza was
forthcoming by late in the morning of Wednesday, May 3.8
Garza presented himself at the company office early in the
morning of May 3 and was told to return at 1 p.m. to talk
with Swinson. Garza was also told by Swinson that the
excuse he had previously presented for his Saturday ab-
sence was insufficient, and was also told by Swinson that
he had to get another excuse.
About noon on Wednesday, May 3, Garza went to Mo-
rales' Ice House, a cafe or restaurant located across the
street from the Frio City Road Plant where Farah employ-
ees frequently go for lunch. At Morales, he met Efrain
Ruiz, Henry Rodriguez, and Rodriguez's lady friend, Mary
Rodriguez, who was also a Farah employee. They had
lunch together. At this time, Garza related to his luncheon
companions what had transpired and the fact that he had
to go to see Swinson at 1 p.m. to present another written
excuse. He asked Ruiz and Henry Rodriguez to accompa-
ny him to the office and to be present with him at the
meeting with Swinson. They agreed to do so.
A number of other Farah employees took their lunch at
Morales, although they did not eat at the table occupied by
Garza and his party. At some point during the noon hour,
Amalgamated Representatives Joe Perales and Joan Sua-
rez also visited the ice house. There was general talk at
Morales that Garza was going in to see Swinson at I p.m.
to present his second excuse. Mrs. Suarez suggested to one
Farah employee, Enrique Castano, that if Ruiz and Rodri-
guez did not return from the company office by 1:15 p.m.,
he should go to the office to find out what was happening.
Farah employees then returned to work and punched in by
12:35, which is the time that afternoon work begins.
Ruiz to induce him to refrain from striking are set forth in the course of the 8 Swinson testified that he hoped that, when Garza left on Monday, he
narration of facts surrounding the May 3 termination . would just not come back to seek his job.
FARAH MANUFACTURING CO., INC. 311
Garza presented himself at the front office shortly before
1 p.m. The office in question is at the entrance to the plant.
The office area is a large open area, containing a switch-
board and counter near the front door. Behind the counter
are a row of desks which are occupied by Farah's clerical
and managerial employees. Garza presented himself at the
counter and asked to see Swinson. When Swinson ap-
peared, Garza gave him a, written excuse. Swinson told
Garza that he would not accept the excuse. When Garza
asked him why not, Swinson simply repeated that he would
not accept the excuse. Swinson left the front part of the
office area momentarily, and when he returned, Plant
Manager Dow and employees Ruiz and Rodriguez had ar-
rived in the general vicinity. Swinson told Garza, who was
seated, that the Company did not want him any longer and
instructed him to turn in his badge.
When Ruiz and Rodriguez arrived, they were confronted
by Dow who asked them what they wanted. Rodriguez in-
formed Dow that they were members of the union organiz-
ing committee and had come to the office to inquire about
what was happening to Garza. Dow replied that Garza's
status was none of their business and instructed them to
return immediately to work or to punch out. Rodriguez
replied that they were not going back to work and insisted
that Dow tell them what was happening to Garza. They
heard Swinson inform Garza that the Company did not
want him any longer, so Ruiz began to argue with Dow to
the effect that the Company should retain Garza, asserting
to Dow that Garza was a good employee and needed his
job in order to care for his family.
At this point, Dow had Supervisor Robert Frost sum-
moned by phone from the plant and instructed Swinson to
get Ruiz and Rodriguez' names, plant badge numbers, and
timecards, and to punch them out. He said he did not want
to see them in there anymore. He also instructed Rodriguez
and Ruiz, who were wearing work aprons containing me-
chanical tools, to turn in their tools at the toolroom. Ruiz
immediately left the office area and returned to the plant,
where he saw employees Rudy Rios and Humberto Delga-
do. He told these employees that he and Garza had been
fired. Ruiz turned in his tools at the toolroom and returned
to the front office.
By this time, four other employees were in the process of
entering the office area from the factory. Delgado arrived,
followed shortly by Castano, Roberto Gonzales, and Mau-
ricio Sandoval. Delgado came to the office after he had
seen Ruiz in the plant to inquire as to what had happened
to Ruiz. Upon arriving at the office, he asked Dow what
had happened to Ruiz and Rodriguez, although he did not
inquire specifically about Garza. Dow replied abruptly that
it was none of his business. Delgado persisted in asking
why these two men had been fired, whereupon Dow sum-
moned Office Manager Joe Halow and told Halow to get
Delgado's card and punch him out. When Castano arrived,
he informed Dow that he was a member of the union orga-
nizing committee and asked what was going to happen to
Paul Garza. Dow replied that it was none of his business,
commented that he did not know why Castano was getting
involved in the matter, and told Castano either to go back
to work or he would be out with the other employees. Cas-
tano persisted, stating that he just wanted to find out what
was going to happen to Garza, whereupon Dow turned to
Halow and told him to take down Castano's name and to
go get his timecard. When Sandoval and Rodriguez ar-
rived, Dow simply asked them, "You, too." When Sando-
val said yes, Dow simply said, "Get his card, too." Sando-
val and Rodriguez were also punched out by a Farah su-
pervisor.
While these events were in progress, Frost, who had been
summoned to the office by Dow, took Ruiz into another
room adjacent to the office for a private conversation. He
told Ruiz that he was a good employee and stated further
that he should not have gotten involved with Paul Garza
because such involvement only meant trouble. Ruiz replied
that Garza should not have been fired because he had a
family to take care of. Frost reiterated that involvement
with Garza would only get Ruiz in trouble. Frost also
asked Ruiz what he thought of his wages, and Ruiz replied
that he could hardly make it on what he was earning. Frost
then stated that if it were wages that Ruiz was worried
about, he should not worry because Frost would take care
of that problem. Ruiz then inquired why Frost wanted to
take care of his wages after he had been fired. This remark
terminated the conversation, and the two returned to the
office area.9
By this time, Mechanic Supervisor Desie Castillo had
arrived at the office and had escorted Henry Rodriguez
and Enrique Castano back to the parts room to turn in
their tools.1° It is a regular practice at Farah to require
employees who quit or who are being discharged to return
tools which are checked out to them. If any company tools
are not accounted for at the final inventory, the price of the
tool is deducted from the employees' final paycheck. Ro-
driguez' tools were individually inventoried against a list of
company tools which had previously been checked out to
him. He was found to be lacking a screwdriver. Castillo,
who was with him at the parts room inventory, told him
that he would have to p'y for the missing screwdriver be-
fore he got his final p:'.ycheck. This conversation is not
controverted, so I credit Rodriguez. Castillo also escorted
the other discriminatees back to the toolroom. However,
one of the other supervisors told Castillo not to bother to
inventory the tools individually because this process would
take too long, but merely to insure that they were turned in
and that someone else would inventory them later." The
e Frost admits taking Ruiz aside at this time for a private conversation in
another room, but states that in the private conversation, Ruiz did most of
the talking. According to Frost, Ruiz said that he wanted to go to work
because he (not Garza) had a family to support, to which Frost replied,
"Well, then you should go to work." Ruiz reportedly denied mentioning
anything about a wage increase, stating that he was not going back to work
until Garza goes back to work. I find Frost's version of this incident wholly
implausible in light of his admitted initiation of the private conversation,
and credit Ruiz' version recited above in the main text.
10 When Swinson returned to the office area from pulling the timecards of
Ruiz and Rodriguez , he reported to Dow that he had seen Ruiz roaming
about the plant talking to other employees. Thereafter, Dow assigned Castil-
lo as an escort to accompany the employees in question when they returned
to the factory area to turn in their tools and pick up their personal belong-
mps.
Swinson testified that he phoned Castillo to inform him that it would
not be necessary to inventory each employees' tools. According to Swinson,
he told Castillo that it would not be necessary to inventory tools since the
Continued
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remaining employees were instructed merely to turn in
their tools in bulk and to check the inventory list for cor-
rectness on Friday when they could return for their final
paychecks. They turned in their tools and aprons at the
toolroom, obtained their personal possessions which were
in individual lockers which they kept at the plant premises,
and returned under escort to the office area. Ruiz, who had
previously turned in his tools, returned to the plant area
under escort to retrieve his personal possessions. When all
of the employees had reassembled at the office area, Frost
told them they were trespassers and ordered them to leave
the premises. The six discriminatees and Garza left within
a few minutes of each other.
The events recited above, from the time of Garza's arriv-
al at the office until the seven employees left, took approxi-
mately a half hour. Within the following hour, several
employees from Farah's Acme plant arrived at Frio City
Road. When the 3 o'clock break came at Frio City Road,
several hundred Frio City Road employees walked out.
Picket lines were established in front of this plant. With
some minor interruptions, they have continued to the date
of the hearing. Within a few days following this eruption at
the Frio City Road Plant, walkouts by an estimated 2,000
employees occurred at all of the other Farah plants. Farah
concedes that the walkouts at its other plants were trig-
gered by the events of May 3 at Frio City Road.
When Castano returned to the plant on Friday, May 5,
to pick up a regular paycheck, Joe Halow told him that the
Company had inventoried his tools and that he owed mon-
ey for two screwdrivers. When he picked up his final pay-
check the following Friday, he had to pay for the screwdri-
vers before receiving his final payment.12 Sometime in
May, Amalgamated's local counsel Herrera complained to
Farah management about the practice of withholding final
paychecks pending payment for missing tools, but was in-
formed that such was Farah's practice and that it would be
adhered to in this instance.
C. Analysis and Discussion
1. Violations of Section 8(a)(1) by individual acts of
interference, restraint, and coercion
Making additional findings of independent violations of
Section 8(a)(1) by Farah is like carrying coals to Newcas-
tle. There are already outstanding against this Respondent
employees in question were not being discharged . In fact, Farah did inven-
tory the tools of all employees in question but at a later moment. I regard
Swinson 's self-serving statement "that the employees were not being fired"
as a pointless argumentative afterthought , as actions speak louder than
words. Whether or not Swinson uttered this phrase to Castillo on that occa-
sion would not affect my ultimate finding in this case, but I discredit so
much of his testimony that he told Castillo they were not being fired. Castil-
lo did not testify and the others who were present did not hear Swinson so
speak. It is clear to me that the exclusive concern of Dow, Swinson. and
other Farah 's supervisors at this point was to get Garza and his supporters
out of the plant as soon as possible and that this desire for haste prompted
them to postpone individual inventorying of certain tools.
12 All of Farah 's timecards are sent from San Antonio to El Paso for
processing . and all paychecks are made out in El Paso and forwarded for
distribution to San Antonio. As a result, paychecks are normally distributed
to San Antonio employees a week after the close of the pay period.
both Board orders and court decrees forbidding generally
the interference, restraint, and coercion of Farah employ-
ees in the exercise of rights guaranteed to them by Section
7 of the Act. There are also outstanding against this Re-
spondent both orders and decrees forbidding lengthy par-
ticularized lists of 8(a)(1) violations which Farah has been
wont to commit in wholesale quantities over the past 4
years. On this score, little can be added now which would
enlarge either the scope or gravity of the Respondent's out-
standing liability. However, additional violations of this
kind and character were prosecuted and established herein,
either without evidentiary dispute or by clear and convinc-
ing evidence, so they will be found. They have a direct
bearing on the immediate setting in which the discrimina-
tees herein were terminated.
(a) It is undenied that Foreman Desie Castillo instruct-
ed known union supporters who worked under his supervi-
sion as sewing machine mechanics to restrict their move-
ments about the plant in the performance of their duties,
and, in some instances , to stay away from other employees
who were known union supporters. These instructions were
issued shortly after the identity of organizing committee
members became known by Farah through Amalgamated
telegrams. As mechanics, these individuals were accus-
tomed to travel at will about the plant, and hence were in
an unusually good position to be in continuing contact
with other employees. The record reflects that no such pro-
hibition was placed upon nonunion mechanics. Both the
timing and the reason for the imposition of these re-
strictions on union mechanics by Castillo are unexplained.
Accordingly, I find and conclude that such restrictions
constituted a violation of Section 8(a)(1) of the Act.
(b) Having credited the testimony of Henry Rodriguez
and Eloise Martinez that Foreman Robert Frost interro-
gated them concerning their union sympathies, I conclude
that his interrogations constitute a violation of Section
8(a)(1) of the Act.
(c) I cannot find any evidence in the record to support
the allegation of paragraph 7(c) of the complaint; namely
that Frost told employees that other employees had been
discharged because they went to talk to Company Presi-
dent Willie Farah about the Union. Accordingly, I will
recommend the dismissal of paragraph 7(c). However, this
recommendation is a small ripple compared to the tidal
wave of violations of this Section of the Act which have
taken place in this and other Farah cases, and such dis-
missal will not affect the remedy recommended herein to
the Board.
(d) It is undisputed on the record that Foreman Alberto
Limon asked employee Avelardo Chapa to find out who
the union "ringleaders" were and to report this information
back to him. Accordingly, I conclude that these remarks
constitute a violation of Section 8(a)(1) of the Act.
(e) It is undisputed that Foreman Desie Castillo in-
formed employees that he was waiting for them to talk
back to him so he would have a pretext for discharging
them. Accordingly, I conclude that this statement consti-
tutes a violation of Section 8(a)(I) of the Act.
(f) The General Counsel concedes that there is no evi-
dence to support the allegation in paragraph 7(f) of the
complaint that Pablo Dow solicited employees to find out
FARAH MANUFACTURING CO., INC.
and report on employees who were supporting the union. It
was Limon who did this; Dow is guilty of other miscon-
duct. The General Counsel asks leave to withdraw this por-
tion of the complaint. Leave is granted.
(g) I credit testimony recited above that Plant Manager
Pablo Dow told employees that the Respondent would
close its plant if the union came into the plant. According-
ly, I conclude that such conduct violates Section 8(a)(1) of
the Act.
(h) It is undisputed that Supervisor James Dutton told
employee Eusebio Reyna that employees were "crazy" for
supporting the union and that any one who would do such
a thing would be fired. I conclude that such remarks vio-
late Section 8(a)(1) of the Act.
(i) I credit the testimony of Efrain Ruiz, that, during the
termination episode, Quality Control Supervisor Robert
Frost called him aside to an adjacent room and promised
to get him a wage increase if Ruiz would abandon his sup-
port of Garza. I conclude that this promise violates Section
8(a)(1) of the Act.
(j) It is undisputed that Foreman Alberto Limon ap-
proached Avelardo Chapa on the picket line, called him
aside for a private conversation, and promised him a wage
increase if he would abandon the strike. Such conduct con-
stitutes a violation of Section 8(a)(1) of the Act, and I so
conclude.
(k) The complaint does not allege any specific miscon-
duct on the part of Foreman Danny Mansour. However, in
the course of the evidence relating to Frost's misconduct,
General Counsel' s witnesses testified credibly and without
contradiction that Mansour threatened both Mary Ann
Sibrian and Eloise Martinez with discharge if they engaged
in a walkout. I conclude that such conduct violates Section
8(a)(1) of the Act. Liberty Electronics Corp., 138 NLRB
1074 (1962).13 The complaint also does not specifically al-
lege that Swinson and Cantu stated that overtime would be
withheld from employees wearing union buttons. The mak-
ing of such statements was established by uncontroverted
evidence in the record. Hence, I conclude that these state-
ments also violate Section 8(a)(1) of the Act.
2. The terminations of the six discriminatees
Respondent has insisted throughout the hearing in this
case and in its brief that the discriminatees involved in this
case were not discharged but instead voluntarily quit their
employment or at least walked out. At the same time, Re-
spondent has placed heavy reliance on the Board's decision
in Emerson Electric Company, 185 NLRB 346 (1970), going
13 The prerogative of the Board to make additional cognate findings to
those matters specifically alleged in the complaint or to predicate findings
upon litigated matters apart from the specific theories advanced by the
General Counsel has been well established in a number of cases . The sole
prerequisite is that the matters found were fully explored during the hearing
on the complaint and are supported by record evidence . They are. See Dan-
ner Press , Inc. 153 NLRB 1092 (1965); Independent Metal Workers Union
Local No. I (Hughes Tool Co.), 147 NLRB 1573 (1964); Siskin Steel and
Supply Company, 160 NLRB 1038, 1050; Radiadores Paragon de Puerto Rico,
Inc., 206 NLRB 918 (1973); N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293
F.2d 941 (C.A. 1, 1961); American Newspaper Publishers Association v.
N.LR.B., 193 F.2d 782 (C.A. 7, 1951); N.L.R.B. v. Pecheur Lozenge Co.,
Inc., 209 F.2d 393 (C.A. 2, 1953).
313
so far as to say that the Emerson Electric decision precludes
a finding of a violation in this case. The latter contention
could proceed only from the implied premise that the dis-
criminatees herein did not quit but were discharged for
cause, inasmuch as Emerson Electric dealt solely with the
question of whether alleged discriminatees therein were
fired for cause or whether they were fired for engaging in
protected activities. Such ambivalence does not enhance
the persuasiveness of Respondent's arguments on either
score.
Looking first to the question of whether on May 3, 1972,
the six discriminatees were discharged for engaging in cer-
tain concerted, protected activity, I note the statement of
the Fifth Circuit in N.L.R.B. v. Dan River Mills, Inc., 274
F.2d 381 at 384 (1960), that "antiunion bias and demon-
strated unlawful hostility are proper and highly significant
factors for Board evaluation in determining motivation."
Accordingly, the termination of the six Frio City Road em-
ployees on May 3, 1972, may and properly should be eval-
uated in light of the ponderous mass of unlawful conduct
which took place at this plant in the 6 weeks immediately
preceding May 3, and also in the light of the extreme and
intransigeant antiunion hostility demonstrated repeatedly
by this Respondent at its other plants, as found in previous
Board and court decisions. The fact pattern emerging from
the evidence in this record remarkably parallels the events
recited in a number of Fifth Circuit decisions of both re-
cent and ancient vintage, as well as in a number of other
Board and court cases. In Gullets Gin Company, Inc. v.
N.L.R.B., 179 F.2d 499 (C.A. 5, 1950), the Board and the
court were confronted by complaints alleging the discharge
of 10 employees for engaging in concerted, protected activ-
ities. In that case, a meeting took place in the shop between
employees and the plant manager. The employees asked
for a raise; the employer replied that there was nothing he
could do for them at the time because of the pendency of a
representation petition. They persisted in demanding a
raise. When the employer concluded his remarks, he told
the assembled workers that they could either quit or go
back to work. When they refused to return to work, he told
them they were fired. The court concluded that the dis-
charges were prompted by employer resentment at the ac-
tion of employees in pressing their rights under the Act
rather than for refusing to return to work, and so upheld a
Board finding that the discharges constituted a violation of
Section 8(a)(1) of the Act. .
N. L.R. B. v. H. A. Holcombe d/b/a Holcombe Armature,
325 F.2d 508 (C.A. 5, 1963), involved the suspension of
eight employees who walked off the job and began to pick-
et outside the plant to protest the firing of a fellow employ-
ee who had been discharged for mishandling equipment. In
finding the suspension to be a violation of the Act, the
court said:
There can be no substantial doubt but that normally a
spontaneous or planned walkout in protest against the
firing of another employee is protected activity. [cita-
tions] . . . We conclude that the conduct of the em-
ployees in protesting his discharge in the manner they
chose was concerted activity. Of this there can be little
doubt. We also conclude that it was protected, be-
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause even though the company had grounds for firing
Barnes, the employees had the right to protest the fir-
ing as too harsh or because they thought the standard
of care in the operation of equipment was too high.
Even though upon more careful reflection they might
not have reacted as they did, the wisdom or un-wis-
dom of their conduct is not a test. 325 F.2d 508 at 511.
In N. L. R. B. v. Pepsi-Cola Bottling Company of Miami, Inc.
449 F.2d 824 (C.A. 5, 1971), the court upheld a Board find-
ing of an illegal discharge of 97 employees who had en-
gaged in a sit-down strike to protest the firing of six other
employees. The six in question had engaged in a work slow
down to prod the company into making bargaining conces-
sions. Faced with the contention that a refusal of nonwork-
ing employees to leave the plant upon the employer's re-
quest was unprotected activity, the court said that the em-
ployer cannot convert an in-plant work stoppage into an
unprotected trespass by the simple expedient of ordering
employees from the plant, where the order serves no imme-
diate employer interest and unduly restricts the employees'
rights to present grievances to their employer. In the ab-
sence of an established grievance procedure and in light of
the fact that the Pepsi-Cola employees were not threaten-
ing violence nor claiming to hold the premises in defiance
of the employer's right of possession, the court concluded
that the sit-down strike was protected activity.
In N. L. R. B. v. J. I. Case Company, 198 F.2d 919 (1952),
Respondent's favorite circuit, the Eighth, 14 had occasion
to comment on the protected nature of an in-plant demon-
stration aimed at protesting the discharge for cause of a
fellow employee. It stated: ". . . since such a protest might
properly take the general form of a strike, it also necessari-
ly would be privileged to be asserted in a lesser form, such
as a temporary work stoppage or other controlled demon-
stration, carried on within bounds and as a matter of par-
ticular plant-situation." The incident in the company office
of May 3, 1972, was vastly less in scope and import that the
J. I. Case situation. Other Board and court of appeals deci-
sions are to the same effect. G and W Electric Specialty Co.,
154 NLRB 1136 (1965); The Masonic and Eastern Star
Home of the District of Columbia, 206 NLRB 789 (1973);
Carter Carburetor Corporation v. N.L.R.B., 140 F.2d 714
(C.A. 8, 1944); Modern Motors, Incorporated v. N.L.R.B.,
198 F.2d 925 (C.A. 8, 1952); N. L. R. B. v. Kennametal, Inc.,
182 F.2d 817 (C.A. 3, 1950); N.L.R.B. v. Phaostron Instru-
ment and Electronics Company, 344 F.2d 855 (C.A. 9, 1965).
Perhaps the best explication of the far-ranging scope of
14 In an earlier Farah case , arising in another of its plants in Texas, the
Respondent herein sought review of the Board decision in the U . S. Court of
Appeals at St . Louis , which normally hears appeals in cases arising in the
States located in the Upper Mississippi Valley and the Missouri Valley.
Farah predicated its selection of an appellate court on the fact that, in
addition to the Texas plant where the unfair labor practices occurred, it also
maintains in Fargo, North Dakota, within the geographical confines of the
Eighth Circuit , an office space containing some 270 square feet where it
employs an agent to service its sales territory in Minnesota and North Da-
kota. The Eighth Circuit transferred the case to the Fifth Circuit, character-
izing the appeal of a Texas case to an appellate court in St . Louis as "forum
shopping." Farah Manufacturing Company v.'N.L.R.B., et a!., 481 F.2d 1143
at 1145 (C.A. 8, 1973).
Section 7 rights is contained in the Supreme Court decision
in N.L. R.B. v. Washington Aluminum Company , 370 U.S. 2
(1962), where the Court upheld the protected nature of a
walkout in protest of abnormally cold conditions in a
plant . Justice Black spoke for the Supreme Court in lan-
guage remarkably applicable to the instant situation:
The language of Section 7 is broad enough to pro-
tect concerted activities whether they take place be-
fore , after , or at the same time such a demand is made.
To compel the Board to interpret and apply that lan-
guage in the niggardly fashion suggested by the re-
spondent would only tend to frustrate the policy of the
Act to protect the right of workers to act together to
better their working conditions . Indeed , as indicated
in this very case, such an interpretation of Section 7
might place burdens upon employees so great that it
would effectively nullify the right to engage in con-
certed activities which that section protects . The seven
employees here were part of a small group of employ-
ees who were wholly unorganized . They had no bar-
gaining representative , and, in fact, no representative
of any kind to present their grievances to their em-
ployer. Under these circumstances, they had to speak
for themselves as best they could . . . . Having no bar-
gaining representative and no established procedure
by which they could take full advantage of their una-
nimity of opinion in negotiations with the Company,
the men took the most direct course to let the compa-
ny know that they wanted a warmer place in which to
work . So, after talking among themselves , they walked
out together in the hope that this action might spot-
light their complaint and bring about some improve-
ment in what they considered to be the `miserable'
conditions of their employment . This we think was
enough to justify the Board 's holding that they were
not required to make any more specific demand than
they did to be entitled to the protection of Section 7.
We are confronted here with employee action which, in its
disruptive impact, falls far short of a strike or walkout.
Their misdeed was a peaceful and unobtrusive petition to
redress a grievance.
In light of these precedents, Emerson Electric stands out
as a temporary factual mutation on a long line of decisions
having a contrary import. It is also factually distinguisha-
ble from this case, in that the Farah employees involved
herein were well-mannered and even-tempered, and were
not brash, crude, insubordinate, or disrespectful, as in Em-
erson Electric. The Board later receded from the impact of
Emerson Electric in Quality Manufacturing Company, 195
NLRB 197, wherein it held that an employer may not disci-
pline an employee for demanding union representation to
assist him at either an investigative or disciplinary inter-
view. It follows necessarily that an employer may not law-
fully discipline those who seek to assist a fellow employee
who requests such representation at such an interview, ab-
sent some special circumstance not present here. Accord-
ingly, if Farah fired six of Garza's fellow employees for
FARAH MANUFACTURING CO., INC. 315
seeking to assist Garza or each other at the May 3 inter-
view, it violated Section 7 of the Act. 15
Despite the fact that Garza was a known and leading
union adherent, that the Respondent knew he was engaged
in union activities on the day of his unexcused absence,
and despite the existence in the record herein of credited
evidence that before this incident the Respondent was lay-
ing for union adherents in general and Garza in particular,
the General Counsel did not elect to prosecute as unlawful
the discharge of Garza himself. Accordingly, for purposes
of this discussion, I assume without deciding that Garza
was discharged for cause. What remains is that Garza re-
quested fellow employees Rodriguez and Ruiz to be pre-
sent with him at his final disciplinary interview, and in so
doing was exercising a right guaranteed to him by Section
7 of the Act. When Rodriguez and Ruiz appeared at the
company office at or about 1 p.m. on May 3 and spoke to
Dow and Frost on Garza's behalf, they too were exercising
rights guaranteed to them by Section 7 of the Act; namely
of presenting a grievance on behalf of a fellow employee
and of protesting the action taken or about to be taken by
the Respondent in regard to the principal grievant. When
Dow refused to hear Ruiz and Rodriguez and confronted
them with the choice of either ceasing to exercise their Sec-
tion 7 rights or of leaving, he effectively discharged them
from their employment and did so in violation of Section
8(a)(1) of the Act. When, a few minutes later, Castano, Del-
gado, Gonzales, and Sandoval arrived at the office to pro-
test the treatment both of Garza and of Ruiz and Rodri-
guez, they too were exercising the same rights guaranteed
to them by Section 7 of the Act. When they were summa-
rily confronted with the choice of ceasing to present the
expanded or cumulative grievance and of voicing their pro-
test of the Company's action or of leaving the plant, they
too were discharged in violation of Section 8(a)(1) of the
Act.
An additional factor should be noted. All of the discrim-
inatees except Sandoval were named by Amalgamated in
its telegrams to Farah as being members of the organizing
committee. Sandoval had been seen by company supervi-
sors distributing union cards in the plant. Some of the dis-
criminatees were wearing union buttons at the time of the
confrontation at the company office. Sandoval went to the
office in part upon the suggestion of Amalgamated Organ-
izer Suarez. In introducing his presence at the company
office to Dow, Rodriguez mentioned that he was speaking
on behalf of the Union organizing committee. Their partic-
ular concern with the fate of Garza was heightened by the
fact that Garza's absence on the preceding Saturday was
occasioned by his public participation in a Union demon-
The Board and some courts are apart on whether the right of represen-
tation at an interview is limited to disciplinary interviews or whether this
right extends to investigative interviews as well. In Jacobe-Pearson Ford,
Inc., 172 NLRB 594 (1967), the Board indicated that such representation
need be allowed only at a disciplinary hearing. It extended the scope of the
right to cover investigative interviews in Quality Manufacturing. supra, and
Mobil Oil Corporation, 196 NLRB 1052 (1971). The Fifth Circuit has limited
the scope of such right to disciplinary hearings . N.L.R.B. v. Texaco, Inc., 408
F.2d 142 (1965); N.L.R.B. v. J. Weingarten, Inc., 485 F.2d 1135 (1973). The
distinction is of no moment here . By the time Garza was scheduled to
appear at the Company office at I p.m. on May 3 , clearance had already
been obtained to discharge him. All that remained was administering the
coup de grace. It was clearly a disciplinary interview.
stration in El Paso. Not many weeks before the May 3
incident , Castillo, the immediate foreman of five of the six
discriminatees , stated that he was looking for a pretext to
discharge the union sympathizers under his supervision. In
light of this evidence , it is clear that the six discriminatees,
in their actions in the early afternoon of May 3, were en-
gaging in Union activities as well as in concerted , protected
activities , and that such was plainly known to Dow and
others in supervision at Frio City Road . The General
Counsel did not specifically allege in the complaint that the
discharges violated Section 8 (a)(3) of the Act, contenting
himself with an allegation of a violation of Section 8(a)(1).
However , the evidence which he adduced at the hearing
plainly supports the finding of a discharge by Farah of the
six employees for engaging in union activities , in violation
of Section 8(a)(3) of the Act, and I so conclude.
Respondent seeks to avoid responsibility for violating
the Act by claiming that the six employees involved herein
were not discharged at all, but voluntarily quit or walked
out on their employment . In support of this contention, it
makes several arguments , either explicitly or sub silentio.
Respondent points out that the employees in question left
their work stations while on company time without permis-
sion and refused to return when directed , all in violation of
company rules . It equates their refusal to return to their
machines as a voluntary quit. The Board answered this
contention in Frick Company, 161 NLRB 1089 at 1095
(1966), when it said that:
(equating) withholding of services during a strike to a
quit would do violence to Section 13 of the Act. And
this is so, irrespective of any rule of Respondent which
so provides either expressly or impliedly and is made
known and explained to employees in advance.
Giving an employee the alternative of surrendering his Sec-
tion 7 rights or of returning to work does not mean that the
employee has quit his employment, if he elects to exercise
rights guaranteed by the Act. American Enterprises, Inc.,
191 NLRB 866 (1972). The Fifth Circuit put it nicely in
N.L.R.B. v. Cone Bros. Contracting Co., 317 F.2d 3, 7
(1963):
The fact that the men were discharged by rounda-
bout means and circumlocution, telling them that they
had "quit," avails an employer nothing. The question
is whether their discharge constituted an unfair labor
practice.
In further support of its argument that the employees quit
and were not discharged is the Respondent's contention
that, at no time during the half-hour episode in the compa-
ny office area, did any supervisor tell any employee named
in the complaint that he was discharged, fired, or terminat-
ed. All supervisors were under explicit oral and written
instructions given at an earlier time to avoid the use of
these words in any plant upheaval situation. From the
avoidance of magic words I am supposed to draw an infer-
ence that the employees were not in fact discharged. It is
equally true that none of the employees said "I quit," or "I
am walking out," or "I resign." A similar and contrary
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference could be drawn from a nonuser by employees of
these conventional terms, but we need not resort here to
such fragile inferences drawn in either direction. The evi-
dence shows that Garza, who was admittedly discharged
on that occasion, was not told of'his separation in any of
the explicit terms conventionally used to convey the mes-
sage. The simple fact is that no special words-indeed no
words at all-need be used to discharge an employee. In
Sakrete of Northern California, Inc., 140 NLRB 765 (1963),
the employer conveyed a discharge message by telling em-
ployees to turn in their plant keys. In Jewell Smokeless Coal
Corporation, 175 NLRB 57 (1969), a coal operator used no
words at all in discharging 10 so-called truck miners. It
simply turned off the electricity which provided lighting
and power in the mine. The test of whether or not an em-
ployee has been discharged is whether the statements and
actions of his employer would reasonably lead him to be-
lieve that he had been discharged. N.L.R.B. v. Hilton Mobil
Homes, Inc., 387 F.2d 7 (C.A. 8, 1967). "The fact that the
Respondent's employees received no formal notice of dis-
charge, as was Respondent's customary practice, is imma-
terial, if they could logically infer that their employment
status had been terminated at that point." N.L.R.B. v.
Comfort, Inc., 365 F.2d 867 (C.A. 8, 1966). In light of the
Respondent's abrupt, precipitous action, discussed above, I
do not see how its employees could have come to any other
conclusion.16
Dow personally told one of the discriminatees to turn in
his tools, while Castillo escorted them to the toolroom to
see that this was accomplished. Dow also told one employ-
ee that he did not want to see him again. He ordered subor-
dinate supervisory personnel to punch out employee time
cards when the employees themselves refused to punch
them out. Castillo actually inventoried one employee's
tools on an individual basis and told him that he owed the
Company for a screwdriver. Employees were escorted into
the plant by a supervisor on their way to the toolroom, a
process never applied to persons in active employment.
When the employees reassembled at the front office, Frost
called them "trespassers" and ordered them out of the
building. After the dust of this incident settled, deductions
were made from final paychecks for missing tools. At no
time did any supervisor tell any discharged employee di-
rectly that he could return to work, despite the fact that the
Respondent was in contact with the employees when they
received their final paychecks, and could easily have cor-
rected any misunderstanding, either when they picked up
their pay or in front of the plant, where they could fre-
quently be found carrying picket signs.
Respondent attempted to establish that the Amalgamat-
16 According to some , but not all , of Respondent 's witnesses , during the
half-hour termination episode in the company office, an unspecified discri-
minatee asked "Are we fired?" to which Garza supposedly replied in the
negative , followed by a statement by Frost to the similar effect that they
were not being fired. Garza, a declarant of the first response, and all of the
discriminatees present denied that this conversation ever took place . I credit
their denials , though a contrary finding would not affect my ultimate con-
clusion . It is immaterial if an employee is told he is not being discharged. if
everything of an objective character which his employer does indicates to
the contrary. See N.L.R.B. v. Central Oklahoma Milk Producers Association,
285 F.2d 495 (C.A. 10, 1960).
ed and the seven discharged employees had contrived to
walk out unless Garza were reinstated. In support of this
contention, they placed on the stand a number of supervi-
sory and nonsupervisory employees who testified that,
prior to the walkout, they had heard rumors that there was
going to be a walkout unless Garza were reinstated. None
of these rumors were tied to the Union, to Garza, or to any
of the discriminatees , all of whom denied any such plan.l"
The only prearrangement established in this record was an
agreement by Ruiz and Rodriguez to come to the company
office at 1 p.m. to speak to Farah management on behalf of
Garza, and an intention on the part of Castano to visit the
office at 1:15 to find out what was going on in the event
that Ruiz and Rodriguez had not returned to the plant by
that time. The rest is conjecture and speculation on the
part of Farah management borne of a siege mentality, and
all to an obscure end, inasmuch as the employee actions on
behalf of Garza were protected by the Act regardless of
whether they were planned or spontaneous. N.L.R.B. v.
Holcombe, supra. It is clear to me that all employee actions
on May 3 were wholly spontaneous, except as specifically
noted above, and took place in reaction to a badly bungled
labor relations fiasco committed by Farah's San Antonio
supervisors, whose actions had ramifications extending far
beyond the fate of one employee, or even of six.
One last prop supporting the Respondent's factual con-
tention requires some attention. Since the organizing drive
began at Farah in 1969, Farah has maintained the unusual
practice of requiring plant managers of lower-ranking su-
pervisors to clear with Joe Chemali, Jr., vice president in
charge of operations, before discharging any employee.
Routine discharge requests not requiring immediate action
are processed in writing; those requiring immediate atten-
tion are handled by a telephone call to El Paso. In case Joe
Chemali, Jr., cannot be contacted personally, his brother or
others in the El Paso office are authorized to approve a
discharge request. This practice was introduced to protect
the Company from liability from unfair labor practice
charges filed with the Board and from unemployment com-
pensation claims filed with the Texas Employment Com-
mission (TEC).
Respondent's various plant managers are generally res-
ponsible for the operation of their facilities. They hire pro-
duction and maintenance employees locally without clear-
ance from El Paso, and may, of course, recommend dis-
charges. They may discipline employees short of discharge,
as may lower-ranking supervisors, without intervening
higher approval. The policy of requiring headquarters
clearance for discharges has not been widely advertised
among employees, although the existence of such a policy
has come to light in the course of various litigated proceed-
ings before the Board and the TEC. Farah does not claim
that it is not legally bound by the actions of Dow and
17 Respondent points to the fact that between the time the mechanics
were discharged and the beginning of the large -scale walkout at 3 p.m., a
large number of yellow-light trouble calls were flashed by sewing machine
operators . This effort was supposedly part and parcel of a union plan to
harass Farah management in support of Garza by sympathetic sewing ma-
chine operators . In light of the fact that nearly half of the machine force had
just been terminated , it is not surprising that there existed at this time an
unanswered backlog of trouble calls and an inordinately large number of
yellow lights signaling for mechanical assistance.
FARAH MANUFACTURING CO., INC.
others in its San Antonio supervisory force, if in fact they
discharged the individuals here in question, even though
supervisors might have been acting in contravention of
company policy. Such a contention would gain it little,
since all acts of a supervisor are attributable to his princi-
pal if he was in a position to give his subordinates cause to
believe he was acting on behalf of management. N.L.R.B.
v. Houston Chronicle Publishing Company, 300 F.2d 273
(C.A. 5, 1972). Instead, Respondent notes that there had
been no prior clearance from El Paso to discharge the six
Garza supporters when they were unceremoniously ush-
ered out of the plant on May 3, and argues from this factu-
al premise that the San Antonio supervisors did not in fact
discharge the employees in question, for to do so would
have meant a serious breach of company policy which
would have brought down upon them the wrath of Willie
Farah. The short answer to this contention is that the best
laid plans of mice and men "gang aft agley." As the Sec-
ond Circuit put it, "parties who make it a practice of
stretching the statutory fabric to the breaking point should
not be surprised when the cloth gives way." N.L.R.B. v.
General Electric Company, 418 F.2d 736 at 749 (C.A. 2,
1969). The simple fact is that Dow and others in the Frio
City Road office threw caution and instructions to the
wind when confronted with employee objection to their
unilateral actions. They felt that their best and only tack
was to remove from the plant and from the Company as
quickly as possible the threat which they perceived. To ar-
gue that they would not have done such a thing on their
own because Willie Farah would not have approved is
equivalent to saying that Farah would not have discharged
employees discriminatorily because Congress passed a law
against such things.
3. The aftermath
As noted above, the Garza incident in San Antonio trig-
gered a massive reaction throughout the entire Farah sys-
tem. Like the shooting of the Archduke at Sarajevo, this
event set in motion a chain of events which resulted in the
systemwide confrontation between Farah and its employ-
ees which exists to date. When on May 3, 1972, at about
1:30 p.m., Farah discharged six employees for engaging in
the protected and union activities of supporting Paul Gar-
za, it committed an unfair labor practice. The subsequent
Frio City Road walkout at 3 p.m., the Acme plant walkout,
and all of the other strikes which took place thereafter
throughout the Farah system were admittedly the product
of this initial incident and causally connected to it. Since
this overall strike was in protest of the unfair labor practice
committed by the Respondent in discharging the six Garza
supporters, the participants therein became and remain un-
fair labor practice strikers, and are entitled to the status
and protection surrounding unfair labor practice strikers.18
I so find and conclude.
18 There is nothing in the earlier Farah case involving the Victoria. Texas,
plant which precludes such a finding. 204 NLRB 173. In that case. Judge
Fitzpatrick and the Board were concerned exclusively with the legality of
Victoria incident (which occurred in point of time 28 days after the Frio
City Road incident), and with the impact of the Victoria incident on a
subsequent walkout at that plant. Neither the Frio City Road incident nor
its legal consequences were before the Administrative Law Judge or the
Board in that case.
317
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Farah Manufacturing Company, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Amalgamated Clothing Workers of America, AFL-
CIO, Southwest Regional Joint Board, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. (a) By instructing union supporters among its employ-
ees to restrict their movements about the plant and to re-
frain from being in contact within the plant with other
employees; (b) interrogating employees concerning their
union sympathies; (c) asking employees to spy on the
union activities of other employees and to report the results
of their espionage to the Respondent; (d) telling employees
that it was looking for a pretext to discharge employees
who are union sympathizers; (e) telling employees that the
Respondent would close the plant if the union came into
the plant; (f) telling employees that they were "crazy" to
support the union and that union sympathizers would be
fired; (g) promising employees a pay raise for ceasing to
engage in union activities and in concerted, protected ac-
tivities; (h) threatening to discharge employees if they en-
gaged in concerted, protected activities; (i) and announc-
ing that it would withhold overtime from union supporters,
the Respondent herein violated Section 8(a)(1) of the Act.
4. The Respondent discharged Henry Castano, Hum-
berto Delgado, Roberto Gonzales, Henry Rodriguez,
Efrain Ruiz, and Mauricio Sandoval because they engaged
in concerted protected activities and in union activities,
and, in so doing, violated Section 8(a)(1) and (3) of the Act.
5. Respondent's employees at all of its plants who en-
gaged in a strike on or after May 3, 1972, did so to protest
the unfair labor practices set forth in Conclusions of Law
4, and are unfair labor practice strikers.
6. The unfair labor practices set forth above in Conclu-
sions of Law 3 and 4 affect interstate commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The Board has noted that, in addition to conventional
remedies, there is often a need for additional remedies
which are "tuned to the exigencies of the case." Such situa-
tions impose upon the Board "the necessity of being imagi-
native and innovative in fashioning our orders." The Loray
Corporation, 184 NLRB 557 (1970). Upon review, wide dis-
cretion in fashioning such relief is allowed by the courts.
N. L. R. B. v. Ford Motor Company, 119 F.2d 326 (C.A. 5,
1941); N. L. R. B. v. Lamar Creamery Company, 246 F.2d 8
(C.A. 5, 1957); N.L.R.B. v. Dallas General Drivers Local
745 (Macatee, Inc.), 281 F.2d 593 (C.A. 5, 1960); N.L.R.B.
v. J. P. Stevens & Co., 417 F.2d 533 (C.A. 5, 1969). To deal
effectively and meaningfully with a respondent such as this
one, the Board's creativity will be taxed to the, uttermost.
Over the past 3-1/2 years,. the Board and the courts have
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued orders and decrees enjoining Farah from engaging
in a wide variety of unlawful conduct. This Respondent
has been repeatedly directed to mend its lawless ways, and
yet it continues on as if nothing had happened, pursuing its
policy of flouting the Act and trampling on the rights of its
employees as if there were no Act, no Board, and no Ten
Commandments. Farah has simply thrown down the
gauntlet to this Agency and has dared the Board to stop it
from making the Act a dead letter as far as Farah employ-
ees are concerned . To carry out the mandate of the Act, the
remedies recommended and ultimately adopted herein
must respond to this challenge.
Upon finding that the Act has been violated, we are sup-
posed to prescribe actions and forebearance which will re-
store the status quo. As practical matter, I doubt that such
can ever truly be done in this case. Nothing short of a
companywide bargaining order could ever prevent this Re-
spondent from profiting by the evil which it has perpetrat-
ed over the past 4 years; yet such an order is plainly impos-
sible in this case.l§ To point Farah in the direction of the
status quo, I will recommend that the Board adopt yet an-
other broad cease-and-desist order directed against con-
duct which violates Section 8(a)(1) and (3) of the Act,20
that the Respondent be required to reinstate the six dis-
criminatees with backpay at 6 percent, computed in accor-
dance with the Woolworth formula,21 and that it be directed
to reinstate, upon request, all unfair labor practice strikers
within 5 days after reinstatement is requested, discharging
if necessary persons hired to take their places.
In addition to posting the usual notice, I will recommend
that the Respondent be required to publish specimen cop-
ies thereof, in English and in Spanish, once a week for 3
consecutive weeks in newspapers of general circulation
published in each of the localities where it has recently
operated clothing manufacturing plants; namely San Anto-
nio, Victoria, and El Paso, Texas, and Albuquerque and
Las Cruces, New Mexico. This recommendation is being
made because many persons affected by the recommended
order have been on strike for many months and may have
gone their separate ways. Moreover, plants in San Antonio
and various cities have been closed so that, in many in-
stances, a conventional notice posting serves no purpose.22
As strong medicine is called for in this case, I will also
recommend other remedies which the Board has previously
ordered in aggravated situations; namely that the Respon-
dent be required to grant the Amalgamated access for a
period of 1 year to the use of its bulletin boards in plants
which still remain open,23 and that Farah provide the Am-
algamated for a period of 1 year a current list of the names
and addresses of all of its production and maintenance
employees in all of its plants.24
' H. W. Elson Bottling Company, 155 NLRB 714 (1965); J. P. Stevens &
Co., 157 NLRB 869 (1966).
20 N. L. R. B. v. Great Atlantic & Pacific Tea Company, 277 F.2d 759 (C.A.
5, 1960).
21 F. W. Woolworth Company, 90 NLRB 289 (1950).
22 Schill Steel Products, Inc., 161 NLRB 941 (1966).
21 Scott, Inc., 159 NLRB 1807 (1966): Great Lakes Screw Corporation, 164
NLRB 151 (1967).
24 J. P. Stevens & Co., 163 NLRB 227, enfd. 417 F.2d 533 (C.A. 5, 1969):
Garwin Corporation, 169 NLRB 1031 (1968).
As previously indicated both the record in this case and
the record in previous Board cases indicate beyond perad-
venture that, throughout its entire system, this Respondent
has engaged in a broad gauged antiunion campaign con-
sisting of glaring and repeated violations. It has also be-
come apparent that one element in this high-level strategy
of massive and lawless resistance is seemingly endless liti-
gation involving violations of the same kind and character
as found herein. While Respondent may seek to litigate for
the purpose of lending to its chosen course of conduct a
patina of respectability, this Agency litigates for the pur-
poses of carrying out its congressional mandate to protect
employee rights. Previous orders and decrees have not
served to achieve such ends with respect to this Respon-
dent.
Faced with a similar but less aggravated situation, the
Board, in a case called Tiidee Products, Inc., 194 NLRB
1234 (1972), enlarged its remedial arsenal by assessing
costs against a respondent whose posture in litigation was
found to be frivolous. In this case, we are confronted by
the latest but possibly not the last, in a line of litigated
cases in which this Respondent has been found guilty of a
repetition of the same kind of pervasive and serious unfair
labor practices previously condemned. In meeting the com-
plaint herein, the Respondent failed to contest most of the
individual 8(a)(1) allegations . Its principal defense to the
discharge allegation is that certain employees whose time-
cards were punched out, whose tools were checked in, and
who were ordered out of the plant as "trespassers" were
not fired but in fact quit their jobs. Such a defense fits my
definition of "frivolous."
Moreover, at the time this Respondent was engaging in a
repetition of its previous illegal conduct, it was subject to
the terms of a final court decree directing it to cease and
desist from such conduct. Accordingly, in addition to being
unfair labor practices, the conduct found herein was also
contemptuous of a decree of the U. S. Court of Appeals
for the Fifth Circuit. Had the General Counsel prosecuted
this case before a special master seeking an adjudication in
civil or criminal contempt, he would have sought, and
probably would have been awarded, the costs of prosecu-
tion, including attorney fees, witness fees, and transcript
costs, and other incidental expenses, because such costs are
normally awarded in contempt cases. See, for example,
N.L.R.B. v. Schill Steel Products Company, 480 F.2d 586 at
599 (C.A. 5, 1973).25 The General Counsel elected, as it
often does, to prosecute this matter as an original unfair
labor practice case, but such an election of a forum in no
way detracts from the contemptuous nature of the conduct
which was litigated. I see no reason why this Respondent
should be spared the expenses of prosecution, nor why the
taxpayers and the Charging Party herein should be out of
pocket from what they would normally recover, merely be-
cause of the election of a forum for prosecution. Accord-
25 See also Schauffler v. Plumbers Local 420, 148 F.Supp. 704 (D.C., 1956);
Crane v. Gas Screw Happy Pappy, 367 F.2d 77 (C.A. 7. 1966): W. E. Bassett
Co. v. Revlon, 435 F.2d 656 (C.A. 2, 1970); Charles Pfizer and Co. v. Davis
Edwards Pharmacal Co.. 385 F.2d 533 (C.A. 2, 1967); Folk v. Wallace Busi-
ness Forms, Inc., 394 F.2d 240 (C.A. 4, 1968); Lichtenstein v. Lichtenstein,
425 F.2d I I I I (C.A. 3, 1970 ); Barron and Holtzoff. Federal Practice and
Procedure, Sec. 1197.
FARAH MANUFACTURING CO., INC. 319
ingly , I will recommend to the Board that a so-called Tiidee
remedy be applied against the Respondent in this case.
[Recommended Drder omitted from publication.]