Tex Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 20, 1970

180 N.L.R.B. 808 (N.L.R.B. 1970)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tex Manufacturing Company and El Paso District
Joint Board Amalgamated Clothing Workers of
America, AFL-CIO. Case 28-CA-1829
January 20, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On August 26, 1969, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that Respondent 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 Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint, and recommended the dismissal of these
allegations . Thereafter, exceptions and
cross-exceptions to the Trial Examiner's Decision
were filed by Respondent and the General Counsel,
respectively, together with briefs in support thereof.'
Respondent also filed a motion to reopen the record
and a brief in answer to the General Counsel's
cross-exceptions, while the General Counsel has filed
a motion to strike certain portions of Respondent's
brief in answer to the General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board had delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions, cross-exceptions,
motions= and briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner with the following clarification.
We agree with the Trial Examiner's finding that
Respondent's stationing of supervisors at the plant
exit gate interfered with the distribution of union
literature and constituted surveillance of union
activities within the meaning of Section 8(a)(1) of
the Act. Our finding is based upon evidence that
Respondent only began stationing supervisors at the
plant gate after the Union commenced handbilling
activities at this location, and the absence of any
plausible reason for positioning supervisors at the
plant gate. In such circumstances, we can only infer
that Respondent's action was for the purpose of
'The matters raised in Respondent ' s motion to reopen are discussed in
the body of our Decision
'The General Counsel's motion to strike certain portions of
Respondent 's brief in answer to the General Counsel's cross -exceptions is
hereby denied.
discouraging and deterring employees from engaging
in handbilling activities, a right guaranteed them by
Section 7 of the Act.
We also agree with the Trial Examiner's finding
that Respondent discharged employee Alicia
Moreno in violation of Section 8(a)(3) and (1) of the
Act. Moreno, an employee of 9 years standing, was
a leading activist in the Union's organizational
campaign. Moreno was a member of the Union's
organizing committee, participated in numerous
handbilling activities' and solicited union
membership from approximately 50 employees.
Respondent was fully aware of Moreno's activities
on behalf of the Union and, as detailed in the Trial
Examiner's Decision, Respondent exhibited animus
toward the Union and a change of attitude toward
Moreno because of her activities. It was in this
context that the Trial Examiner examined
Respondent's contention that a lack of work made a
reduction in force necessary and Moreno's poor
production record caused her to be among those
selected for termination. In passing upon this
contention, the Trial Examiner agreed that
Respondent experienced a severe drop in sales from
July 1968 to December of that year. However, he
found no justification for Respondent's claim that
Moreno was the poorest producer on operation no.
129, and in view of Respondent's policy of delaying
reductions in force until the end of the year, he
could find no satisfactory explanation why Moreno
was terminated on November 20, 1968, and replaced
by an inexperienced employee.
Respondent contends that the Trial Examiner's
finding of unlawful discharge is based in large part
upon the subsidiary finding that Moreno was
replaced by an inexperienced employee and that this
latter finding is totally without record support.
Specifically, Respondent challenges the Trial
Examiner's determinations as to the composition of
the work force on operation no. 129 both before and
after Moreno's discharge, and in particular his
finding that employee Alicia Gamboa was put on
operation no. 129 as a replacement for Alicia
Moreno. In support of its position, Respondent filed
with the Board its Motion to Reopen Record and
attached thereto, the production records of Alicia
Gamboa covering the period from November 1968
to June 1969,4 together with an affidavit from Abie
Mowad,° Respondent's production manager, both of
which tend to establish that Gamboa did not
perform operation no. 129 after Moreno's discharge,
although she did perform work of a similar nature.
However, even assuming that the Trial Examiner
was in error in concluding that Gamboa was a
replacement for Moreno, it would not affect the
'The General Counsel's motion to correct the transcript to reflect that
Moreno's handbilling activities commenced in June not January 1968 is
unopposed and is hereby granted
?he production records of Alicia Gamboa consist of 8 pages and are
received into evidence as Resp Exhs 12(a)-(h).
'The affidavit of Abie Mowad is received into evidence as Resp. Exh. 13
180 NLRB No. 128
TEX MANUFACTURING COMPANY
result reached here because in our judgment the
overwhelming weight of the evidence establishes that
Moreno would not have been discharged on
November 20, bul for her union activities.
As previously noted, Respondent experienced a
severe drop in sales in the summer and fall of 1968,
and according to production manager Mowad's
testimony, he informed all his supervisors that
reduction in personnel would have to be made by
the first of the year. Mowad explained that he set
the time limit at the first of the year because
traditionally Respondent has experienced a certain
amount of attrition resulting from the failure of
employees to return to work after the December
vacation period. Mowad further testified that
supervisors are reluctant to let people go before this
time because they do not know whether they are
going to lose personnel right after the first of the
year. Pursuant to Mowad's directive, supervisor
Amelia Franco was instructed to reduce her line of
25 operators by 5. Franco testified that the selection
of those to be terminated was left to her discretion.
On November 20, Franco had four employees
performing the front pocket facing operation,' and
on that date, she notified employees Moreno and
Delgado that they were being let go. At the time,
Delgado was pregnant and due to go on maternity
leave in the near future. Franco testified that
Moreno was selected because she had the poorest
production among those performing the front pocket
facing operation. The day following Moreno's
termination, employee Marie de luz Rendon
returned from a leave of absence to her position as a
front pocket facing operator.
There is no satisfactory explanation in the record
as to why Franco chose to terminate Moreno on
November 20 in the middle of a pay period,' thereby
departing from custom and acting at a time when
the results of the usual end of the year attrition
could not be known or evaluated. Likewise, Franco's
contention that Moreno was selected because she
ORDER
809
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Tex Manufacturing
Company, El Paso, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
Unfortunately, the production records do not indicate the amount of time
any operator may have spent in non quota type work However, Franco
testified that Martinez worked steadily on front pocket facings after
Moreno's discharge So if Respondent is correct , we would have to view
Martinez and Rendon as replacements for Moreno and Delgado.
'in light of our determinations , herein, we hereby deny Respondent's
motion to remand this proceeding to the Trial Examiner for the purpose of
taking further evidence.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard in El Paso, Texas on May
27, 28, and 29, 1969, on a complaint of the General
Counsel and answer of Tex Manufacturing Company,
herein called Respondent. The complaint was issued on
April I I, 1969, on charges filed February 6 and 11, 1969.
The complaint alleges that Respondent discharged Alicia
Moreno on November 20, 1968, and engaged in other acts
of interference, restraint, and coercion which were unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act, herein called the
Act.
Briefs have been filed by the General Counsel and
Respondent and have been carefully considered. Upon the
entire record and my observation of the witnesses, I
hereby make the following.
FINDINGS OF FACT
was the poorest producer on front pocket facing is I. THE BUSINESS OF THE RESPONDENT
not supported by the record. The production records
in evidence establish that Moreno was a better
producer than either Delgado or Martinez. Yet
Martinez was retained over Moreno and continued
to work on front pocket facings.8 Finally, the
urgency for reducing personnel on Franco' s line is
drawn into serious question by her testimony that
although there had been no increase in the work
load, Franco had 27 operators on her line at the
time of the hearing in May 1969 as opposed to the
25 operators on her line at the time of Moreno's
discharge. In such circumstances, we are constrained
to conclude that Respondent discharged Moreno
because of her union activities, thereby violating
Section 8(a)(3) and (1) of the Act.'
Tex Manufacturing Company is a Texas corporation
with its principal office and place of business in El Paso,
Texas, where it is engaged in a business of manufacturing
and distributing men's dress and casual slacks. During the
last calendar year, Respondent sold and shipped goods
and materials valued in excess of $50,000 from its El
Paso, Texas place of business to customers outside the
state of Texas; during the same period of time,
Respondent purchased and received at its El Paso place of
business, goods and materials valued in excess of $50,000,
which were transported from places outside the State of
Texas.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
'Moreno, Delgado, Santos, and Martinez.
'Moreno's pay period runs from Sunday to Saturday and November 20,
The El Paso District Joint Board, Amalgamated
1968, fell on a Wednesday . Clothing Workers of America, AFL-CIO, herein called
'Respondent contends that Martinez only worked part-time on front the Union, is a labor organization within the meaning of
pocket facings and her production records should be viewed in this light Section 2(5) of the Act.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Did Respondent discharge Alicia Moreno on
November 20, 1968 , because of her union activities or was
she selected for discharge in an economic reduction
because of low production.
2. Did Respondent engage in surveillance of union
activities by the presence of supervisors in the restrooms
during rest periods and in the parking lot after working
hours.
3. Did Respondent give any assistance and support to
employees opposed to the Union that would constitute an
interference within the meaning of Section 8(a)(1) of the
Act.
B. Union Organizational Activities
Respondent has approximately 500 to 600 employees
and approximately 500 are under the supervision of Abie
Mowad, Respondent's production manager. In March
1968, the Union commenced an organizational campaign
among Respondent's employees. Letters were sent to
employees and handbills were distributed to them at the
entrances and exits of Respondent's premises, and
meetings were held. On May 13, 1968, the Union sent the
following telegram to Respondent:
THIS TELEGRAM WILL PLACE YOU ON FORMAL NOTICE
THAT THE EMPLOYEES WHOSE NAMES ARE LISTED BELOW
AMONG OTHERS, ARE MEMBERS OF THE AMALGAMATED
CLOTHING [SIC] WORKERS OF AMERICA EL PASO DISTRICT
JOINT BOARD AND MEMBERS OF OUR ORGANIZING
COMMITTEE, WE WILL SUBMIT ADDITIONAL LIST OF
NAMES FROM TIME TO TIME
ALICIA MORENO
MERCEDES CARILLO
MARIA MOLINA
VICTOR MANUEL CARILLO
BALBINA C DE LUNA
Commencing on March 22, 1968, the Union distributed
handbills approximately once each week through June of
that year; one distribution was made in July, one in
September and one in October; three distributions were
made in November; two in December, and one in May
1969. The employees named in the telegram, along with
union representatives, engaged in the handbilling.
Prior to receipt of the telegram, Mowad was aware of
the organizational campaign, as union letters had been
received by one of his supervisors and some employees
had informed him of their receipt of these letters.
Shortly prior to the receipt of the Union's telegram of
May 13, it was reported to Mowad that a union circular
had been posted in one of the plant restrooms and that
employee Balbina de Luna might know something about
it. He called her into his office and questioned her about
the matter. She informed him that she knew nothing
about it, but that she had received some papers from the
Union at her home, Mowad asked her why she had not
told him about it and she replied that she did not think it
was important. He told her that people were not grateful
because he gave jobs to their sons. He told her to go back
on the job and everything that she saw and heard to come
back and tell him. She asked if she had to do it and he
told her that she did.'
When Mowad received the telegram from the Union
one afternoon a few days later, he noticed that de Luna's
name was on it. The next morning he walked up to de
Luna and told her, "Balbina, thank you very much for
what you did," and he added, You tell your daughter
Rosa that I do not have a job for her."
In May 1968, General Supervisor Josefina Gomez
asked de Luna why she had entered the Union. De Luna
asked Gomez if she did not believe it was good and
Gomez replied in the negative and stated that Mowad was
very mad; that de Luna was one of his favorites, that he
had been very good to her and stood up for all the factory
employees and had given them many benefits such as
piped- in music , and they had repaid him with fists Gomez
stated that she did not believe that the Union was going to
help; that the Union was not going to enter because
Mowad would sell or close the plant.
C. Surveillance at the Plant
The General Counsel contends that with the advent of
union organizational activities, Respondent started or
intensified a practice of stationing supervisors in
restrooms during break periods and stationing supervisors
at the exit from the parking lot at quitting time, and that
this was done for the purpose of observing and interfering
with union solicitation. Respondent contends that it has
always had a practice of stationing supervisors in the
restrooms during break periods; that the purpose of this is
to assure that the employees will not linger in the
restrooms when the warning bell is sounded; that
supervisors have always been stationed in the parking lot
and at its exit for purposes of policing and traffic control.
There is a conflict in the testimony as to whether the
practice of stationing supervisors in the restrooms and at
the exit from the parking lot existed prior to the union
organizational activities.
It is reasonable to assume that with a plant of 500 to
600 employees some supervision during break periods
would be warranted on plant premises; and with a parking
lot of approximately 4 acres and 250 to 300 automobiles,
it is reasonable to assume that some policing and traffic
control would be warranted.
But, prior to distribution of any union literature, Union
Representative Bertha Madrid visited the area of
Respondent 's plant on four occasions and made a survey
to see where the employees made their exits and where
would be a good place for handbilling. She visited the
premises at 4 p.m.; she got out of her car and walked on
the sidewalk near the exit from the parking lot She did
not observe Foremen Joaquin Escobar, Juan Centeno or
Luis Lara near this exit when she was making these
surveys. She participated in all of the distribution of union
literature, and on these occasions she did observe two or
more of these supervisors standing next to the exit from
the parking lot.
I was particularly impressed with the testimony of
employee Candelaria Macias, who has worked for
Respondent since 1953; she did not sign a card for the
'Mowad testified that de Luna volunteered to report what was going on,
but in view of the fact that she was on the union organizing committee, it
is not likely that she would do so, and I credit her version on this point.
All of this occurred outside the limitation period prescribed by Section
10(b) of the Act, the original charge having been filed on February 6, 1969
No unfair labor practice is alleged to have occurred prior to August 6,
1968, but these facts were presented and are considered to the extent that
they bear on the issue of motivation for the discharge of Alicia Moreno
and on other events occurring within the limitation period.
TEX MANUFACTURING COMPANY
Union and has attended no union meetings. She testified
that in the summer of 1968 she started observing Foremen
Lara and Escobar standing next to the exit from the
parking lot when she left work and that this is the first
time that she has seen them there; that she has seen them
there regularly since then
Production Manager Mowad testified that Respondent
employs a Burns guard. It is his job to circulate through
the parking lot and around the outside of the plant. At
quitting time he stations himself at the entrance to the
plant to check packages which are being taken out.
Apparently some employees started leaving through one of
the back doors. Foreman Escobar was instructed to keep
his eye on the sewing room doors. It is also his duty to
police the area of the parking lot in the vicinity of the exit
gate while the guard is at the front entrance to the plant
and the employees are leaving work. Foreman Luis Lara
was assigned the central area of the parking lot near the
corner of the plant building. He was given a jumper cable
and is available to help employees who might be unable to
get their automobiles started. Mowad makes no mention
of any foreman being stationed at the exit gate for any
purpose, although he suspects sometimes the supervisors
get together in the parking lot and just talk. Juan Centeno
stations himself near a corner of the plant to make sure
that employees did not use emergency doors as they leave
work. He testified that he has not gone near the exit gate
but several employees testified that they have seen him at
this gate, although not as regularly as Lara and Escobar.
It is plausible that after employees left the plant he has
walked over to where other foremen were located and
smoked or talked with them.
At 12:30 p.m. of each day, Foreman Harvey Emmett is
assigned the task of seeing that employees who get off
work at that time leave the parking lot and do not linger
there. One shift of pressers gets off work at that time;
approximately seven or eight cars leave the parking lot
then.
I find that when the Union began distributing literature
at the exit gate at 4 p.m., Foremen Escobar and Lara,
and occasionally Foreman Centeno did commence
stationing themselves adjacent to this gate as the
employees left work, and that this activity has continued
since that time. I find that this activity interfered with the
distribution of union literature and constituted surveillance
of union activities within the meaning of Section 8(a)(1) of
the Act, although no remarks of a coercive or restraining
nature have been made by any of the supervisors, and
although it was not limited solely to days of handbilling.2
Although the presence of supervisors at the exit gate
commenced prior to the limitation period, it continued on
a daily basis and occurred when union literature was
distributed following August 6, 1968.
The General Counsel contends that supervisors Josefina
Gomez and Amelia Franco stationed themselves in the
restrooms during the 9 a.m. and the 2:30 p.m. breaks and
thereby engaged in surveillance or gave employees the
impression of surveillance of their union activities. I do
not believe that the General Counsel' s evidence is
sufficient to support this position. There is no evidence by
any witness other than Franco herself as to her presence
in the restrooms during the break periods. She does not
smoke and does not have occasion to use the restroom for
this reason. She testified that shortly before the warning
bell sounds she goes to restroom number two to see that
all employees leave, so that they will be at their machines
'Wright & McGill Co., 102 NLRB 1035, 31 LRRM 1394
811
by the time the last bell sounds Gomez has the same duty
at restroom number one, however, Gomez does smoke
and uses the restroom for this purpose Employees de
Luna and Moreno and these are the only two witnesses
who testified on this point -- testified that they did not
observe Gomez in the restroom during break periods prior
to the advent of the Union's organizing campaign. De
Luna testified that prior to May 1968, she did not
frequent restroom number one during the break period
and did not notice whether Gomez was or was not in this
restroom prior to the matter being called to her attention
by Moreno, then she noticed Gomez smoking in restroom
number one during the break periods.
It is logical to assume that Gomez would use the
restroom for smoking since she had a duty that required
her presence there near the end of the rest period. I do not
credit Moreno's testimony that Gomez was not
present in restroom number one prior to the advent of the
Union. I find that there has been no violation of the Act
by the presence of supervisors Gomez and Franco in
restrooms during rest periods.
D. Assistance and Support to Anti-Union Employees
Respondent received letters from some of its employees
expressing their opposition to the Union. One, "To my
co-workers" was posted by Respondent in May 1968 on a
window at Mowad's office with the following caption-
This is an open letter expressing the sincere and
thoughtful opinion of one of our employees The letter
was unsigned, but we believe it to be worthy of your
notice.
Also posted next to it was a list of questions asked by
employees with answers These were posted in May 1968,
prior to the limitation period, but have remained posted
since that time.
It is not contended by the General Counsel that there is
anything coercive in the content of the posted matter, but
it is contended that by the act of posting a letter from an
anti-union employee Respondent is extending recognition
and support to them.
An employer may express his position on the matter of
unionism and by the same token he may indicate his
approval of views of employees that coincide with his. The
Act is violated if he rewards or promises a reward for
antiunionism or if he discriminates against prounion
employees. In the instant case there is no evidence of any
no-solicitation rule; neither prounion nor antiunion
employees have requested any posting or like privileges. I
find that by the posting of antiunion sentiments of
employees, there has been no illegal support or rewarding
of antiunion employees within the meaning of Section
8(a)(1) of the Act.
On some date in the latter part of November, 1968 but
prior to November 25, (the date of the Union's responding
circular) employee Anna Granados complained to Balbina
de Luna, a member of the Union's organizing committee,
about the fact that her name appeared on a circular or
paper as a supporter of the Union, which paper was in the
office of Production Manager Mowad. Granados took de
Luna, along with union committee member Mercedes
Carillo, to the office of Mowad to see the paper. Mowad
handed the paper to Granados and Granados handed it to
de Luna. De Luna read it and told Granados that she was
not to worry about it; that someone had made the paper
to create a conflict between them; that the Union had not
sent it and that Granados should compare it with circulars
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union. De Luna asked Mowad to loan the paper to
her and she would return it to him the next day, but he
refused to do so. De Luna testified that the paper bore the
initials of the Union but was not signed , and that it
purported to notify the Company that certain named
employees were protected by the Union.
Mowad testified that several of the employees whose
names appeared on the paper were demanding that some
kind of action be taken on the matter. A supervisor had
reported to him that Granados was planning on doing
something to people named in the Union 's telegram; he
had her brought into his office and he warned her that if
there was any fighting or problem of that nature, both
parties would be fired, and that this would be the case
even though the fighting took place outside the plant.
The question of the spuriousness of the circular was
certainly a matter that the involved employees and
Respondent as well had an interest in taking up with the
Union. The Union had submitted the names of five
employees as members of its organizing committee, and it
was reasonable and natural that the circular matter would
be discussed with them as representatives of the Union at
the plant . The discussion was solely as to the authenticity
of the document. De Luna denied that it was a document
of the Union , and apparently that concluded the matter,
except for the Union's circular of November 25th
affirming its denial of authorship and asking for its
production. I find that Respondent committed no unfair
labor practice in this matter.
E. The Discharge of Alicia Moreno
Moreno started to work for Respondent in September
1959. In 1961 she cut her working time to approximately
6 months of each year and she continued this pattern until
1965. This was because her eligibility for a pension
depended upon the amount of her earnings. Each year
during this period she returned to Respondent following
her absence and was given employment. In 1965, she
turned down the pension and began working throughout
the year , except for time off for an operation , until her
discharge on November 20, 1968.
Moreno joined the Union on April 17, 1968, and was
one of five employees on its organizing committee. She
actively supported the Union and asked approximately 50
employees to join the Union and attended about 20 union
meetings . She passed out union literature at Respondent's
gate on about 10 occasions . She observed foremen
Escobar, Centeno , and Lara at the exit gate , and on one
occasion Escobar asked her for one of the union circulars.
In May 1968, shortly after the Union ' s telegram of
May 13 , and outside the limitation period , General
Supervisor Gomez informed Moreno of her disapproval of
her support of the Union . She asked Moreno why she had
done this thing ; that Moreno was one of the persons least
indicated and that Mowad had always gone along with
her. Gomez told Moreno that Mowad had called a
meeting and told them that inside the plant there were
people who belonged to the Union . Gomez told him that
there were none among her operators and was surprised to
find that this was not true when Mowad showed her the
Union telegram.
In November 1968, Inspection Supervisor Elsa
Villalobos told Moreno one day that she had the urge to
put her over her knee and to spank her . Among other
things she asked Moreno what benefit would the Union
bring to them . Moreno replied that only time would tell.
Villalobos stated that she knew that old operators, with or
without a Union, had been fired and that she would never
join the Union because she thought a lot of Mowad.
Moreno replied that she was not against him.
In the late summer and early fall of 1968, there was a
sharp drop in Respondent's sales and it was expedient that
the size of Respondent's work force be reduced.
Production Manager Mowad informed Moreno's
supervisor, Amelia Franco, that she should reduce her
staff of 25 persons by 5 Mowad gave his supervisors a
time limit to the first of the year by which the reductions
in personnel were to take place. He testified that the limit
was set at the first of the year because traditionally
Respondent has employees who do not return from
vacations taken during the last 2 or 3 weeks of the year.
He stated that supervisors are reluctant to let people go
before this time because they do not know whether they
are going to lose personnel right after the first of the year.
In August and September, two students, Dora
Santamaria, a cutter, and Isabella Santamaria, who sewed
and set patches, left Franco's work line to return to
school. In October 1968, Refugio Cobos, who worked on
back pockets, was terminated. Franco testified that she
terminated Cobos because she had the lowest production
among the workers on back pockets. On November 20,
1968, Franco released Raquel Delgado and Alicia
Moreno, both of whom worked on front pocket facings,
operation No. 129. Delgado was pregnant and was due to
go on maternity leave in the near future Franco testified
that she selected Moreno because she had the lowest
production in operation No. 129. At or about 4 p.m., on
Wednesday November 20, 1968, Franco told Moreno that
she had orders that this was the last day of work for
Moreno; that Moreno had the right to get paid for her
vacation, and in January she could appear there at the
plant to see if she would be given employment again; that
she wanted to continue to be a friend to Moreno and was
giving Moreno her telephone number so that Moreno
could call her if someday she had occasion to make use of
her friendship.
The issue to be resolved is whether or not Respondent's
reduced sales in the fall of 1968 would have brought about
the discharge of Moreno in November 1968 if she had not
been an active union supporter.
On the day following the termination of Moreno,
employee Maria de la Luz Rendon returned from a leave
of absence to her position on operation No. 129 and
Supervisor Franco also put an employee, Alicia Gamboa,
on operation No. 129. Thus, at the time of Moreno's
discharge, Respondent had three employees on operation
No. 129 Moreno , Raquel Delgado , and Patricia
Martinez; Rendon was on leave of absence. Following
Moreno's discharge , Respondent had three employees on
129 Rendon, Martinez, and Gamboa. Thus, both
Moreno and Delgado were replaced, with one of the
replacements, Gamboa, being inexperienced on operation
No. 129.
Respondent complains of the production of Moreno
and points out that her production is less than that of
Rendon . The production quota for operation No. 129 is
100 dozen slacks daily. Mowad testified that operation
No. 129 was clarified in February 1968. Production
records of Rendon since the week ending March 8, 1968
show that she made the production quota only once
through the week ending August 17, 1968, which was her
last week of work until she returned following the
discharge of Moreno. Her production record, however,
was consistently higher than that of Moreno; but
Moreno's production record during the weeks she,
TEX MANUFACTURING COMPANY
Martinez and Delgado were on operation No. 129 was,
with few exceptions, consistently higher than that of either
Martinez or Delgado. Although Respondent contends that
a comparison should be made only between Rendon and
Moreno because of certain aids on their sewing machines,
nevertheless all operators on operation No. 129 had a
quota of 100 dozen pairs of slacks daily. Respondent's
contention that Moreno was picked for termination
because she was the poorest producer on operation No.
129 is not substantiated by the production records.
Mowad testified that there was no complaint about the
quality of Moreno's work; as a matter of fact she was
frequently used to make samples.
Moreno testified that after the Union's telegram on
May 13, 1968, most of the supervisors stopped speaking
to her. She would greet Mowad at the door but he never
answered her. General Supervisor Gomez testified on this
point that, "We don't talk to each other, that's all." She
said that Moreno did not give her a good morning and
that she did not give Moreno a good morning either.
The testimony of Amelia Franco contains two
significant errors which reflect on her ability to recollect
events or occurrences accurately. She testified definitely
and repeatedly that Delgado left about 3 weeks before
Moreno, whereas in fact, they left on the same day. She
was also very emphatic that Moreno had worked under
her supervision for one year and 9 months, whereas in
fact, Moreno had been under her supervision for less than
one year. After recesses, she later acknowledged this
testimony as being erroneous and that she had the
departure date of Cobos confused with that of Delgado.
Respondent's records show a very severe drop in sales
from July 1968, to December of that year. Mowad stated
that on one prior occasion , it was necessary to reduce
employees because of a reduction in sales. Respondent's
sales records for 1964 through 1968 show that annually
there is a sales reduction following the peak summer
months, although the one in 1968 was the most severe.
Since Mowad had given Franco until the end of the
year to accomplish the reductions, and as he indicated
that attrition usually accounts for some reduction
following vacations in December, it is not satisfactorily
explained why Respondent terminated Moreno, an
employee who had been with Respondent for 9 years and
repeatedly rehired, on November 20 and replaced her with
an inexperienced employee rather than await the outcome
of the usual end of the year attrition . Respondent's
animus toward the Union and change of attitude toward
Moreno is clearly established . I find that Respondent
discharged Alicia Moreno on November 20, 1968, because
of her union activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
813
CONCLUSIONS OF LAW
1. Tex Manufacturing Company is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. El Paso District Joint Board , Amalgamated Clothing
Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By engaging in surveillance of employees' union
activities Respondent has interfered with , restrained, and
coerced employees , and has thereby engaged in an unfair
labor practice within the meaning of Section 8(a)(1) of the
Act.
4. By discharging Alicia Moreno on November 20,
1968, because of her union activities , Respondent has
discriminated against employees to discourage
membership in the Union , and has thereby engaged in an
unfair labor practice within the meaning of Section 8(a)(3)
and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has committed no unfair labor practice
as alleged in paragraphs 8(a), (c), (d ), and (e) of the
complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action which
is necessary to effectuate the purposes of the Act.
I shall recommend that Respondent offer to Alicia
Moreno immediate and full reinstatement to her former
or substantially equivalent position without prejudice to
her seniority or other rights and privileges, and make her
whole for any loss of pay that she may have suffered by
reason of the discrimination against her, by paying her a
sum of money equal to that which she normally would
have earned as wages, from the date of the discrimination
to the date of reinstatement, less net earnings during such
period, in accordance with the Board's formula set forth
in F. W. Woolworth Company, 90 NLRB 289, together
with interest thereon at the rate of 6 percent per annum as
prescribed in Isis Plumbing & Heating Co., 138 NLRB
716. The "Armed Forces" provision will not be included
in the order recommended, as it would not be appropriate
in the instant case. Since many of Respondent's employees
speak only Spanish, it will be recommended that the
notice to employees attached hereto be posted in both
Spanish and English.
On the basis of the foregoing findings of fact and
conclusions of law, and the entire record herein, I
recommend that, pursuant to Section 10(c) of the Act, the
Board issue the following.
. RECOMMENDED ORDER
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of
Respondent described in section 1, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
Tex Manufacturing Company, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the El Paso District
Joint Board , Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization , by discharging
employees because of their union activities or in any other
manner discriminating against employees in regard to hire
or tenure of employment or any terms or conditions of
employment.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Engaging in surveillance of union activities of
employees.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following action:
(a) Offer to Alicia Moreno immediate and full
reinstatment to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of pay she
may have suffered by reason of the discrimination against
her, in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post in Spanish and in English and in conspicuous
places at its plant including all places where notices to
employees are customarily posted, copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region 28 of
the National Labor Relations Board, after being duly
signed by an authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter.
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 Region 28, in
writing , within 20 days from the date of receipt of a copy
of this Decision , what steps Respondent has taken to
comply herewith.'
It is recommended that paragraphs 8(a), (c), (d), and
(e) of the complaint be dismissed.
'In the event that this 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 "
'In the event that this Order be adopted by the Board , this provision
shall be modified to read : "Notify the 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 our
employees that:
WE WILL NOT discourage membership in the El Paso
District Joint Board , Amalgamated Clothing Workers
of America , AFL-CIO, or any other labor
organization, by discharging employees because of their
union activities , or in any other manner discriminating
against employees in regard to hire or tenure of
employment or any terms or conditions of employment.
WE WILL NOT engage in surveillance of union
activities of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their rights to self-organization , to form , join, or
assist labor organizations , to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL offer Alicia Moreno immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other
rights and privileges, and make her whole for any loss
of pay she may have suffered by reason of the
discrimination against her.
All of our employees are free to become or to remain
or refrain from becoming or remaining members of the
above-named Union or any other labor organization.
Dated By
TEX MANUFACTURING
COMPANY
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Resident Office, The Mart
Building , 206 San Francisco Street, Room 400, El Paso,
Texas 79901, Telephone 533-9351.