Hortex Manufacturing Co, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1151 (N.L.R.B. 1964)

HORTEX MANUFACTURING COMPANY, INC. 1151
I think his layoff was completely within the prerogative of management, and there-
fore I find that the allegations of the complaint in regard to the violation of Section
8(a)(3) in respect of Giles have not been sustained. I find his interrogation a
violation of Section 8 (a) (1) .
4. I find that Leon Tubbs was discharged on September 27 for cause in that he
was an unsatisfactory employee because of the many garnishments levied against his
earnings by creditors, and because he deceived his Employer regarding his financial
status after he had been warned by the Employer that any future garnishments would
result in disciplinary action against him by the Respondent. As in the case of Giles,
it is true that there was discussion between Tubbs and Manuel Eskind regarding the
Union. I accept the testimony of Eskind over that of Tubbs to the effect that Tubbs
himself made the offer to vote against the Union 'should Eskind overlook the prior
garnishments, bankruptcy, and subsequent garnishments of Tubbs. My findings in
this respect I believe to be supported by the testimony of Business Agent Broda in
regard to the meeting between Broda and Sanders and the Messrs. Eskind, when
Brody and Sanders appeared on behalf of Tubbs to ask for his reinstatement.
I find, therefore, that the General Counsel has sustained by proof supported by
admissions in the pleadings that the Respondent engaged in unfair labor practices
in violation of Section 8(a)(1) of the Act, as set forth above. I further find that
the General Counsel has failed to sustain the burden of proof to show violations of
Section 8(a)(3) and Section 8(a)(5) of the Act, as alleged in the complaint.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) in violation of-the rights guaranteed to its em-
ployees by Section 7 of the Act, I shall recommend certain affirmative action and
shall recommend further that the Board enter a conventional remedial order.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices ' in violation of
Section 8(a)(3) and (5) of the Act, as set forth in the complaint.
4. The Respondent, by interrogating its employees concerning their membership
in, or activities or concerted activities on behalf of, the Union, has in-
terfered with, restrained, and coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act, thereby engaging in unfair labor practices affecting
commerce within the meaning of Sections 8 (a) (1) and 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Vortex Manufacturing Company, Inc. and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Case No. 28-CA-944.
June 29, 1964
DECISION AND ORDER
On March 12, 1964, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-.
cision. He further found that the Respondent had not engaged in
147 NLRB No. 118.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other unfair labor practices alleged in the complaint Thereafter,
the Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Jenkins]
The Board has ieviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed The
iulings aie heieby affirmed The Board has considered the Trial
Examineis' Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified below
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, with the following modifications
1 Eliminate the final portion of provisions 1(a) and (b), beginning
with the word "except"
2 Amend the corresponding portions of the Appendix accordingly
3 Amend the second sentence of provision 2 (c) to read
Copies of said notice in both English and Spanish, to be
furnished
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard at El Paso, Texas, on November 4, 5, 6, 7, and 8, 1963,
before Trial Examiner Martin S Bennett The complaint 1 alleges that Respondent
Hortex Manufacturing Company, Inc, herein called the Respondent, had engaged
in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of
the Act Briefs have been received from the General Counsel and Respondent
Upon the entire record in the case, and from my observation of the witnesses,
I make the following
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Hortex Manufacturing Company, Inc, is a Texas corporation maintaining a place
of business at El Paso, Texas, where it is engaged in the manufacture and sale of
pants, slacks, and jeans for boys It annually sells and ships products valued in
excess of $50,000 directly to points outside the State of Texas I find that the
operations of Respondent affect commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5) of the Act
'Issued September 19 1963 , and based upon charges filed April 24 May 16 June 7 12
and 26 and July 9, 1963
HORTEX MANUFACTURING COMPANY, INC. 1153
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
The Union had enjoyed contractual relations with Respondent for some years
prior to the expiration of their last contract on December 31, 1962. Renewed or-
ganizational activity by the Union resulted in the filing by Respondent of a petition
for an election on January 3, 1963, and the subsequent loss by the Union of an
election held on May 2, 1963. The issues presented herein are whether Respondent
(1) promised employees benefits for abandoning union activities, threatened them
with loss of jobs and benefits if they continued their union activities, and announced
that it would never sign a contract with the Union; (2) kept a union meeting under
surveillance; (3) discriminatorily discharged three employees, Consuelo Molnar,
Maria Tornero, and Geraldo Ronquillo; and (4) refused to bargain by refusing to
process a grievance over Tornero's discharge through the final step of arbitration.2
B. The discharges
1. Consuelo Molnar
Consuelo Molnar worked for Respondent approximately 14 years prior to her
discharge on October 30, 1962. Her job was that of "setting fly"; this is the joining
of the zipper to the pants by use of a sewing machine. The General Counsel alleges
that Molnar was discharged because of her prominent union activities, whereas
Respondent replies that she was discharged for failure to make her production quota.
The latter is a specified minimum number of garments, as decided by management,
to be turned out daily by an operator.
Molnar held a prominent position in the Union. She was president from 1956
through June 1962, at which time she became chief shop steward. In the latter
role, she most actively assisted employees in the processing of grievances and per-
sonally took them up with various supervisors all the way through top manage-
ment. Indeed, Yolanda Macias, general supervisor over the entire sewing room,
testified that she was dissatisfied with Molnar because she devoted excessive time to
processing union matters in the company office, this affecting her production: It is
clear, however, that Respondent does not challenge this union activity as such, con-
fining its defense solely to her allegedly low 'production and warnings therefor.
As for Molnar's low production, it is clear that this was a new development for
there had been no recent difficulties with the level of her production prior to the
events treated herein. Her production was consistently high prior to a 3-week leave
of absence in August 1962. Upon her return in the latter part of August, she was
informed by then Plant Superintendent Williams that her previous assignment on
line 61 had been changed; that this line had been divided into two new lines, line
61 and line 62; and she was now assigned to line 62 to perform the set fly operation?
It is solely Molnar's performance from the end of August through October 30
on line 62 that Respondent advances as the reason for her discharge. It has offered
in evidence warnings to Molnar on September 20 and 26 which are critical of her
low production. There are, however, a number of reasons why Respondent's con-
tentions herein do not stand up. These are set forth at this point.4
(1) Molnar testified that she encountered much difficulty with her sewing machine
after her return. It would seem that her work on line 62 was on a softer fabric
than that she had previously worked upon and this caused operational problems
with her sewing machine. Indeed Respondent advanced this in support of its posi-
tion. Nevertheless, Respondent's own witness, mechanic Bob Neal, admitted that
two out of three complaints by Molnar about her difficulties during this period were
justified. He further testified that on many occasions an operator will complain
about a machine and his inspection discovers nothing amiss. Stated otherwise,
Respondent knew that a substantial majority of Molnar's mechanical breakdowns and
resulting losses of production were not her fault.
a The name of Molnar erroneously appears in the transcript as Molinar.
3 Line 61 had previously made 133 dozen jeans per day, supplementing a production of
400 dozen by line 60. The new lines, 61' and 62, each turned out SO dozen slacks per day.
Line 60 continued to produce 400 dozen jeans daily.
4 Still other reasons which apply equally to the other alleged discriminatees are set forth
in a later section of this Decision.
756-236-65-vol. 147-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Molnar testified that the bartack operator on this production line whose
operation preceded that of Molnar constituted a production bottleneck, this per-
force affecting Molnar s production, whereas Respondent contends the precise op
posite General Manager Richard Arnold testified that the bartack operator was
turning out more work daily than Molnar and identified a study made of their
respective outputs, the figures tending to support him in this respect He further
testified that a fill in operator had been brought in to help Molnar in her operation
so that she could keep up with the garments passing through her work station 5
However, Arnold later admitted that this survey made on 6 production days during
an 8 day period in the month of September discloses that on at least one of these
dates a fill-in operator had been assigned to assist the bartack operator and not Mol
nar And on 2 other days, Molnar, by a small margin, actually out produced the
bartack operator This would demonstrate that on at least several of these occa
sions emphasized by Respondent the bottleneck was not Molnar
(3) To the foregoing is added the fact that Respondent saw fit to discharge this
very bartack operator, Maria Encino, on October 31, the day after Molnar was
discharged, for the reason, as reflected in Respondent's records, that she was `Unable
to do job " Manifestly, this is a far cry from the purported situation of Molnar
being unable to keep up with a presumably competent bartack operator and the in-
ference is warranted that Encino was assisted on more than the one occasion Arnold
admitted
(4) Actually, on October 30, Respondent saw fit to discharge still another bartack
operator on this line, Ofelia Fomett, who worked on back pockets Here, too, the
reason was that she was unable to do the job , this also tends to support the position
of the General Counsel herein
(5) In the case of Maria Tornero, discussed below , Respondent has stressed the
fact that two operators with more seniority than Tornero were retained or recalled
to work Attention was also directed to the fact that the contract then in existence
recognized seniority in several areas This serves only to highlight the fact, as
Molnar uncontrovertedly testified , that three named operators with less seniority than
she were put to work on denim jeans after her discharge Two of them , Perez and
Roybal, were new hires and the third, Maria Dorado, was a transfer from another
line Molnar , it is to be noted , had worked on line 60 on denim jeans for approxi-
mately 101/2 years prior to her transfer to line 61 and then to line 62 And it was
line 60 which continued to make the jeans, an operation on which Molnar s com-
petency was not disputed
(6) Respondent makes much of the fact that it abandoned production of 133
dozen jeans per day on line 61 and divided this line into two new lines , 61 and 62,
each pioducing 80 dozen slacks per day However, line 60 still continued to produce
400 dozen jeans per day If seniority was a factor , surely Molnar would have been
considered for line 60 where her production had been so exemplary for years In-
deed Arnold admitted that Respondent had five or six operators on line 60 perform-
ing the set fly operation
(7) In spite of the foregoing , Respondent draws attention to Molnar 's alleged low
production and failure to make quota But note is taken of a warning on Septem-
ber 18 to Dorado , described above , during the latter 's prior assignment, that despite
6 weeks on the job she was making but 50 percent of her quota Significantly,
Molnar's percentages of quota for the last 3 weeks she worked were 71 2 , 65 5, and
76 percent The last was her best week since her return in August and reflects a
rising flow of production Yet, Dorado was assigned to a job on which Molnar had
been exemplary
(8) Turning to the two warnings to Molnar in September , the month prior to her
discharge , that of September 20 states that it is a first warning and points out that
despite "years and years of experience" she is only making 45 percent of her quota
The second is dated 6 days later on September 26 and , in essence , states the same
thing, pointing to her years of experience , the absence of progress , and making but
45 percent of quota However, her actual personnel files reflect a more impressive
performance Her achieved quota for the week of September 15 is 45 1 percent,
that for the week of September 22, 61 8 percent , and that for the week of Septem-
ber 29 , 60 9 percent Obviously , although she was still below quota , the warnings
are not an accurate reflection of her true performance
5 A fill in is an operator who literally does that for absent operators or helps out in
special situations There are only 13 or 14 so classified in the bargaining unit of 650 to
700 persons Because of their variegated tasks and competence they receive one third
premium pay and, at one time Molnar had served as one Discriminatee Ronquilio whose
case is discussed below, filled such a post at the time of his discharge
HORTEX MANUFACTURING COMPANY, INC. 1155
(9) The record discloses that Respondent presented to Molnar in December 1958
an elaborately printed certificate entitled "Certificate of Award." This was in recogni-
tion of 10 years of "Faithful and Efficient Service" with Respondent and her "unusual
loyalty and dependability through the years ." It was signed by two officials of Re-
spondent including President Horwitz. There is nothing in the record to indicate
that this certificate does not mean precisely what it states . Stated otherwise, Re-
spondent does not contend that the certificate is a routine and perfunctory award
devoid of significance which does not accurately reflect Respondent 's esteem of an
employee. This is particularly significant in view of Respondent's turnover of person-
nel, the figures with respect to which are set forth hereinafter.
(10) The General Counsel contends that Respondent is engaging in a numbers
game that does not withstand analysis. He points out that Respondent issued warn-
ings, and two of them to Molnar have been advanced herein, on a free-handed basis.
The warnings to others reflect performances much less satisfactory than that of
Molnar, yet the record does not indicate that they were discharged , at least not as
of the times they were warned . Thus, employee Caballero, assigned to line 60, re-
ceived a warning on September 6, 1962. This line, of course, is the line on which
Molnar was eminently qualified , but on which Respondent did not see fit to place
her. The warning to Caballero pointed out that despite "years of experience" Cabel-
lero had made only 3 percent of her quota. Similarly, employee Rodriquez received
warnings on June 25 and August 1, 1962. The first of these pointed out that she
had not made her quota after almost 1 year on the job and the second noted that
she still failed to meet both production and quality standards.
On September 13, employee Flores was warned that despite "long experience at
bartacking" she was making but 27 percent of her quota and that this was dropping.
Employee Mercada was warned for not making quota for a full year as of Septem-
ber 18, 1962. Employee Fresces received warnings on October 4 and 15, 1962.
The first pointed out that despite previous experience she was making only 37 per-
cent of her quota . The latter stated that despite 3 months on the job, there had
been no improvement and she was making but 40 percent of her quota.
Employee Montes received a warning on October 26, 4 days before Molnar was
discharged in a week when Molnar achieved 76 percent of her quota, to the effect
that despite years of experience she was incurring rejects of 25 percent. This, it
may be noted , was a second warning because on September 14 she received a similar
warning for defective work . And employee Murillo was warned on September 18
that she had achieved her quota only once during the previous year. This is a far'
cry from the performance of Molnar who allegedly merited discipline.
(11) Perhaps a more realistic indication of Respondent 's tolerance of low produc-
tion is reflected in the record of employee Leyva who received a warning on Septem-
ber 13 to the effect that after 3 months he had achieved but 33 percent of quota.
Three months later his percentage had risen to 47 percent , this presumably being in
December . While Supervisor Macias testified that Leyva was currently up to 88 per-
cent of quota , a figure recognized by Respondent as adequate, and President Horwitz
claimed that Leyva was assigned to a job so difficult that no one on it had ever made
quota, this resulting in the job being changed , Respondent's records still disclose that
Leyva did not make a quota for 16 months . This too is far more tolerant than
Respondent 's treatment of a 14 -year veteran who, on the posture most favorable to
Respondent , encountered difficulties only in the last 2 months of her employment.
(12) Respondent does not explain the fact that for some years it had considered
Molnar worthy of supervisorial status. Over 5 years prior to this hearing, the then
superintendent asked her to become a supervisor . And shortly thereafter, still an-
other superintendent also asked her to advance to management . She either declined
or ignored both offers . In February , 1962 , a third top supervisor , Superintendent
Williams, asked her to become a supervisor and invited her to contact him in the
office if she so desired . Molnar did not respond to the invitation . This last invita-
tion is all the more noteworthy because Williams, according to General Manager
Arnold, was a strict disciplinarian who contributed to Respondent 's high rate of turn-
over described below. I find , accordingly, that this invitation from Williams con-
stituted an admission by Respondent of the superior ability and versatility of this
employee.
(13) In sum, a well-qualified operator who had handled various tasks in the
sewing department for many years and enjoyed a good record would not normally
be discharged absent some cogent reason therefor . Respondent 's assigned reasons,
directed to a recent development, simply do not hold water in view of existing con-
ditions in this plant. The evidence preponderates , rather, in favor of the General
Counsel 's position that the cogent reason for the discharge was the elimination of
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an active and prominent union official in anticipation of the organizational cam-
paign then commencing and in anticipation of Respondet's withdrawal of recognition
after the expiration of the contract I so find
2 Maria Tornero
Maria Tornero entered the employ of Respondent in February 1954 and was laid
off on or about October 19, 1962 She testified that General Supervisor Yolanda
Macias told her at that time that the layoff would last for a period of 1 or 2 weeks
at the most and that she was not being discharged In view of her tenure of 8 years,
this seems quite likely 6 Tornero was quite active in the Union and had personally
solicited approximately 100 employees to join the Union during 1962 And in
June of that year she was elected vice president
Tornero uncontrovertedly testified, and I find, that on the afternoon of December
12, 1962, Tornero, still in layoff status, distributed union leaflets directly in front of
the plant This was the first occasion she had done so Also participating in this
activity were discriminatee Molnar and Union Representatives James Boyer and
Antonio Pena, all known to Respondent's officials While so engaged, Tornero
noticed that Personnel Manager Armando Chapa was observing her through the
glass doors of the plant, some 25 feet distant The following morning December
13, she received a letter from Respondent which was postmarked December 12
It contained a termination notice and assigned as a reason only excess personnel
The slip, as Respondent stresses, bore the date of December 3 The General Counsel
alleges that Tornero's discharge resulted from her union activity on December 12
Respondent contends that it merely eliminated certain excess personnel and that
Tornero was among them
General Manager Arnold testified that the decision to discharge Tornero had been
made on December 3 and that she was 1 of 20 or 25 who received similar treatment
The delay was allegedly caused by the fact that the regular personnel clerk, Apodaca,
was on maternity leave and another girl, not named, served as her replacement
It is contended that the latter was not as skilled as Apodaca, as a result, work piled
up and the notices were not mailed until December 12 Arnold did not know whether
the instructions given to the clerk were oral or in the form of a memo, although the
list of names allegedly was in written form The following considerations serve to
refute Respondents position herein
(1) While Respondent adduced evidence to the effect that Tornero had limited
talents in the plant, despite 8 years' tenure, the fact is that her alleged limitations
did not play a part in her layoff or discharge, these being pegged solely to a shortage
of work and excessive personnel
(2) Attention is drawn hereinafter to Respondent's extremely high turnover of
personnel Tornero's production record had been excellent prior to the time she
was off for 2 weeks in August She thereafter worked for Respondent for 9 weeks
on another operation during which her production dropped, a fact emphasized by
Respondent But this, it must be noted, was relatively minor when compared with
the many cases where low production was tolerated for many months and did not
involve changed assignments Some of these have been previously set forth in the
discussion of the case of Molnar
(3) Neither Apodaca nor her unnamed replacement testified as a witness herein
Nor is the group of 20 or 25 allegedly discharged with Tornero as of December 3
identified Accordingly, the record does not disclose how an inefficient employee
waited 9 days to send out a printed form notice to which was added the date, the
employee's name, and approximately 10 other words, obviously something that a
2-fingered typist could perform in 2 minutes at the outset This only serves to
emphasize the fact that Chapa and Macias selected those on the list, according to
Arnold, and that it was Chapa who observed Tornero s distribution of leaflets on
December 12 7
(4) It is interesting to note the warning but not termination notice given on
December 4, 1962, to employee Rosario Martinez This actually consisted of a dou
ble warning for low production and quality The notice pointed out that despite years
of experience, Martinez was making less production than when he had started on
the style and was only at 52 percent of quota Attention was also directed to the
poor quality and the high number of rejects As is apparent, this was the day after
the decision to discharge Tornero was allegedly made
9 Macias testified only that she told Tornero that her layoff was for an indefinite period
of time
7 Chaps, testified herein but was not questioned concerning this incident
HORTEX MANUFACTURING COMPANY, INC 1157
(5) Tornero uncontrovertedly testified that she was I of 30 employees in line 61
and that only 3, including herself, were laid off in October Of the other two, one
was recalled in November and the other discharged in December Yet Tornero,
despite her lengthy tenure, was not recalled until October 1963 together with the
other two complainants, presumably a move based upon considerations of backpay
liability
(6) Even Respondent's evidence to the effect that Tornero was not competent on
ceitain operations lacks support Arnold testified that she was not satisfactory
during her last 9 weeks when she was assigned to making side seams rather than
to closing front pockets, the task at which she had previously excelled
Respondent has offered in evidence a warning to Torneo, dated September 13,
pointing out that she had achieved but 26 percent of her quota, despite over a month
on the job, as well as a warning on October 15, pointing out that she was only at
41 percent of quota However, General Manager Arnold testified that he prevented
Superintendent Williams from discharging Tornero at one point because of her pro
duction record In fact, he wrote a memo on September 28 to the files to the effect
that Tornero could be "salvaged " He pointed out therein that conditions had im-
proved immensely now that the 'bartack is in correct place,' this referring to an
operation not performed by Tornero
(7) Still other instances of disparate treatment are of interest As noted, Tornero
was laid off after 9 weeks of low production By contrast, employee Juarez received
a warning on November 6 of no progress since September 15 and of making but 36
percent of quota, as of the time of her layoff, Tornero had exceeded the 40 percent
bracket for 3 weeks
Employee Perez was warned on September 28 for the second time that she had
not made her quota since April and was then only at 57 percent, she is still employed
by Respondent Employee Alicia Macias was warned on September 18 that after
10 months on the job she had advanced only to 58 percent of quota On Novem-
ber 5 , having since risen to 69 percent , she was again warned As previously noted,
employee Murillo received a second warning on September 18 to the effect that she
had made her quota but once in a year and was then only at 66 percent
In the posture most favorable to Respondent , it may well be that Respondent did
eliminate a group of superfluous employees on December 3 I am convinced, how-
ever, on a preponderance of the evidence , that Tornero was not among them and
that the decision to discharge her was made on December 12, when her notice was
mailed I so find In view of all the foregoing considerations , I am convinced that
Maria Tornero was discharged on December 12, 1962, because of her union activities
on that date
3 Geraldo Ronquillo
Geraldo Ronquillo entered the employ of the Respondent in July 1961 and was
discharged on July 1, 1963 His classification was that of serger , an operation in
which he stitched the inside edge of the leg seam to prevent raveling In the last
9 or 10 months of his employ, he functioned as a fill-in operator As previously set
forth , this job denotes skill as an operator , usually in several capacities, and com-
mands a premium pay of one -third in excess of the regular rate This is because
the operator is shifted about from task to task
Ronquillo was a member of the union organizing committee and had solicited the
union membership of 60 or 70 employees He served as an observer for the Union
at the election held on May 2, 1963 , in Case No 28-RM-87 Unlike the two earlier
discharges , it is Respondent's contention that Ronquillo produced too much because
of his speed , thus making too many rejects or seconds Respondent 's records do
demonstrate that he exceeded his quota , in fact , consistently so
Prior to Ronquillo's role as observer at the election , he experienced relatively little
difficulty with his work While Respondent has adduced evidence that Ronquillo
received four warnings during September and October 1962 , Ronquillo uncon
trovertedly testified that at least three of these had been taken back by Respondent be
cause they were admitted to be unjustified and unwarranted In any event, from
October 1962 until April 1963 Respondent found no fault with his work There
were three warnings on April 5, May 30, and June 28, 1963, the first two for quality
and the third for carelessness It is chiefly the 1963 conduct on which Respondent
places reliance Here as well , there is much evidence , emphasized by the General
Counsel , which discloses that Ronquillo 's performance was no worse, if not better,
than that of employees who may have received warnings but very definitely were
not discharged
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Thus, employee Rosa Ojeda was warned in March 1961 that she had failed
to meet production standards or show any improvement for 8 consecutive weeks.
Nevertheless, over 1 year later, she received still another warning in July 1962 con-
cerning her failure to meet production standards.
(2) The precise percentage of Ronquillo's rejects is not disclosed, although Chief
Floorlady Macias complained that on one occasion he had made five dozen seconds.
By contrast, employee Montes received warnings for excessive repairs which, as of
October 1962, constituted 25 percent of her production.
(3) Employee Torres was warned for the second time on October 1962 that her
rejects amounted to 33 percent of her production; employee Castro was warned for
making rejects constituting 27 percent of her production; employee Foncesca was
warned for "very poor quality" and 3 months later was warned again for never
meeting production standards; employee Cruz received a second warning in Octo-
ber 1962 for making rejects at a 60 percent rate; employee Estrada was warned for
excessive repairs amounting to 20 percent of her production; and employee Vargas
received a second warning in October 1962 stating that his rejects had been increas-
ing for 5 weeks and had risen to a figure of 28 percent, in excess of the 5 percent
maximum allowed by Respondent. In sum, one may only conclude that rejects or
errors were common and that Respondent has made more of Ronquillo's case than
it did in similar cases.
(4) The underlying fact that Respondent retained Ronquillo'for 9 or 10 months
as a fill-in operator clearly is a badge of his competence. The record discloses no
reluctance on the part of Respondent to terminate employees without advance notice.
I accordingly believe that, were Ronquillo as bad as Respondent contends, he would
have been removed from the fill-in operator job far earlier in the game, because this
is a most critical position.
(5) Also relevant is the fact that Ronquillo was 1 of only 13 or 14 fill-in operators
in the plant. With a bargaining unit of 650 to 700 and a total complement of 800
to 850, this indeed reflects Ronquillo's high degree of competence, particularly in
view of the premium pay of one-third awarded to this classification.
(6) As noted, Ronquillo did receive three warnings in 1963. He,manifestly was
a most meticulous and precise witness with a sharp recollection of dates and incidents;
he claimed that many of his difficulties stemmed from mechanical problems with the
sewing machines and for faulty cuttings passed on to him by inspectors. Respond-
ent did present the testimony of mechanic Escandon who worked on Ronquillo's
machines. He testified that Ronquillo had more complaints about the machines than
the other sergers; that frequently the problem was minor; and that "not all the time"
were his complaints justified. The record does not disclose that the other sergers
produced as much as Ronquillo, and it would seem that they did not, in view of
Respondent's desire that Ronquillo produce less.
Similarly, during his last few weeks, his supervisor, Garcia, while attributing more
complaints to Ronquillo than to others, admitted that there is always trouble with
the machines each day. One may assume that the sewing machines have delicate
adjustments which require regular servicing in view of their heavy use. Indeed, the
presence of full-time repairmen in. the plant would so indicate. ,
(7) Tending to corroborate Ronquillo is the fact that Inspector Consuelo Perales,
who inspected and cleared work coming to Ronquillo, was warned on May 30, 1963,
for passing defective work. This was the precise date on which Ronquillo claims
that he experienced difficulty because an improper cut had been passed on to him.
He also attributed poorly cut material as being passed on to him by Inspector Gracela;
the last name of the latter is not disclosed and she was not called as a witness .8
(8) What I deem particularly significant in the case of Ronquillo as well as in
the cases of the two others described above, is the implausibility of Respondent's
position. On the one hand, both President Horwitz and General Manager Arnold
emphasized Respondent's high costs of production due to excessive turnover of
personnel. President Horwitz testified that it cost Respondent $1,200 to $1,800 to
train a new operator and that there is a great incentive to retain an employee and
not terminate him. Similarly, it takes from 6 weeks to 6 months to train a new
operator.
6 President Horwitz testified that it was unlikely that anything cut on May 30 would
get to Ronquillo until 3 or 5 days later; hence, a warning on May 30 reflected something
noticed by the inspectors that same day. This is not established in the record. It is at
the very least equally arguable that the warning was issued when inspection was made at
Ronquillo's stage of production or that the inspector 's warning reflected work performed
several days earlier.
HORTEX MANUFACTURING COMPANY, INC. 1159
Respondent's own records disclose that 541 employees of a total of 650 to 700
or 800 to 850 employees , depending on whether the unit or the total complement is
considered , left its employ in the calendar year 1962. Even on the basis of the
higher figure , this reflects a turnover rate in excess of 60 percent . Hence, I fully
concur in Respondent 's contention that it has personnel problems in terms of high
turnover . And as President Horwitz noted , this has served to place Respondent's
unemployment tax in the highest possible category.
In essence , Respondent , on its own case, had every incentive in the world to try
to save Ronquillo in particular , because as Assistant General Supervisor Juan Pons
conceded , the majority of employees never exceed their quota. This serves only
to highlight Respondent 's improbable conduct in the case of Ronquillo , as well as
in those of Molnar and Tornero. The latter two were admittedly competent in
certain operations . Ronquillo's sin was that he produced too much. In this context,
with Respondent greatly concerned over tremendous personnel turnover , costs in
training new personnel , and a high state unemployment tax rate, I believe that,
absent discriminatory motivation , Respondent would not have discharged Ronquillo,
Molnar, and Tornero.
All three had a common bond of prominent union activities going beyond mere
union membership . I am convinced on a preponderance of the evidence that but
for such union activities , these three employees would not have been discharged.
I accordingly find that Respondent has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act. I further find that such conduct
is violative of Section 8(a) (1) of the Act.
C. The alleged refusal to bargain
The complaint alleges that Respondent refused to bargain by refusing to process
a grievance concerning the discharge of Maria Tornero, found above to have been
discriminatorily discharged on December 12, 1962, through the final step of arbitra-
tion provided by their contract . The last contract between the parties expired on
December 31, 1963, but , on December 30, Tornero filed an original grievance in the
matter. Unsuccessful in the first two steps of the grievance procedure , the Union
invoked the arbitration provisions of the contract on February 8, 1963.9
On February 15, counsel for Respondent advised the Union that it would not
process the grievance further. He pointed out that the Union was simultaneously
following two routes, ( 1) the unfair labor practice charges then pending before
the Board, and (2 ) arbitration ; that Respondent did not wish to go to the time,
trouble, and expense of defending the case twice ; and that the Union should make an
election as to which procedure it would follow . This is still Respondent 's position,
for it claimed at the hearing that it had invoked "the doctrine of election."
Assuming the Union 's majority representation in an appropriate unit for the
purposes of this discussion, I agree with the General Counsel that it is well established
that an employer is not excused from his duty to bargain because of the pendency
of unfair labor practice charges. Hence, I see no merit to the contention predicated
upon election of remedies , although , as noted, . the Union unilaterally could have
invoked arbitration under the contract and, it would seem , could have enforced
said right in the courts . United Steelworkers v. American Manufacturing Co.,
363 U.S. 564, and Charles Dowd Box Co., Inc. v. John F. Courtney, et al., etc.,
368 U.S. 502.
But the Board has held that an employer 's violation of an arbitration provision of
a contract is not per se an unfair labor practice , absent other circumstances not
present herein. See Central Illinois Public Service Company, 139 NLRB 1407,
1418, and cases and legislative history cited therein . ' So far as I can determine,
the Board has not abandoned this position . And, in any event , the restoration of
Tornero to work, which has been accomplished , would achieve the optimum
remedy. Accordingly , I shall recommend that this allegation be dismissed.
D. Surveillance
The General Counsel further alleges that Respondent engaged in surveillance of
a union meeting on May 1, the day prior to the representation election on May 2
9 In its letter , the Union referred to article II, sections B and C, which provide that an
employer shall not discipline or discharge except for proper cause . Article IV of the same
contract provides that grievances alleging a violation of the agreement may be jointly
submitted to arbitration. I note that it further provides that " if either party refused to
join then the other may act singly " in requesting arbitration.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Case No. 28-RM-87. The record well demonstrates that much passion existed
on both sides of the question. That an incident took place is clear and there is little
conflict as to the facts although the parties differ as to their interpretation and the
evaluation to be made. Specifically, the testimony of Ana Mesa, who is not employed
by Respondent, is to be considered against the partially opposing testimony of
General Supervisor Yolanda Macias.
Respondent's plant and adjoining parking -lot are located on and front upon the
east side of South Cotton Street which runs roughly north and south. As luck
would have it, the union hall is located on the west side of the same street, North
Cotton Street 10 and is at the southwest corner of intersecting Olive Avenue which
runs east and west. The parking lot and the plant are respectively 1 block and
11/2 blocks south of the union hall. The entry of the hall is at street
level and the doorway is directly on the corner of North Cotton Street and Olive
Avenue. One standing outside this doorway has a clear view of the plant and
parking lot.
Ana Mesa had previously worked for Respondent and currently has relatives
employed there; being interested in the election, she attended a union meeting held
at the hall on May 1. Because the hall was crowded, she stepped outside onto the
sidewalk, placing the time as approximately 6:30 p.m. Happening to look in the
direction of the plant, she observed Macias, accompanied by Floorladies Sanchez
and Gonzales, enter Sanchez' automobile in the parking lot. They slowly drove
north on South Cotton and then on North Cotton Street. The car passed the inter-
section of Olive Avenue and approached the next intersecting street which is Magoffin
Avenue; the latter also runs east and west. At that point, they turned left or west
on Magoffin Avenue.
Anticipating that they might loop the block and pass by the union hall, Mesa moved
over to the Olive Avenue side of the intersection. Her expectation proved correct,
for very shortly a car with the three floorladies appeared on Olive Avenue proceeding
east. It stopped by the curb at the intersection with North Cotton Street approxi-
mately 9 feet from Mesa. There is no traffic light, but there is a stop sign at this
intersection requiring an intersection stop or halt. Mesa estimated that the car
stopped for approximately 1 minute during which Macias leaned out and shouted
"look at Ana." Mesa in turn went over to the union hall and shouted to those on
the inside that their floorladies were outside. At this point, the car sped away rapidly,
turning right and south on North Cotton Street in the direction of the plant.
Only Macias testified for Respondent concerning the incident. She placed the
hour at 5:35 or 5:40 p.m. and claimed that the trio was en route to a shopping center
known as Fox Plaza which is roughly southeast of the plant. It may be conveniently
reached by either of two west-east routes. _ One of these is Alameda Avenue and
the other is Paisano Drive. The latter is south of the plant and is reached by going
in the opposite direction. Alameda Avenue is to the north and is intersected by
North Cotton Street. On the map, which is^ in evidence, there would appear to be
little to choose between the two routes. The trip to Fox Plaza takes less than one-
half hour, but Macias did not know whether it could be done in less than 15 minutes;
it would seem not, in view of the distance and the speed limits described below.
According to Macias, they were traveling north on Cotton Street and intending
to turn right and east on Alameda." While still on North Cotton Street, according
to Macias, she decided that they should go by way of Paisano Drive, because the
latter has a faster speed limit of 45 miles per hour in contrast with that of 30 or 35
miles per hour on Alameda Avenue. Accordingly, she instructed driver Sanchez to
proceed by the other route. As is apparent, this required a reversal of direction from
north to south.
It is clear that this instruction was made very early on the trip because Sanchez
turned left on Magoffin Avenue only one block beyond the union hall located at the
intersection of Olive Avenue and North Cotton Street. As a result, she claimed that
they passed by the union hall and stopped only for the stop sign on the corner. She
admitted seeing Mesa at the time, but denied speaking with her. There are several
inconsistencies in Macias' story which lead me to conclude that she was not truthful
concerning this episode.
1o The street changes its name from South Cotton to North Cotton between the two
locations, but continues in the same direction.
11 Actually they would turn right on any of several streets which intersected or led into
Alameda. Olive Avenue was such a street and so was Magoffin Avenue, as well as sev-
eral streets beyond Magoffin Avenue.
HORTEX MANUFACTURING COMPANY, INC. 1161
(1) Macias admitted that the stores in Fox Plaza close at 6 or 6:30 p.m. She
attempted to place the hour of her departure as 5 or 10 minutes after the 5 : 30 closing
hour in the plant , unlike Mesa who placed it at approximately 6:30 p .m. Inasmuch
as the employees had managed to leave work , had proceeded from the plant to the
union hall , and had assembled in the union hall and apparently commenced the
meeting, subsequent to which all of the supervisors left the plant , it would seem that
at the very least the hour was closer to that set by Mesa rather than Macias. In
this posture , the trio was hardly in a position to have time to engage in a shopping
expedition.
(2) If Macias wanted to change the route to the one south of the plant , Paisano
Drive, the map discloses that this could have been done in several other ways in-
cluding a U turn on Cotton Street, a right turn from Cotton Street and then proceed-
ing east or southeast by intersecting streets, or by turning left as they did on Magoffin
and proceeding south on the street parallel to Cotton Street , shown on the map as
Brown Street, which intersected Cotton Street in the vicinity of the plant. Accord-
ing to the map, this was an even shorter route than the one they took which brought
them by the union hall; furthermore, it would have avoided a left turn from Brown
Street and a right turn by the union hall.
While a stop sign is of course to be observed, it is the choice of the route which
is significant here , and Macias admitted that she could have changed the route
without passing by the union hall. Moreover, the group observed the stop sign by
stopping directly at the curb, a position more consistent with parking than with
taking a right turn . Hence, I believe the testimony of Mesa that the stop lasted
approximately 1 minute and that she was addressed derisively by Macias.
(3) While Macias admitted familiarity with Paisano Drive as a faster route, she
contended that they embarked upon the original route because of•her concern that
they might be held up at a traincrossing between the plant and Paisano . But this
fails to explain why she allegedly changed her mind so soon after the start of the
journey; certainly the problem of the traincrossing still existed.
(4) She testified finally to still another change of mind. For after taking the
faster route on Paisano Drive , the group proceeded to her home located near Fox
Plaza instead of to the stores. I can only attribute this to her concern that she had
placed herself at Fox Plaza after the stores had closed or at the very least , around
closing time.
(5) Macias admitted that she knew a union meeting was scheduled at the union
hall that evening.
(6) Finally, unlike Macias , Mesa is corroborated by the testimony of employee
Maria Morales who held a conversation with Macias on the following morning im-
mediately prior to casting her ballot in the election . Macias commenced the con-
versation with Morales'and Morales referred to the fact that Macias had been seen
outside the union hall . According to Morales , Macias then replied, "I 'm going to
tell you that I did go , to the union . . . We were in a car, we went around several
times and what does that matter ." Morales commented that she had not seen this,
but now that Macias had confessed , she believed her. At this point , Macias again
said, "Well I did go ." While Macias gave her differing version of the May 1 incident,
she was not questioned concerning this statement and I credit Morales herein.
I am convinced from the foregoing that Macias with her two subordinate supervi-
sors deliberately routed the car.so as to circle the block and make a stop directly in
front of the front entrance to the union hall which is located on the ground floor.
They stopped for approximately 1 minute at the curb in a position to see and be seen
by those inside the hall. I find that this was done with the intent of intimidating or
coercing those assembled therein by demonstrating that they were under surveillance.
I find that Respondent has thereby engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
E. The baseball game
The election was held on May 2 and the Union lost. On Saturday afternoon,
May 4, a baseball game took place between employee teams of Respondent and
another firm aptly named Union Manufacturing Company. The site was a local-
park and the attendance was very light, consisting primarily of employees of the
respective concerns. The General Counsel contends that threats violative of Section
8(a)( I) of the Act were made by Respondent's supervisors on this occasion.
The General Counsel adduced testimony from five witnesses,- Irma Carrillo,
Evangelina Mendez, Leonila DeAnda, Ana Mesa, and Elena Reyes. These
five chose to sit on the left side of the stands together with the supporters of the
Union Manufacturing team, unlike other Hortex employees who seated themselves
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.on the right side together with General Supervisor Macias and Floorladies Gonzales
and Sanchez. The five on the Union Manufacturing side of the stands rooted vocif-
erously for the Union Manufacturing team and at least two of them, Mesa and
Reyes, agree that they, if not the rest of their igroup, also shouted derisive remarks
at the Hortex players.
This conduct resulted from a rumor circulating in the plant that Respondent Hortex
had procured antiunion votes in the election from members of its baseball team
through some form of team support, presumably new baseball equipment or funds
therefor. As a result of this belief, the group of five, or some of them, saw fit
during the game to accuse the Hortex players of having been bought out by
management.12
According to Carrillo, the three supervisors overheard their group cheering the
rival team and Gonzales then declared that it was obvious the group resented the
loss of the election by the Union. The girls announced that they would continue to
work for the Union and Gonzales replied that they would be discharged on Monday.
Reyes arose and asked who would discharge them. Macias responded at this point
that she would do so. Macias also told DeAnda that she would be discharged and
as a result would lose her car and home. The testimony of Mendez was substantially
the same.
DeAnda testified that the group arrived and commenced cheering for the rival
team. Gonzales then called her a magpie; DeAnda responded that she and Gonzales
were the same age; and Gonzales commented on DeAnda's bleached hair. Near
the end of the game, Gonzales asked DeAnda to come over and speak with Super-
visor Macias. DeAnda replied that Macias could come over to her. After more
talk, Macias announced that she would discharge DeAnda, that DeAnda would lose
her home and. car and that DeAnda was "mad" because the election had been lost.
Macias allegedly also told Reyes that she would discharge her as well and that the
girls were angry because they had lost the election.
According to Reyes, they cheered for the opposing team and the floorladies yelled
at DeAnda who ignored an invitation to come over and speak with Macias. They
told DeAnda that she would be discharged on Monday and Macias announced that
"You are all mad because you lost the election." DeAnda replied that they were
just "starting" and that they had not lost. Gonzales then stated that DeAnda would
be discharged on Monday with the resulting loss of her car and home and would
have difficulty in getting another job. Reyes spoke up and said that she thought the
floorladies were not acting as such at the ball game, and Macias and Gonzales
stated that she too would be discharged, again pointing out that the hard feelings
of the girls stemmed from the loss of the election.
According to nonemployee Ana Mesa, the group rooted for the other team and
the floorladies accused them of doing so because of anger over the loss of the
election. DeAnda responded that they were just beginning and the cheering con-
tinued. DeAnda and Mesa stated that they were not afraid of the floorladies.
Macias then arose and made the previously stated threat to DeAnda concerning the
loss of her home and car, as did Gonzales.
Macias was the only witness for Respondent concerning this episode. She testified
as to the division in seating of the respective supporters of the two teams and
claimed that a foul ball passed near her. This allegedly caused Reyes to shout
some uncomplimentary terms about the mother of Macias which angered the.latter.13
Macias reminded Reyes of past favors, not specified herein, and Reyes then asked
why Macias did not discharge her and cursed her. Macias told Reyes that she had
the authority to discharge her. She further claimed that only Reyes spoke with
her and that she spoke to no one else. She denied telling the girls that they were
angry because of the loss of the election.
I deem it unnecessary to resolve this conflict. On the one hand, the versions of
the witnesses for the General Counsel lend themselves to the interpretation that
the floorladies threatened them with reprisals because of their union activities. On
the other hand, the evidence is at the very least equally susceptible of the inter-
pretation that the floorladies resented the deportment of the girls at the baseball
.game, specifically their rooting for the opposing team and hooting at their own team;
that the floorladies announced that the girls were obviously angry; that they further
stated they assumed that the girls were angry because of the loss of the election,
and that they threatened them with discharge because of their deportment at the
12 They used a Spanish word, described in the record as a vulgar term, and meaning, in
one sense, a traitor.
11 Macias was unwilling to repeat this language.
HORTEX MANUFACTURING COMPANY, INC. 1163
game, a threat not carried out. On the latter posture, I do not believe that this
constitutes a threat of reprisal for engaging in union activities . Accordingly, I find
that the evidence does not preponderate in favor of the position of the General
Counsel and I shall recommend that this allegation be dismissed.
F. Other allegations
Attorney John Price of Fort Worth, Texas, has for some time been retained by
various employers in the State to make speeches to employees who are about to vote
in Board elections. He was so retained by Respondent. Accordingly, he made four
to six talks per day to groups of Respondent's employees on April 29 and 30, 1963.
Each- of these talks took 1 hour or slightly longer. The record does not show to
what extent witnesses herein may have attended the same speech.
It would unduly extend this Decision to set forth all the remarks made by Price.
Moreover, I credit his testimony that he in essence read from the Act, explained
the merits of union representation, properly explained the ramifications of the
Mackay doctrine concerning the replacement of economic strikers, and expressed a
preference for an antiunion vote. All of this is set forth in detail in the transcript.
Stopping at this point, I see nothing to support the position of the General Counsel
that Price went beyond the foregoing. However, there are other considerations which
put a different flavor upon the matter. It appears that top management is basically
bilingual, but the employees with a rare exception speak no English. Price, on the
other hand, knows but a few words of Spanish and cannot speak it. Respondent's
personnel manager, Armando Chapa, was accordingly impressed for use as an 'in-
terpreter. Price had a basic outline of his talk but did not speak from a prepared
text. The issue, therefore, is not what Price said but what Chapa, equally Respond-
ent's agent , translated.
Price did testify that on occasion he verified the accuracy of the translation with
other representatives of Respondent who were present , such as President Horwitz
who is bilingual. There is nothing to show that these other management representa-
tives were better equipped than Chapa or that Horwitz knew Spanish any better than
Chapa had learned English . Moreover , the record indicates that on a number of
occasions at the hearing , differences arose as to the precise shading given interpreta-
tions even by the official interpreters herein.
It is also significant that Chapa , as he admitted , found it necessary on some oc-
casions to elaborate and explain to the assemblage the meaning of certain words and
terms used by Price . This is readily understandable since Price literally read a
portion of Section 8 (d) of the Act to this group which, as is obvious, could hardly
be expected to be familiar therewith.
Turning to the evidence , the record discloses the following testimony by witnesses
who are still in Respondent's employ. According to Maria Morales, Price , or more
accurately Chapa, referring to previous strikes lost by the Union , said that a union
victory might result in a strike and that "a lot of use [sic] would loose [sic] our
jobs."
According to Gloria Rodriquez , Chapa commented critically concerning dues pay-
ments which produced no return to employees , announced that Respondent "could
not be forced to sign a contract" and said that the Union had no alternative but to
strike . I see nothing in the testimony of Rodriquez which goes beyond a protected
statement of opinion.
According to Saul Valenzuela, Chapa commented on the pros and cons of a yes
or no vote and urged them to vote no, stating that if they voted no, which would
be for the Company, "you have your jobs secure." Employee Burciaga then asked
what would happen if the Union won and Chapa replied that "win or loose [sic],
they would not sign any contract with the Union."
Dolores Blanquet testified that Chapa stated that whether the Union won or lost,
Respondent "would not be willing" to sign a contract. She then testified that he
said win or lose there was no law that could "force" Respondent to sign a contract.
Chapa then pointed out that if they struck they "would" lose their jobs because Re-
spondent "could put other workers on." • She'admitted they were told that Respond-
ent could "replace" personnel out on strike. I see nothing here which goes beyond
Respondent's rights under Section 8(d) of the Act or under the Mackay doctrine.
According to Guadalupe Torres, Chapa assured them that this Union had taken
other workers out on strikes which had been lost, that a union could not win a strike
in the State of Texas, and that if they struck, Respondent could replace them with
others. He also pointed out that under the law Respondent was not obligated to
sign a contract with the Union. This, too, I view as I did the testimony of the pre-
vious witness and I find that it was protected.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elena Castillo testified that Chapa said they would "loose" [sic] their , jobs if they
struck. She denied that anything was said about replacing strikers . When asked
if she recalled whether anything was said about being replaced , she replied in the
negative , adding that she recalled , only a statement that they might lose their jobs.
I find that in this instance the aspect of possible replacement was not stated.
According to Irma Carrillo, Chapa stated that Respondent had the right to "occupy"
jobs left vacant by strikers who could be told upon their return that the jobs were
already filled . I find that this comported with Respondent 's rights under the Mackay
doctrine. She further testified that Chapa stated that if the Union won the election,
Respondent "was not going to sign any contract with it." She later testified, how-
ever, that the statement was that Respondent was "not willing" to sign any other con-
tracts with the Union, that "nobody could force the Company to sign a contract,"
and that if Respondent "was not willing to sign" there would be no contract. Still
later, she testified that Chapa stated Respondent "was not going to sign any contract
with the Union" and that "nobody could make them sign." While some of these
versions go beyond protected expressions of opinion, others do not . Accordingly,
I base no adverse findings upon her contradictory testimony.
I find that Chapa, apparently due to lack of expertise in the field of labor relations,
made certain statements which reasonably tended to restrain and coerce these em-
ployees in the exercise of their rights guaranteed by Section 7 of the Act. In par-
ticular, I rely upon the absence of a script and the necessity on the part of Chapa to
interpolate or explain Price's remarks . I find that by the foregoing conduct consist-
ing of the statements that employees would or could lose their jobs if they struck
and that Respondent would not sign a contract with the Union even if,it won the
election, as testified by Morales, Valenzuela, and Castillo, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
The General Counsel also attacks the following conduct . Evangelina Mendez un-
controvertedly testified, and I find, that on May 1, the day before the election, Floor-
lady Sanchez asked her for whom she would vote in the election. Mendez asked if
the vote was secret and Sanchez replied that it was, but that "if you vote for the
Union you will have to stand the consequences." Mendez asked what would hap-
pen if she voted for Respondent and Sanchez replied that everything would remain as
it had been. I find that this amounted to a threat of loss of existing benefits if
Mendez voted in favor of the Union and that this was violative Of' Section 8(a)(1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with its operations set forth in section I, above , have a close , intimate, and sub-
stantial relation to trade , traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
. • V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall recom-
mend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of Consuelo Molnar, Maria Tornero, and Geraldo Ronquillo. I shall there-
fore recommend that Respondent offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to seniority or
other rights and privileges. See The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 NLRB 827.14 I shall further recommend that
Respondent make them whole for any loss of pay suffered by reason of its dis-
crimination against them. Said loss of pay, based upon earnings which each nor-
mally would have earned as wages from the date of discrimination to the date of
reinstatement, shall be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-Up
Bottling Company of -Miami, Inc., 344 U.S. 344. Interest thereon at the rate of 6
percent per annum shall be added, as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
The unfair labor practices committed by Respondent involve pretextual discharges.
The inference is warranted that Respondent maintains an attitude of opposition to
the purposes of the Act with respect to the protection of employee rights in general.
14 The record discloses that they have been reinstated. This language is inserted in the
event they have since been released or are not in their former or substantially equivalent
positions, or are not being credited with their overall seniority.
HORTEX MANUFACTURING COMPANY, INC. 1165
It will accordingly be recommended that Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Hortex Manufacturing Company, Inc., is an employer within the meaning of
Section 2 (2) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Con-
suelo Molnar, Maria Tornero, and Geraldo Ronquillo, thereby discouraging member-
ship in a labor organization, Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
4. By the foregoing conduct, by engaging in surveillance of a union meeting, by
announcing that employees who struck would lose their jobs, by stating that it would
not sign a contract with a victorious union, and by threatening an employee with the
loss of benefits for voting in favor of a union, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
5.' The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise engaged in unfair labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondent, Hortex Manufacturing Company, Inc., El Paso,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Clothing Workers of America,
AFL-CIO, or in any other labor organization of its employees, by discharging em-
ployees or by discriminating in any other manner in regard to hire or tenure of
employment, or any term or condition thereof, except to the extent authorized in
Section 8(a) (3) of the Act.
(b) Engaging in surveillance of union meetings, threatening employees with dis-
charge if they struck, announcing that it would never sign a contract with a victorious
union, threatening employees with reprisals for voting in favor of -a union, or in
any other manner interfering with, restraining, or coercing employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act.
2.: Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Consuelo Molnar, Maria Tornero, and Geraldo Ronquillo immediate
and full reinstatement, to the extent not already done, to their former or substantially
equivalent positions, without prejudice to seniority or other rights and privileges,
and make them whole for any loss of pay suffered by reason of the discrimination
against them in the manner provided above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount' of backpay due under the terms of this Recommended Order.
(c) Post at its plant at El Paso, Texas, copies of the attached notice marked
"Appendix." 15 Copies of said notice, to be furnished by the Regional Director for
11 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Twenty-eighth Region , shall, after being duly signed by Respondent , be posted
by it immediately upon receipt thereof , and be maintained for a period of 60 con-
secutive days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , or covered by any other material.
(d) Notify the Regional Director for the Twenty-eighth Region , in writing,
within 20 days from the date of receipt of this Decision, what steps it has taken to
comply herewith.ts
16In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Amalgamated Clothing Workers
of America, AFL-CIO, or any other labor organization of our employees, by
discharging employees or by discriminating in any manner in regard to hire or
tenure of employment or any term or condition thereof, except to the extent
permitted under Section 8(a) (3) of the Act.
WE WILL offer Consuelo Molnar, Maria Tornero, and Geraldo Ronquillo
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to seniority or other rights and privileges, and we will
make them whole for any loss of pay suffered by reason of our discrimination
against them.
WE WILL NOT threaten employees with reprisals for voting in favor of a
union, with discharge if they engage in a strike or threaten that we will never
sign a contract with a victorious union.
WE WILL NOT engage in surveillance of union meetings.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities, except,to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
HORTEX MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-----------------
-
--------------------------(Representative) (Title)
NOTE.-We will notify any above-named employee presently serving in the Armed
Forces of the United States of the right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the -date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office, 1015 Tijeras Street,
NW., Albuquerque, New Mexico, Telephone No. 247-0311, Extension 2520, if
they have any questions concerning this notice or compliance with its provisions.