Union Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 10, 1945

63 N.L.R.B. 254 (N.L.R.B. 1945)

In the Matter Of MORRIS HARRIS AND ANNA HARRIS, COPARTNERS, DOING
BUSINESS AS UNION MANUFACTURING COMPANY and AMALGAMATED
CLOTHING WORKERS OF AMERICA
Case No. 16-C-1103.-Decided August 10, 1945
DECISION
AND
ORDER
On March 10, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices,
and recommending that they cease aid desist therefrom and take
certain affirmative action as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a supporting brief. None of the parties
requested oral argument before the Board at Washington, D. C., and
none was held.
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 Inter-
mediate Report, the exceptions and brief filed by the respondents, and
the entire record in the case and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the modifica-
tions noted below.
We agree with the Trial Examiner and we find that by the remarks
of Superintendent Cohen to the employees, during the course of his
speech on August 5, 1943,1 by the conduct, of Forelady Britton and
her statements to Holguin on the day before the election and by the
statements of Superintendent Cohen to Holguin on the same day, by
the conduct of Superintendent Roth and his statements to Chavez in
March 1944 in connection with the solicitation incident, by the pro-
mulgation of the rule against solicitation insofar as it prohibited solici-
tation of union membership at the respondents' plant on the employees'
non-working time,2 and by the totality of such conduct, the respondents
i Although we do not accept the Trial Examiner 's findings that Chavez ' testimony with
reference to the speech was corroborated by Holguin , we nevertheless find; as did the
Trial Examiner , that when Cohen addressed the respondents ' employees on August 5,
1943, he made the statements attributed to him by Chavez.
2 In defense of their rule against solicitation , the respondents showed that production
had fallen off and discipline in the plant was low. There is no showing , however, that
63 N. L . R. B., No. 39.
254
a
UNION MANUFACTURING COMPANY 255
have interfered with, restrained, and coerced their employees in the
exercise of their rights guaranteed in the Act.
Furthermore, we are convinced and find that Francisca Chavez was
discharged and refused reinstatement by the respondents because of
her union membership and activities, and therefore find, as. did the
Trial Examiner, that the respondents have discriminated against
Chavez in regard to the hire and tenure of her employment and have
thereby discouraged membership in the Union and interfered with,
restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The remedy
Having found that the respondents have violated Sections 8 (1) and
8 (3) of the Act, we must order the respondents, pursuant to the man-
date of Section 10 (c), to cease and desist therefrom. We also predi-
cate our cease and desist order upon the following findings : The re-
spondents' whole course of conduct discloses a purpose to defeat self-
organization and its objects among their employees. As we have found
above, since August 1943, the respondents have interfered with, re-
strained, and coerced their employees by various acts and statements.
The culmination of their illegal activities, the discrimination against
Chavez, "goes to the very heart of the Act." 3 Because of the respond-
ents' unlawful conduct and their underlying purpose, we are convinced
that the unfair labor practices found are persuasively related to the
other unfair labor practices proscribed and that danger of their com-
mission in the future is to be anticipated from the respondents' con-
duct in the past.' The preventive purpose of the Act will be thwarted
unless our order is coextensive with the threat. In order, therefore,
to make more effective the interdependent guarantees of Section 7, to
prevent a recurrence of unfair labor practices, and thereby minimize
industrial strife which burdens and obstructs commerce and thus
effectuate the policies of the Act, we shall order the respondents to
cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of the Act. As recommended in the Intermediate
solicitation of any kind was responsible for lower production or the decline in discipline.
From the foregoing and the entire record, we find that the respondents were not war-
ranted in extending their no-solicitation rule to the employees' non-working time on com-
pany property, and agree with the Trial Examiner that, to this extent, the rule was
violative of the Act. See Republic Aviation Corp. v. N. L. R. B., 323 U. S 688, enf'g 51
N L R. B. 1186; Matter of Scullin Steel Company, 49 N. L. R. B. 405, 409-12.
8 N. L. R. B v. Entwistle Manufacturing Company, 120 F (2d) 532, 536 (C C A. 4) ;
see also, N. L. R. B, v. Automotive Maintenance Machinery Company, 116 F. (2d) 350,
353 (C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed:
"No more effective form of intimidation nor one more violative of the N. L. R. Act can
be conceived than discharge of an employee because he joined a union. . . .
' See N L R. B. v. Express Publishing Company, 312 U. S. 426.
C
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report, we shall also order the respondents to take certain affirmative
action designed to effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Morris Harris and Anna
Harris, copartners , doing business as Union Manufacturing Company,
El Paso, Texas, and their agents , successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America , or in any other labor organization of their employees, by
discharging or refusing to reinstate any of their employees , or by dis-
criminating in any other manner in regard to their hire or tenure of
employment , or any term or condition of their employment;
(b) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist Amalgamated Clothing Workers
of America , or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities , for the purpose of collective bargaining , or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Francisca Chavez immediate and full reinstatement to her
former or a substantially equivalent position , without prejudice to
her seniority and other rights and privileges ;
(b) Make Francisca Chavez whole for any loss of pay she may have
suffered by reason of the respondents ' discrimination against her, by
payment to her of a sum of money equal to the amount which she
normally would have earned as wages during the period from July 17,
1944, the date of the respondents ' discrimination against her, to De-
cember 9 , 1944, less her net earnings during such period;
(c) Rescind immediately the rule against solicitation insofar as it
prohibits union activity and solicitation on company property during
the employees ' non-working time;
(d) Post at their plant at El Paso, Texas, copies of the notice at-
tached hereto, marked "Appendix A," and a Spanish translation
thereof. Copies of said notice to be furnished by the Regional Director
of the Sixteenth Region, shall , after being duly signed by the re-
spondents ' representative, be posted by the respondents immediately
upon receipt thereof and maintained by them for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where notices
UNION MANUFACTURING COMPANY 257
to employees are customarily posted. Reasonable steps shall be taken
by the respondents to insure that said notices are not altered, defaced,
or covered with any other material;
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Amalgamated Cloth-
ing Workers of America or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Francisca Chavez
Rule number 12, of "Rules & Regulations for the Union Manu-
facturing Company" dated January 29, 1944, insofar as it pro-
hibits union activity and solicitation on Company property during
the employees' non-working time is hereby rescinded.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of.member-
ship in or activity on behalf of any such labor organization.
UNION MANUFACTURING COMPANY,
Employer.
By ---------------------- ----------------
(Representative ) (Title)
Dated -------------------
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selectiye Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Earl Saunders, for the Board.
Messrs W. H. Fryer and Coyne Milstead, of El Paso, Tex, for the respondents.
Mr. Charles Dsspensa, of New York, N Y., and Mr. Ceferino Anchondo, of El
Paso, Tex., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on January 5, 1945, by Amalgamated
Clothing Workers of America, herein called the Union,. the National Labor
Relations Board , herein called the Board, by its Regional Director for the Six-
teenth Region (Fort Worth, Texas), issued its complaint on January 5, 1945,
against Morris Harris and Anna Harris, copartners, doing business as Union
Manufacturing Company, of El Paso, Texas, herein called the respondents, alleg-
ing that the respondents had engaged and were engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing thereon, were
duly served upon the respondents and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondents: (1) on or about July 17, 1944, discharged, and thereafter
refused and continue to refuse to reinstate, Francisca Chavez, for the reason
that she joined or assisted the Union or engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, thereby
discriminating in regard to the hire or tenure or terms or conditions of employ-
ment of said Francisca Chavez, and thereby discouraging membership in the
Union; and (2) by the foregoing conduct, and from on or about August 5, 1943,
by vilifying, disparaging and expressing disapproval of the Union, interrogating
their employees concerning their union affiliations, and by urging, persuading,
threatening and warning their employees to "refrain from assisting, becoming,
or remaining, members of the Union, have interfered with, restrained, and co-
erced their employees in the exercise of the rights guaranteed in Section 7 of the
Act.
The respondents' answer admits the allegations in the complaint concerning the
nature of the business involved and its operations in interstate commerce, but
denies the commission of any unfair labor practices.
Pursuant to due notice, a hearing was held at EIi Paso, Texas, on January 18,
19 and 20, 1945, before Irving Rogosin, the Trial Examiner duly designated by the
Acting Chief Trial Examiner. The Board and the respondents were represented
by counsel, and the Union, by its representatives. All parties participated in the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the
conclusion of the evidence, counsel for the Board, as well as counsel for the
respondents, moved to conform the pleadings to the evidence adduced with respect
to formal matters. The motions were granted without objection. All parties
were afforded an opportunity to argue orally upon the record and to file briefs.
UNION MANUFACTURING COMPANY 259
Counsel for the Board argued orally upon the record ; counsel for the respondents
declined to do so, but filed a brief with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Morris Harris and Anna Harris, copartners doing business as Union Manu-
facturing Company, are engaged in the manufacture, sale and distribution of
men's work clothing and matching cotton uniforms at Los Angeles, California and
El Paso, Texas. The El Paso, Texas, plant is the only plant involved in this
proceeding During the 6 months preceding the hearing, the respondents pur-
chased in the conduct of their business at their El Paso plant, raw materials
valued in excess of $100,000, of which approximately 90 percent was shipped to
the plant at El Paso from points outside the State of Texas. During the same
period, the respondents manufactured, sold and shipped from the said plant
finished products valued in excess of $150,000 of which approximately 98 percent
was shipped to points outside the State of Texas. The respondents concede that
they are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America is a labor organization admitting
to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During the summer of 1943, the Union initiated an organizational campaign
among the employees of the respondents at their El Paso plant. On or about
August 3, 1943, Ceferino Anchondo, the union organizer, accompanied by an
international representative, called upon Rubin Cohen, then superintendent and
manager of the respondents' plant,' and attempted to obtain Union recognition.
Cohen informed Anchondo that it would be necessary for him to confer with the
respondents at their Los Angeles office, and that he would communicate with
Anchondo as soon as he received word Thereafter, on August 14, 1943, an election
was held under the auspices of the Board among the employees of the respondents
at the El Paso plant; pursuant to a consent election agreement 2 The Union was
defeated in this election and no collective bargaining representative was selected.
The speech of August 5, 1943
Toward the close of the work day on August 5, 1943, shortly before the impend-
ing election, Superintendent Rubin Cohen assembled the employees at the plant 2
and delivered a speech to them According to Francisca Chavez, whose discharge
is considered hereinafter, Cohen stated, during the course of his speech, in which
lie announced a wage increase, that the War Labor Board would not approve the
' As will hereinafter appear, Cohen was replaced as superintendent and general manager
by J H Roth on or about January 1, 1944.
2 The above finding is based upon a stipulation by all the parties in connection with the
consent election agreement in Case No 16-R-695.
3 The plant at this time was located at E Missouri Street and occupied a small area on
one floor of a building During September and October, 1944 it was removed to Texas
Stieet, where it occupied three floors.
6 6 2 514- 4 6-v o l 6 3--`18
260 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD
granting of any higher wage increase and that any additional increase which
might be grnted would be of no avail inasmuch as "the Government would get it
all", that prices and taxes would rise and that ultimately employees would receive
no more money . He then added , according to Chavez , that no union or anyone
else could accomplish any more for the employees and that if anyone were to
procure an increase for them it would be Cohen himself. Chavez further testified
that Cohen warned the employees that "at the slightest disturbance" the plant
would be closed and the machines removed to Los Angeles ; that the respondents
were indifferent about operating the plant at El Paso and that in the event that
the plant were removed , Cohen himself as well as the other employees would be
without a job.
However, Cohen , whose object in delivering the speech , according to him, was
to stimulate production , testified that he read the speech from a typewritten text,
prepared in advance, and that he at no time digressed therefrom during the course
of the speech . ' Chavez, who , except for tb' omission of any reference to decline
in production and failure to maintain quotas, related the substance of the type-
written text of Cohen 's purported speech with substantial accuracy , was sub-
stantially corroborated by Board witnesses , including Esinira Holguin and
° The text of the prepared speech, according to Cohen's version , follows :
GOOD NEWS
We will again give every employee who is with us on Dec 24th a one week ' s vaca-
tion with pay, just as we did last year, however , anyone who is hired after Sept. 15
will not k e eligible to receive this vacation with pay.
Now I am going to talk to you regarding our progress in this factory For the past
six months we have been working with the War Labor Boaid regarding an increase
in your wages. After many trying months we have finally been given permission to
increase your hourly rate from 40¢ to 42% 0. This was very fortunate for us because
the War Labor Board as a rule rejects all applications unless we show that it is
necessary . Under these circumstances all of you should realize that I am always
looking out for your interest, trying at all times to make it a happier and more com-
fortable place to work in, and as a result of this you are the highest paid factory em-
ployees in El Paso, and I want to make it clear to you that should there be any chance
of getting further increases for you , I promise to do my best to obtain then.
Now let 's look at the other side of the picture In the past six months , instead of
going forward , we have been going backwaid Our daily production has fallen off
considerably . Many employees have left their jobs without giving notice Others
have stayed away from work without cause . There has been fighting and disagree-
ments among some of the operators Some are unwilling to co -operate , to help the
line when needed There has been talking and carrying on while working . Add all
these things up and you have the answer to our problems-why we are unable to
maintain our daily quota
All of you know that this factory is a branch of Los Angeles , but what you do not
know is how hard I had to work to get them to start this factory here . At first they
were not interested in conning to El Paso , but after I told them that they would never
be sorry if they started here , they then agreed to open this factory Now , the point
I am trying to put over with all of you is this-in the event this factory continues
to make such poor showings as we have in the past, and should we continue to have
trouble, this factory will be closed to all of us including myself. Honestly speeking,
(sic) I do not believe that any of us would want this firm to pull out of El Paso for
many reasons.
1. We are all helping the war effort.
The firm has always treated us very nicely.
3 We can all have our jobs here as long as we like if we always do the right thing.
4 The boys who left us to fight for our freedom want to come back and find us ready
to give them employment . What will they thing ( sic) and say if they find this
factory closed and no job to go to?
I know Joaquin ( etc) would say that we let them down while they are fighting and
giving their very lives so that you and I can have a decent world to live in. And
UNION MANUFACTURING COMPANY 261
Anchondo, the union organizer' Upon the basis of the foregoing, the undersigned
concludes and finds that Cohen made the statements in his address to the em-
ployees attributed to him by Chavez and other Board witnesses substantially as
testified to by them e
The "bottlecap" incident
On August 13, 1943, the day preceding the election, Chavez and other employees
were wearing union buttons at the plant.7 During the course of the day, Forelady
Britton in charge of line No. 2, distributed "soda pop" bottle caps to about 4 or 5
employees. According to Chavez, she observed 11 or 12 employees who were not
union members wearing these bottle caps as a substitute for union buttons.
In connection with this incident, Esmira Holguin testified that Forelady Britton
offered her a bottle cap in lieu of a button on this occasion. When she refused
it, stating that she had a button of her own, Britton asked her where she had
obtained it, and Holguin replied that she had had it. According to Holguin,
Britton laughed, and Holguin told her "not to laugh about [her] button because
she might get in trouble." Britton replied that if she ever did, Cohen would "save
her." 8
Although the respondents contended that the distribution of bottle caps was
merely a prank, one of many indulged in by the employees, it is clear from the
record that this particular "prank" was instigated by a supervisor in an atmosphere
of tension on the day preceding the election, and was intended to, and did in
fact, ridicule and disparage the Union as well as its members.'
what do we do' Nothing compared to the sweat and blood that they are spilling
for us
Let me tell you right now that we can all be a laige happy family if we only make
up our minds to do the best we can, discontinue all petty differences, and stay on the
job.
I thank you.
The speech was also read to the employees in Spanish translation by Jose Ramos,
cutting room foreman and assistant to Cohen. According to Ramos, he wrote out a
translation of the speech at Cohen's request about an hour before it was delivered, and
testified that he, as well as Cohen, read the speech from a written text. Ramos ap-
peared to have no independent recollection of the substance of the speech and admitted
that he had his memory refreshed from the written English text about 15 minutes
before testifying.
Anchondo's presence at the plant on this occasion was corroborated by Cohen, who
admitted that Anchondo was waiting for him at the conclusion of his speech, and that he
had a conversation with him at that time Anchondo testified that he made a memorandum
of the incident shortly thereafter which he subsequently turned over to the union repre-
sentative who succeeded him
° Cohen admitted that, at the conclusion of his speech, Chavez requested permission to
address the employees Ac^prding to Chavez, when Cohen told her that she would have to
go to his office and first to him what she intended to say, she declined, stating that lie
would hear what she had to say when she spoke to the employees. He thereupon refused
her permission to speak. If, as Cohen contended, the purpose of the speech was merely
an appeal to the employees to maintain production and no reference was made to unions,
it seems unlikely that Chavez would have requested an opportunity to speak to the em-
ployees in an apparent attempt to answer Cohen's remarks. Although the respondents
were not required to provide its employees with a forum for debate, this incident seems
significant as corroborating the contention of Board witnesses as to the statements made
by Cohen during his speech.
° The button actually worn bore the legend "International Union of Mine, Mill & Smelter
Workers" in red, with the letters "C. I. 0." in bold type in blue in the center.
8 Britton did not testify, and Holguin's testimony regarding this incident stands un-
contradicted
° Chavez testified ". . We were all tense these days ; they [apparently the non-union
employees] were watching us ; we were watching them . " It should also be noted
that/the wearing of these bottle caps served to identify the employees in the plant who
were not members of the Union, inasmuch as the record does not indicate that all the
union members wore their union buttons that day.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holguin, who was a member of the Union, and active in soliciting memberships
in its behalf, also testified that, during the lunch period on the same day, she
was observed by Forelady Britton explaining to employees, at the sample ballot
posted in the plant, the manner in which to mark their ballots if they wished to
vote for the Union. Holguin saw Britton enter Cohen's office following this inci-
dent and, accordr_g to her testimony, when Holguin went there at the close of
the day to report that she had not fulfilled her production quota, Cohen warned
her not to "try to get into anything" because she would get into trouble, and
made mention of a "black -list", remarking, "You won't have a job any place
else." 30
The. "solicitation" incident
Sometime during the month of March 1944, Chavez testified, during the lunch.
period, Valentina Mesa, an employee, requested her to translate a union applica-
tion card. According to Chavez, she told her that she would do so after work.
While they were thus engaged in conversation, and as Chavez was about to in-
dicate to Mesa the place on the application card for her signature, Superintendent
Roth approached unnoticed and snatched the card from Chavez. Roth asked
her if she knew that solicitation of membership was prohibited at the plant.
Chavez acknowledged that she knew this, but denied that she was soliciting
membership, stating that Mesa had requested her to translate the card. Roth
retained the card and left. Shortly thereafter, Chavez went to his office, pro-
tested his conduct in taking the card from her and reminded him that soliciting
was permissible during lunch periods. According to Chavez, Roth stated, "You
can't do that here."
About a week later, Roth sent for Chavez and showed her a letter from the
Los Angeles office of the respondents, recommending that she be disciplined
by a lay-off of one week for infraction of the rules" Roth, however, decided
to ignore this recommendation, but reprimanded her instead, and nothing fur-
ther was done respecting this incident.
The undersigned finds that this incident occurred substantially as testified to
by Chavez, and that Roth made the statements attributed to him by her. More-
over, the record disclosed no special circumstances justifying the promulgation
of the rule against solicitation in the interest of maintaining production, and
the undersigned, therefore, finds that, insofar as it prohibited solicitation of
union membership at the plant on the employees' own time, it was violative of
the Act.12
Upon the basis of the foregoing, and upon the entire record, the undersigned
finds that, by the remarks of Superintendent Cohen to the employees, during the
10 Although Cohen generally denied that he interrogated en$loyees or attempted to in-
fluence them or discriminate against them in connection with their union activities, he
was not asked concerning, nor did he deny making the statements attributed to him by
Holguin . The undersigned credits Holguin ' s testimony concerning this episode Holguin
was subsequently discharged on August 16, 1943, and was one of four employees who
were discharged and subsequently ieinstated on January 4, 1944, pursuant to the settle-
ment agreement hereinafter to. On August 18, 1944, she voluntarily left the respondents'
eniplov.
11 After Roth succeeded Cohen as superintendent in the early part of January 1944,
Roth and H . D Kroll, general manager of the respondents ' plants, formulated a set of
rules and regulations which were posted in the plant on or about January 29, 1944
Rule 12 provides : "Solicitation . No solicitations of any kind are permitted on the
premises without permission of the management . Peimission for such solicitation must
be obtained from the plant manager. This regulation prohibits the solicitation of funds
or memberships or lottery ." Roth , whose testimony concerning this episode substantially
corroborated Chavez , did not deny that it occurred during the lunch period.
^ See N L. R. B. v Peyton Packing Company , Inc., 142 F ( 2d) 1009 (C. C A 5), enforc-
ing 49 N L It . B. 828, cert . denied 65 S. Ct. 66
UNION MANUFACTURING COMPANY 263
-course of his speech, on August 5, 1943, as found above, by the conduct of Fore-
lady Britton and her statements to Holguin on the day before the election and
Thy the statements of Superintendent Cohen to Holguin on the same day, by
the conduct of Superintendent Roth and his statements to Chavez in March 1944,
in connection with the solicitation incident, by the promulgation of the rule
against solicitation, insofar as it prohibited solicitation of union membership
on employees' own time, and by the totality of such conduct, the respondents
have interferred with, restrained, and coerced their employees in the exercise of
-their rights guaranteed in the Act 13
B. THE DISCRIMINATORY DISCHARGE OF FRANCISCA CHAVEZ
Francisca Chavez entered the employ of the respondents on April 7, 1942, as
a special operator. In August 1943, her interest in the Union began to manifest
itself. Mention has already been made of her encounter with Cohen at the con-
clusion of his speech on August 5. On August 9. 1943, she joined the Union and
-was elected president of its local chapter about a week later. She became the
principal proponent of the Union at the plant, working in collaboration with
Anchondo, the under organizer, and soliciting membership among the employees.
That her mmebership in and activity in behalf of the Union was well-known to
the respondents' supervisors is attested by Forelady Mitchell, who testified that
she-knew that Chavez was the most active member in the Union and that she so
informed Cohen in response to his inquiry shortly after the election.'
On September 25, 1943, Cohen discharged her allegedly for excessive absentee-
ism. On January 3, 1944, Chavez, together with three other employees, including
Esmira Holguin, hereinabove referred to, all of whom were alleged to have been
discriminatorily discharged, were reinstated by the respondents pursuant to a
settlement agreement approved by the Regional Director."
On January 5, 1944, Roth assumed his duties as superintendent, succeeding
Cohen Sometime in March 1944, Superintendent Roth asked Forelady Mitchell
to recommend one of the employees to him for a position as forelady. Mitchell
told Chavez that she had recommended her for the position, and suggested that
Chavez talk to Roth, but she declined the opportunity for the pi oniotnon.
13 Evidence relating to events transpiring prior to September 3, 1943, was admitted
subject to the continuing objection of the respondents , who contended that the settlement
agreements approved by the Regional Director on that date, in Case No. 16-C-984, and on
December 20, 1943 , in Case No . 16-C-993, constituted a bar to any consideration of
unfair labor practices antedating those agreements In view of the findings by the under-
signed that the respondents have committed unfair labor practices subsequent to the date
of the settlement agreements , as indicated above and, as' will hereinafter appear with
respect to the discriminatory discharge of Chavez, the respondents' contention in this
regard has been rejected . This principle has been well established by the Board and the
courts, and has received the judicial imprimatur of the Supreme Court in the recent case
of Wallace Corporation v. N L. P. B , 323 U. S. 248. The respondents' further contention,
urged in their brief, that the posting of the usual notices following the execution of the
settlement agreements , and the subsequent discharge of Cohen as superintendent , dissi-
pated the effects of any unfair labor practices which may have been committed prior to
January 1944 , is equally without merit. In the first place, it was admitted by the
respondents that Cohen was not discharged for any reasons connected with the com-
mission of any unfair labor practices by him, nor was the reason for such discharge ever
communicated to the employees Furthermore, as has already appeared, and as will here-
inafter appear , Roth, who succeeded Cohen as superintendent, engaged in conduct found
by the undersigned to constitute unfair labor practices , following January 5 , 1944, when
he assumed his position.
1* Chavez testified without contradiction that as early as about August 3, 1943 , Forelady
Mitchell "accused" her of being the union leader but that she denied this in view of the
fact that she did not actually become a member until August 9.
15 This settlement agreement in Case No . 16-C-998 was approved by the Regional
Director on December 20, 1943.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of May 8, 1944, while Chavez was at A ork she complained of
feeling ill and requested permission to leave from Forelady Mitchell, who referred
her to Roth. Chavez was finally permitted to leave at about noon Later that
afternoon, she was seen by a physician who prescribed for her, ordered her to
bed and warned her that she might require an operation. On Thursday, May 18,
1944, she was operated upon and remained in the "clinic" until Sunday, May 21,
1944, at which time she was removed to her home and ordered to bed. Later
that day Chavez was visited by Josefina Cervantes, a fellow employee, on instruc-
tions from Superintendent Roth to ascertain when he might expect Chavez to
return to work. Cervantes reported on the following day that Chavez was "very
ill", but inasmuch as this information did not indicate to Roth when he might
expect her to return to work he instructed Cervantes to call on Chavez again.
Cervantes did so, and upon her return to the plant notified Roth that Chavez
would send him a message.
According to Anchondo, he called on Chavez at her home on about May 10,
1944, after learning that she was ill. At her request, he attempted to telephone
Roth late that day, but was unable to reach him. The following morning, how-
ever, he telephoned Roth at the office, informed him that Chavez was ill and that
she had asked him to notify Roth that she would be unable "to go to work for
a few days." Anchondo testified that Roth thereupon told him that it would be
"all right" for her to be out if she was ill and that she need not worry about
losing her job 1s
On May 21, the day of Chavez' return from the clinic, Anchondo again called
on Chavez. She informed him of Cervantes' visit and again requested him to
call Roth. When Anchondo called Roth the following day and informed him that
Chavez was still ill, Roth asked him how long she would be ill. Anchondo in-
formed him that she was still in bed and, according to Anchondo, Roth assured
him that "it was all right." On the day following Cervantes' second visit, An-
chondo again communicated with Roth and reported that Chavez was still ill.
In response to a remark.by Roth that Chavez had been absent from the plant
several weeks and an inquiry as to when she would be able to return to work,
Anchondo stated that she would be unable to return to work for some time.
Again, according to Anchondo, Roth assured him that it was "quite all, right."
On July 10, Chavez was informed by her physician that she could return to
work the following week. On the morning of July 17, 1944, Chavez reported for
work at the plant at the usual time. Roth informed her that he had no work
for her. At his suggestion she returned on July 24, but was again informed
that he had nothing for her. According to Chavez, she thereupon asked him
whether he wanted her "to keep coming" and whether he would give her a job.
He replied that he would, if she would "just keep waiting." Chavez telephoned
to the plant on several occasions thereafter but was informed each time that
Roth was not in. On July 18, 1944, she made application for employment at
the United States Employment Service and reported there the following week.
On December 8, 1944, Superintendent Roth sent a letter to Chavez by registered
mail informing her that the respondents had removed to a larger plant and
were in urgent need of skilled operators.17 The letter, after observing that she
10 Anchondo testified that he spoke to Roth on the telephone on this occasion for about
10 minutes because he had had some difficulty on a previous occasion arranging leave for
a former employee whom Roth had refused to grant more than 15 days leave.
11 According to the respondents , similar offers of reemployment had been offered on
November 28, 1944, to four other employees who, the respondents contended , had been
discharged on similar grounds as Chavez. The delay in the offer of Chavez , according to
the respondents , was due to the fact that charges were pending against them at the time
and they sought to confirm the propriety of offering her reemployment with the Regional
Director before doing so.
UNION MANUFACTURING COMPANY 265
had been one of the respondents' efficient operators, and that she had been dis-
charged on May 8, 1944 for infraction of the rules, continued :
Subject to prompt acceptance and to your compliance with our House rules
we offer you as of this date, re-employment, at the same job you had before,
and at the same rate of pay which you were getting when your employment
was severed.
Chavez did not return to the plant following receipt of this letter, testifying that
she replied by letter declining the respondents' offer.28
Respondents' contentions
The respondents contend that they refused to reemploy Chavez on July 17, 1944,
for the reason that she had, by her extended absence, violated certain of its
rules, the pertinent provisions of which are set out below is
Prior to January 1944, according to the respondents, efficiency of operations
at the plant had been impaired by excessive absenteeism of two types One was
the occasional absence, the other that of a prolonged character, referred to by the
respondents as "overstaying leave." 20 After Roth assumed his position as super-
intendent, he formulated and promulgated a set of rules which were posted in
English and Spanish translation at the plant on or about January 29, 1944.
There was no contention that Chavez had absented herself from the plant with-
out permission. Moreover, it is clear from an examination of the rules relied
upon, in part, by the respondents for the refusal to reemploy Chavez that she did
not in fact, violate any of the rules involved. It will also be noted that, while
the rule with respect to tardiness indicates that habitual tardiness, if prolonged,
would constitute cause for dismissal, violation of none of the other rules was
accompanied by a similar penalty. -
The respondents, however, 'contend that, in addition to the rules already
adverted to, although no specific provision ,was made therefor, there devolved
upon an employee absent on account of illness, the duty to keep the respondents
informed as to when the employee would be able to return to work 21 Superin-
tendent Roth and General Manager Kroll both testified that this requirement
was essential to prevent interruption of continuous line operation in the plant,
12 Although the record does not indicate that Chavez stated the reason for her refusal
in her letter , she testified that she refused the offer because the respondents ' letter had
stated that she "had broken the rules " and that when she was reinstated on a prior
occasion she "was so humiliated with so many things done to [her]" that she was unwilling
to return until the Board "could settle up things" for her.
112-Because of the line system in this plant and the time-work basis on which all
operators work, everyone is requested to remain at his or her machine or station and if
it is necessary to leave for any unusual length of time, please inform your forelady so
that she can arrange for a substitute for the time you must be absent.
3-ABSENCE When it becomes necessary to be out because of illness or other emer-
gencies you are requested to report beforehand , if possible , to the office the probable time
you will be out. Only in this manner can we arrange for a substitute to carry on at your
machine
4-EXTRA TIME OFF: Any extra time off must be arranged for through conferences
with the plant manager and when allowed, the length of time must be specifically arranged.
5-TARDINESS : Employees must be on hand on time each week -day, for the successful
operation of the entire line depends upon everyone in it. Habitual tardiness is reflected
on your personnel record and if prolonged will be cause for dismissal.
20 Typical of this form of absenteeism was the situation where an employee , after obtain-
ing permission for leave of a specified duration would remain absent from the plant with-
out obtaining further permission or notifying the respondents.
21 Although Roth testified that he would expect an employee absent on account of illness
to report every two weeks, General Manager Kroll expressed the opinion that an employee
should report as often as once a week or at intervals equivalent to the pay period.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of absences of employees without prior notice and permission, and to
afford management an opportunity to procure a substitute. Aside from the fact
that there is no dispute that Chavez did in fact obtain permission in advance,
Anchondo testified, without contradiction, that Roth had informed him during
the course of one of his telephone conversations with lam that he had assigned
a substitute to Chavez' machine. Whether or not such a requirement on the
part of the respondents was reasonable, there is no evidence that employees were
ever notified that they were required to keep the respondents regularly advised
as to when they would be able to return to work, in order to retain their jobs.
Roth testified that, not having heard from Chavez since Anchondo's telephone
call, following Cervantes' last visit to Chavez, he "proceeded on the idea that
Miss Chavez had given up her job." Roth admitted that Chavez had "always
been a cooperative, capable, and willing worker, and . . . had always abided
by the rules" ; that, as far as he knew, "she was very diligent about coming to
me or the forelady if she wanted to be off for any reason I have no complaint
whatever regarding Miss Chavez." In view of the foregoing, it is difficult to
understand why the respondents, after having been informed that Chavez had
been ill and undergone an operation and had been afforded an opportunity to
verify this through her physician 22 and to determine from him the probable length
of her disability, should urge the alleged violation of these rules as the sole
ground for refusing to reemploy her. Both Roth and Forelady Mitchell admitted
that respondents could have used an operator at the time that Chavez reported
for work on July 17, 194423 Chavez' testimony that Roth told her that he had
no work for her at the time was uncontradicted Furthermore, there is no indi-
cation in the record that Roth informed her that he was denying her reemploy-
ment for the reason that she had violated the rules
Roth contended at the hearing, however, as a further ground for refusing
'Chavez reemployment, that four other employees who had absented themselves
in violation of the rules had been denied reemployment and that in fairness
to these employees he was unable to offer employment to Chavez An examina-
tion of this contention as a ground for denying Chavez reemployment, reveals
it to be without merit.24
Concluding findings
Chavez' activity on behalf of the Union was well-known to the respondents
beginning in August 1943. Her behavior at the conclusion of Cohen's speech to
the employees, the exchange between her and Roth in connection with the inci-
dent involving the application card, Roth's admission that he learned, as a
result of his inquiry from Forelady Mitchell, that Chavez was the most active
member of the Union, and the nature and extent of her participation in union
activities at the plant, are all indicative of this fact. The respondents attempted
to justify the refusal to put her to work on July 17, by relying upon her alleged
violation of a set of rules, and when shown to have afforded no real justification
for this refusal, the respondents sought to invoke a requirement which it had
never before brought to the attention of this or any other employee. Moreover,
za Roth admitted that Anchondo furnished him with the name and telephone number of
Chavez' physician during a telephone conversation in which Chavez' condition was dis-
cussed
zs The record discloses that referrals of three employees were made to the respondents
by the USES on July 24, 1944, pursuant to the respondents' application
Z' The employees referred to were those subsequently offered reemployment on November
28, 1944 The record discloses that none of these employees had been absent because of
illness ; that two of them had last worked on June 10, 1944, one on July 7, and the other
July 17, 1944; and that all had been denied reemployment after July 17, 1944, when
Chavez reported for work following her illness.
UNION MANUFACTURING COMPANY 267
it is apparent from the respondents' letter of December 8, 1944, that the respond-
ents took the position that Chavez was discharged on May 8, 1944, the date on
which she first left the plant due to illness That the respondents could not
then have conceivably anticipated that Chavez would subsequently violate any
rules of the respondents must be readily apparent.
Although the letter of December 8, 1944, offering Chavez reemployment, does
not affect her right to reinstatement, it does operate to prevent the accrual of
back pay after that date. The respondents offered Chavez reinstatement to her
former position or one substantially equivalent thereto under the same rules and
working conditions which prevailed at the time of her discharge. No new con-
dition or other penalty was imposed. She chose to refuse to go back to work
under the same conditions. That was her right. Nevertheless, it does not
follow that she is entitled to back pay from December 8 She chose to say "they
said I had broken the rules and . .. I was so humiliated . . . that I felt until
the Labor Board could settle things up for me, if they could, then I would go
back." In effect, Chavez elected to withhold her employment until the unfair
labor practices had been remedied by the Board. In so doing Chavez, assumed
the status of a striker, and as such was not entitled to back pay while striking,
from and after the date that the respondents offered to reinstate her.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that, by the discriminatory discharge of and refusal to
reinstate Francisca Chavez on July 17, the respondents have interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondents set forth in Sec-
tion III above, occurring in connection with their operations described in Sec-
tion I above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and that they
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondents have discriminated against Francisca
Chavez in regard to the hire and tenure of her employment. It will therefore
be recommended that the respondents offer to Francisca Chavez 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 she may have suffered by reason of such discrimination by payment to
her of a sum of money equal to the amount which she normally would have earned
as wages from July 17, 1944, the date of the respondents' refusal to reemploy her,
to December 9, 1944, the date on which the respondents offered her reinstatement,
less her net earnings n during such period. -
zs By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440 Monies received for work performed upon
Federal, State , county, municipal , or other work -relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Fran-
cisca Chavez the respondents have engaged and are engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act the respondents have engaged
and are engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondents, Morris Harris and Anna
Harris, copartners, doing business as Union Manufacturing Company, of El
Paso, Texas, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers of America,
or any other labor organization of their employees, by discharging, laying off, or
refusing to reinstate any of their employees, or in any other manner discrim-
inating in regard to the hire or tenure of their employment, or any term or condi-
tion of their employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Amalgamated Clothing Workers of America, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or any other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will effectu-
ate the policies of the Act :
(a) Offer Francisca Chavez immediate and full reinstatement to her former or
a substantially equivalent position, without prejudice to her seniority and other
rights and privileges ;
(b) Make Francisca Chavez whole for any loss of pay she may have suffered
by reason of the respondents' discrimination against her by payment to her of a
sum of money equal to the amount she normally would have earned as wages
during the period from the date of the respondents' discrimination against her
to December 9, 1944, less her net earnings 26 during such period ;
(c) Rescind immediately the rule against solicitation insofar as it prohibits
union activity and solicitation on company property during the employees' own
time;
(d) Post at their plant at El Paso, Texas, copies of the notice attached hereto
marked Appendix A, and a Spanish translation thereof.27 Copies of said notice to
26 See footnote 25, supra.
27 The record discloses that at least 95 percent of the respondents ' employees are Mexicans
and probably unable to read English . Moreover , the respondents themselves deemed It
necessary to resort to translation into Spanish in the instances of Cohen's speech and the
posting of rules in the plant.
UNION MANUFACTURING COMPANY 269
be furnished by the Regional Director of the Sixteenth Region, shall , after being
duly signed by the respondents ' representative , be posted by the respondents im-
mediately upon receipt thereof, and maintained by them for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the respond-
ent to insure that said notices are not altered , defaced, or covered by any other
material;
(e) File with the Regional Director for the Sixteenth Region on or before
ten (10 ) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondents notify said Regional Director
in writing that they have complied with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 3, as amended, effective July 12, 1944-
any party may within fifteen ( 15) days from the date of the entry of the order
transferring the case to the Board , pursuant to Section 32 of Article II of said
Rules and Regulations , file with the Board, Rochambeau Building, Washington,
D. C, an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections ) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board , request therefor must be made in writing to the Board
within ten ( 10) days from the date of the order transferring the case to the Board.
IRVING ROGOSIN,
Trial Examiner.
Dated March 10, 1945.