Farah Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1973

202 N.L.R.B. 666 (N.L.R.B. 1973)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farah Manufacturing Company , Inc. and Amalgamated
Clothing Workers of America , El Paso District
Joint Board, AFL-CIO . Cases 28-CA-2036,
28-CA-2054,28-CA-2089,28-CA-2097, 28-CA
-2099, 28-CA-2109, 28-CA-2126, 28-CA-2137,
28-CA-2152, and 28-CA-2210
March 23, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 24, 1972, Administrative Law Judge'
James R. Webster issued the attached Decision in
this proceeding. Thereafter, the Respondent and
General Counsel filed exceptions and supporting
briefs2 and the Charging Party filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
with the following modifications: 3
Joseph Chemali, Respondent's vice president,
discharged Luis Alvarez on July 10, 1970, assertedly
for insubordination. The Administrative Law Judge
concluded that the discharge was, indeed, for
insubordination and thus found that it was not
unlawful. We do not agree.
Prior to Alvarez' discharge, employees on numer-
ous occasions had given both pro- and anti-union
speeches in the main hallway of the Gateway plant
during the lunchbreak. Such activity occurred on
July 10, creating some congestion in the hallway
which Chemali and several supervisors sought to
alleviate by directing employees to stand back
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Respondent's request for oral argument is hereby denied, as the record,
including the briefs, adequately presents the issues and the positions of the
parties
Contrary to Chairman Miller's position with respect to the discharges of
Hector Caballero and Roberto Rodriquez, set forth in in 3 below, we agree
with the Administrative Law Judge that Caballero, whose name was
submitted to Respondent in the union telegram of November 26, 1969, and
Roberto Rodriquez were discharged on November 29, 1969, because
Respondent was enforcing more strictly its rule against absences after a
holiday in retaliation against the union activities of its employees The
record shows that in 1968 only three employees were discharged after
Thanksgiving for violation of the rule There were no discharges for
violation of the rule in connection with the Fourth of July or Labor Day
holidays in 1969 However, in November 1969, 15 employees were
discharged after the Thanksgiving holiday We agree with the Administra-
tive Law Judge that this was an inordinate number of discharges and is
further evidence of the Respondent's determination to punish its employees
against the walls in order to leave a central passage
open. Chemali also told a couple of employees giving
pro- and anti-union talks to lower their voices.
Finally, Chemali came to Alvarez, who was standing
against the west wall of the hall and speaking to an
estimated 100 employees, and told him to lower his
voice; Alvarez, however, continued talking, as the
Administrative Law Judge found, in a very loud
tone.
A few minutes later Chemali repeated his order but
with no more success. Alvarez told the employees
that Chemali was trying to quiet him but because
there was freedom of speech he was going to keep on
talking. A third time Chemali ordered Alvarez,
without result, to lower his voice. Shortly thereafter
the bell ending the lunch period rang and Alvarez
returned to work. He was soon called out by
Chemali, who asked him why he had not lowered his
voice. Alvarez replied that he was trying to reach a
lot of people. Chemali then told Alvarez he was
discharged for "not doing what I asked you to."
There is no question but that Alvarez was giving
his prounion talk in an area and at a time all concede
to have been appropriate for such activity. Conse-
quently, we find in these circumstances Alvarez was
engaged in a protected concerted activity at the time
Chemali ordered him to lower his voice. It follows
that, even though on company property, Alvarez was
engaged in an activity Respondent had no right to
limit absent some showing that the conduct sought to
be restricted-here Alvarez' loud tone-was having
some demonstrably disturbing effects on plant
business or operations such as distracting employees,
if any, who were at work during what was the noon
break for others. However, there is no evidence and
no contention that Alvarez' loud tone was creating a
problem in any area of proper management concern
and, in fact, it is not contended that he was
discharged for any such reason. Rather, as stated,
Alvarez was discharged solely for refusing to obey
Chemali's order to lower his voice, a refusal Chemali
for their union activity in view of Caballero' s and Rodriquez' reasonable
explanation for their absence on the day after Thanksgiving, we affirm the
Administrative Law Judge' s conclusion that they would not have been
discharged but for the Union' s organizational efforts
3 Chairman Miller would not adopt the Administrative Law Judge's
finding that the discharges of Hector Caballero and Roberto Rodriquez on
November 29, 1969, for failing to come to work on Friday, November 28,
1969, the day after Thanksgiving, was unlawful The record shows that
Respondent had a strict rule against employees being late for , or absent
from work the day after a holiday and vigorously enforced the rule by
discharging offending employees, even to the point on one occasion of
discharging a supervisor for reporting late after a holiday, although his
lateness was apparently caused by striking airline employees it appears that
the union activity of Caballero and Rodriquez was minimal and that
Respondent had no knowledge of any such activity by Rodriquez in view
of the foregoing, the Chairman is of the opinion that there is insufficient
basis to support the finding that the discharges of Caballero and Rodriquez
were related in any manner to union activity Accordingly, he would dismiss
the complaint as to them
202 NLRB No. 99
FARAH MANUFACTURING CO 667
equated with insubordination and, thus, with proper
grounds for discharge.
Under the Act, the manner in which an employee
carries on his protected activities is not subject-save
for limited exceptions not relevant here-to the
whim, wish, or authority of his employer. Conse-
quently, this is not a case of Alvarez' improper
insubordination but rather one of Chemali's unlaw-
ful interference with, and restraint and coercion of,
Alvarez in the exercise of activities protected by
Section 7 of the Act. We find that the discharge of
Alvarez for refusing to comply with Chemali's orders
to lower his voice violated Section 8(a)(1) of the Act.4
In view of this finding, we shall order that
Respondent cease and desist from engaging in the
conduct found unlawful and that it offer Luis
Alvarez reinstatement and backpay in the manner
provided for other unlawfully discharged employees
in that part of the Administrative Law Judge's
Decision entitled "The Remedy."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Farah Manufacturing Company, El Paso, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Amalgamated
Clothing Workers of America, El Paso District Joint
Board, AFL-CIO, or any other labor organization,
by discharging employees because of union activities
in its plants or because of giving testimony under the
Act, or in any other manner discriminating against
employees in regard to hire or tenure of employment
or any terms or conditions of employment.
(b) Maintaining and enforcing a broad no-solicita-
tion rule precluding union solicitation in work areas
or in other departments during nonwork time, and
utilizing a change in colors of name tags to identify
and interfere with employees soliciting for the Union
in other departments during nonwork time.
(c) Instituting and maintaining a practice of close
surveillance of employees while at work and during
nonwork time as to their conduct, their work errors,
and their violation of company rules and procedures;
and augumenting such close surveillance by assign-
ing additional supervisors to engage in it, by
confronting employees with Vice President Chemali
as to each transgression, and by utilizing a recording
of such transgressions as a pretext for discharge or
other disciplinary action when such practice is
instituted because Respondent's employees have
engaged in, or are engaging in, union or other
protected concerted activities.
(d) Instituting or maintaining a rule restricting all
personal conversations during work time when such
rule is instituted because Respondent's employees
have engaged in, or are engaging in, union or other
protected concerted activities.
(e) Instituting or maintaining a rule that a packer is
to be discharged for a single error of packing an
order without it being checked when such rule is
instituted because Respondent's employees have
engaged in, or are engaging in, union or other
protected concerted activities.
(f) Interrogating employees as to union activities or
affiliation in a coercive manner.
(g) Discharging employees for refusing to obey
orders which unlawfully interfere with the employ-
ees' engaging in union or other protected concerted
activity.
(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to the following named employees
immediate and full reinstatement to their former jobs
or, if these jobs no longer exist, to substantially
equivalent positions without prejudice to their
seniority or other rights and privileges and make
them whole for any loss of pay that they may have
suffered by reason of the discrimination against
them, in the manner set forth in the section of the
Administrative Law Judge's Decision entitled "The
Remedy":
Ernesto Alfaro Manuel Montoya
Luis Alvarez Juventino Morales
Hector Caballero Manuel Pedroza
Guillermo Chavez Guadalupe Pineda
Clemente Escalante Mario Porras
Jesus Espinoza Ramon Rios
Gregorio Gutierrez Roberto Rodriquez
Ruben Lucero Isaac Soto
Ernie Marrufo Carlos Vera
Gilbert Minjarez Jose Villagran
(b) Make whole Johnny Rodriquez for any loss of
pay that he may have suffered by reason of the
discrimination against him from date of discharge to
August 15, 1970, in the manner set forth in the
section of the Administrative Law Judge's Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
4 In view of our finding here we need not consider, as urged by the
General Counsel, whether Alvarez' discharge also violated Sec 8(a)(3)
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(d) Post at its El Paso plants in English and
Spanish copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 28,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by
discharging employees and by changing working
rules and procedures to interfere with and to
discourage membership in the Amalgamated Cloth-
ing Workers of America, El Paso District Joint
Board, AFL-CIO:
WE WILL offer the following named employees
full reinstatement and pay them for the earnings
they lost as a result of their discharges, plus 6-
percent interest:
Ernesto Alfaro
Luis Alvarez
Hector Caballero
Guillermo Chavez
Clemente Escalante
Jesus Espinoza
Gregorio Gutierrez
Ruben Lucero
Manuel Montoya
Juventino Morales
Manuel Pedroza
Guadalupe Pineda
Mario Porras
Ramon Rios
Roberto Rodriquez
Isaac Soto
Ernie Marrufo Carlos Vera
Gilbert Minjarez Jose Villagran
WE WILL pay Johnny Rodriquez for the
earnings he lost from the date of his discharge to
August 15, 1970, plus 6-percent interest.
WE WILL NOT discharge or discriminate against
any employee forjoining or supporting the above-
named Union or any other union.
WE WILL NOT discharge any employee for
refusing to obey orders which unlawfully interfere
with his right to engage in union or other
protected concerted activities.
WE WILL NOT maintain or enforce a rule
prohibiting employees from engaging in union
solicitation during nonwork time in work areas or
in departments other than their own, nor will we
use the color of the name tags to identify and
interfere with employees soliciting for the Union
in other departments during nonwork time.
WE WILL NOT maintain a practice of very
closely watching and following employees while
at work or during nonwork time, nor will we
discipline employees for the slightest mistake or
rule infraction.
WE WILL NOT restrict all personal conversations
during work-time.
WE WILL NOT institute or maintain a rule that a
packer in the shipping department is to be
discharged for a single error of packing an order
without it being checked.
WE WILL NOT coercively interrogate employees
as to union activities or membership.
WE WILL NOT unlawfully interfere with our
employees' union activities.
FARAH MANUFACTURING
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building, U.S. Court-
FARAH MANUFACTURING CO 669
house, 500 Gold Avenue SW., Albuquerque, New
Mexico 87101, Telephone 505-843-2508.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case was heard
in El Paso, Texas, on January 25 through February 5, 1971,
February 16 through February 26, 1971, March 16 through
March 19, 1971, March 29 through April 8, 1971, April 20
through April 30, 1971, and June 1 through June 4, 1971.
The charges were filed by Amalgamated Clothing Workers
of America, El Paso District Joint Board, AFL-CIO, on
January 26, February 18, February 26, April 27, May 7,
May 14, June 2, June 23, July 10, August 5, August 18,
August 20, and October 27, 1970. The complaints,
amended complaints, and orders consolidating complaints
were issued on May 28, July 28, October 9, November 9,
and December 28, 1970. The complaints allege that
Respondent has violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act as amended, herein called
the Act, by discriminatory discharges, layoffs, and reas-
signments, and by engaging in surveillance, issuing
restrictive rules, questioning employees, instructing em-
ployees not to join or assist the Union, and isolating
employees
Briefs have been filed by the General Counsel, Respon-
dent, and the Charging Party. Respondent also filed a
motion to quash the brief of the Charging Party and bases
his motion on the fact that the Respondent received a copy
of the Charging Party's brief on September 22, 1971, in an
envelope showing a postmark of September 20, 1971, and
contends from this that the Charging Party's brief, if
similarly dispatched to the Trial Examiner would not have
been received by Monday, September 20, 1971, the date on
which briefs were due. The Respondent also contends that
no proof of service was enclosed with the copy of beef
forwarded to the Respondent by the Charging Party
The brief of the Charging Party was received by the
office of the Division of Trial Examiners in San Francisco,
California, at 9:08 a.m. on Tuesday, September 21, 1971,
and a certificate of service was received at 9 a.m. on
September 22, 1971. The certificate of service states that a
copy of the brief was mailed to Respondent on September
19, 1971 (Sunday), yet, as previously mentioned, Respon-
dent avers that it was postmarked September 20. In the
Charging Party's opposition to Respondent's motion to
quash, it is set forth that copies of the Charging Party's
brief to the Trial Examiner were also mailed on Septembers
19, 1971, but the envelope containing said briefs was not
retained by the receiving office.
I do not interpret Section 102.42 of the Board's Rules
and Regulation as requiring that a copy of a certificate of
service be furnished by one party to another, although it is
required to be furnished to the Chief or Associate Chief
Trial Examiner. Section 102.42 provides that "three copies
of the brief or proposed findings and conclusions shall be
filed with the trial examiner, and copies shall be served on
the other parties, and a statement of such service shall be
furnished." (Emphasis supplied.)
The purpose of a brief is to aid a trial examiner in his
analysis and evaluation of the testimony and evidence
presented in the hearing before him. However, to avoid
breeding laxity by litigants in the filing of timely briefs
with trial examiners and in view of the fact that the brief of
the Charging Party was not timely received, it is rejected
and will not be considered.'
Motions to correct the transcript were filed by the
General Counsel and the Charging Party. Limited motions
in opposition were filed by the Respondent. Insofar as the
motions to correct the transcript are not opposed, they are
granted. As to the items of the motions to correct that are
opposed, I make the following ruling:
The General Counsel's motion to correct is granted as to
the following items: page 676, line 16; page 785, line 19;
page 3481, line 22; page 3567, line 19; page 3954, line 11,
page 3996, line 16; page 4956, line 7; page 6269, line 9; and
page 7082, line 9. The change of names requested at page
3489, line 22, at page 6090, line 1, and at page 6192, line 9,
is not granted, based on the evidence that is before me on
the matter. The identity of the persons involved in this
requested change does not appear to be significant to a
decision on the issues herein. The word "range" at page
3139, line 22, is hereby changed to "rang." The motion to
change the word "predicate" at page 6299, line 15 to
"pregnant" is denied.
The motion of the Charging Party to change the
transcript is granted as to the following contested items:
page 479, line 6; page 479, line 7 The motion is denied as
to the following contested items: page 26, line 3; page 81,
line 18; page 138, line 21; page 223, line 25; page 308, line
1; page 745, lines 13 and 16; page 746, lines 3, 5, 11, and
12. The word "so" at page 223, line 24, is hereby changed
to "also."
On September 14, 1971, a point motion of the Charging
Party and the General Counsel to amend the transcript
herein was received, and on September 24, 1971, Respon-
dent filed a motion in opposition thereto, contending that
the subject of the point motion was an exchange between
witnesses and attorneys that occurred off the record. The
joint motion is granted; the Charging Party's request to
continue on the record was granted.
Upon the entire record and my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Farah Manufacturing Company, Inc., Respondent here-
in, is a Texas corporation with principal office and place
of business in El Paso, Texas, where it is engaged in the
business of manufacturing and distributing men's and
boys' pants. It has three plants in El Paso, known as the
Gateway plant, the Third Street plant, and the Paisano
plant. During the year 1970, Respondent sold and shipped
I Stewart-Warner Corp, 94 NLRB 607, Aircraft, 110 NLRB 2162,
Western Wear, 87 NLRB 1363
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
goods and materials valued in excess of $50,000 directly
from its plants in El Paso, Texas, to customers located
outside the State of Texas. During the same period of time,
Respondent purchased and had delivered to its places of
business in El Paso, Texas, goods and materials valued in
excess of $50,000 which were transported directly from
places located outside the State of Texas.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Amalgamated Clothing Workers of America, El
Paso District Joint Board, AFL-CIO, herein referred to as
the Union or the Charging Party, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Respondent discharged employees, laid
off employees, or reassigned employees because of their
union activities or for the reasons assigned by the
Respondent.
2. Whether Respondent interfered with, restrained, or
coerced employees in the exercise of the rights guaranteed
in Section 7 by engaging in surveillance of employees,
interrogating employees, issuing more restrictive working
rules, instructing employees to cease and desist from union
activities, and isolating employees.
B. Introductory Statement
Respondent has plants in three locations in El Paso and
plants in other cities in Texas and New Mexico. Only the
El Paso facilities-the Gateway plant, the Third Street
plant, and the Paisano plant-are involved in this case.
There are approximately 6,800 employees employed by
Respondent in El Paso, with the Gateway plant being the
largest of its facilities there and the location of most of the
events related herein. The manufacturing operations at the
Gateway plant are divided into three principal functional
areas: phase I, shipping; phase II, sewing; and phase III,
cutting The main building is over 2,000 feet in length and
between 400 and 475 feet in width. The shipping depart-
ment is at one end and occupies an area that is 800 feet by
400 feet. Respondent's administrative offices are also in
this area. Separating this area from the rest of the plant is a
central corridor or hallway running through the building,
which hallway is approximately 400 feet in length and 25 to
35 feet in width. Not far from the hallway is a clinic and a
large cafeteria.
Union organizational activities by Respondent's employ-
ees started in September 1969. These activities were
instigated by employee Adan Gonzales who worked as an
order puller in the shipping department (phase I), Gateway
plant, and the organizational activities commenced in that
department. The shipping department consists of approxi-
mately 315 to 320 employees at the time of hearing and in
the fall of 1969 it had approximately 275 to 300 employees.
In this department, there are 201 units of shelves on which
finished pants are stored according to style and type, color,
and sizes. In the fall of 1969, there were 190 units of
shelves. Each of these units is 88 feet long, 4 feet, 7 inches
wide, and 21 feet high, and contains seven different shelves
which are spaced 3 feet apart. The walkways between
shelves are 3 feet, 10 inches wide.
When finished pants are brought to the shipping
department, they are separated by lot number, color, waist
size, and length. This is done by employees known as
separators. The pants are then placed on the shelves. An
order puller takes the pants from the shelves to fill orders
that have been assigned to him; he places them on carts
and takes them to another area of the shipping department
for packing. Packers prepare the order for shipment;
checkers check the orders. Orders are then packed in
boxes, weighed, and loaded on trucks for shipment.
Because of the variety of styles, fabrics, colors, waist sizes,
and length sizes, there are approximately 50,000 different
orders that can be placed by a customer. Errors by order
puller-such as wrong shade or color, wrong waist size, or
wrong length-occur frequently; and, in fact, Respondent
now employs two "runners" to assist packers by going to
the shelves to correct errors that involve only a few pairs of
pants.
C. Unfair Labor Practices Found in Prior Case
Following a union meeting on October 15, 1969, Jose
Serna, one of the supervisors in charge of the shipping
department, interrogated employees Adan Gonzales and
Luis Alvarez as to their problems and as to what was
bothering them in an effort to induce them to open up to
him with information regarding their union organizational
activities and interests. On October 21, 1969, Respondent
discharged Adan Gonzales because of his union activities.
On October 22, 1969, the charge alleging this conduct as
unfair labor practices was filed; hearing was held in
January 1970; and the Board's Order was issued on
December 31, 1970.2 Also on October 22, 1969, the Union
sent Respondent a telegram naming 10 employees as
members of its organizing committee. On October 23, the
Union sent Respondent another telegram adding the
names of 28 employees to its organizing committee. Similar
telegrams were sent on October 29, November 26,
December 12, 1969, and January 8 and May 7, 1970, giving
names of 136 employees in all as members of the Union
and its organizing committee.
The complaints herein allege as unfair labor practices the
discharges of 32 employees and one suspension that
occurred from November 6, 1969, to November 8, 1970.
On October 22, 1969, the day of the Union's first
telegram, members of the organizing committee started
soliciting openly on behalf of the Union, they did this
throughout the Gateway plant for a few days, until it was
stopped by Respondent in all work areas. It was permitted
to continue in nonwork areas, described as being the
central hallway in building 1, a corridor in building 3, the
cafeterias, and the parking lots.
The Board found in the prior case that "Respondent
2 Farah Manufacturing Co, 187 NLRB 601, enfd 450 F 2d 942 (C A 5)
FARAH MANUFACTURING CO. 671
unduly restricted the organizational rights of employees to
engage in oral union solicitation by maintaining rules
which prohibited all solicitation in any working area of the
plant during nonworking time and which further denied
employees access to any work areas other than their own
during rest periods."
Joe Chemali , Jr., vice president and a director of
Respondent , testified in the instant case that these rules are
still in effect and that employees are not to distribute union
authorization cards in work areas at any time, but may do
so in the "cafeteria , main hallway , parking lot" during
nonwork time.
D. Enforcement of Respondent's Broad No-
Sokcitation Rule
The rules against solicitation in working areas and in
other departments on nonwork time , which , as noted in
paragraph C, the Board found to have been illegally
promulgated , have been enforced from time to time during
the period of union organizational activities . Some inci-
dents of enforcement are as follows:
In the latter part of October 1969, President Farah came
to where employee Guillermo Chavez was working, looked
at his badge, and then went to the bulletin board where the
Union 's telegram naming Chavez as a member of the
organizing committee was posted . That afternoon Farah,
with Supervisors Norman Ekery and Henry Soza, the two
top supervisors in the shipping room , came to Chavez and
told him that he was not to go into the cutting room.
In early March 1970 , Joe Chemali , in the presence of
Erich Goeldner, supervisor of the cutting room, told
employee Johnny Rodriquez that he was not to distribute
union buttons or authorization cards in a work area.
I do not credit the testimony of Rodriquez that Chemali
also told him he could not possess union buttons or cards
"inside the walls of Farah ." Cards and buttons, with the
knowledge and permission of Respondent , are possessed
and distributed by employees in the heretofore mentioned
designated nonwork areas.
In April or May 1970, Erich Goeldner, in the presence of
Supervisor Victor Chemali (brother of Vice President Joe
Chemali), told Rodriquez that he could not hand out union
cards or anything like that in a working area.
On April 23, 1970, employee Ruben Lucero was
reprimanded by Vice President Chemali and Department
Supervisor Ernest Goeldner for distributing union buttons
in a work area. Lucero told them that he thought he could
do this during the breaks and at lunch. As noted in his
production ledger by Goeldner, "He was again told he
could not engage in this type of union activities in a
working area at any time." I equate union buttons with
union cards and not union literature . Although an
employer may not prohibit the distribution of union cards
and union buttons in a working area on nonwork time, the
distribution of union literature in a work area may be
prohibited at any time to avoid the possibility of cluttering
the work area.3
On May 4, 1970, Edwardo Munoz, a packer, was seen
attempting to distribute union cards during the lunch
period at the packing tables and was told by Joe Chemali
that "he could not distribute in working areas at any time."
An entry about this incident and reprimand was made on
the production ledger of Munoz by Supervisor Norman
Ekery.
In May 1970, employee Elvia Corral distributed a union
authorization card and a union pamphlet to a fellow
employee at the Paisano plant in a working area during a
break period. She was told by Plant Supervisor John Isaac
not to distribute those things "in the working area during
working time , or in the lines." She and a fellow employee
then went to an area where there were no sewing machines
to pass out the union cards and literature . None of the
employees passing by took any of the material being
offered , and Corral and the other employee went into a
restroom . When they came out, they were again ap-
proached by Isaac and asked if they understood what he
meant by working areas. Corral replied that she under-
stood it to mean "where the machines are." Isaac stated,
"No, you can do it outside or you can do it in the cafeteria.
You can talk all you want to, but you cannot do it in the
working areas ." The next day, Corral spoke to Isaac again
about the matter and told him the Union had given them a
pamphlet which stated they had the right to distribute
union cards in a working area. He told her that she could
not do it. One of her coworkers asked him about the
restrooms , and he replied that he did not know anything
about that. A short time later , Isaac asked Victor Chemali
if it was permissible to pass out union cards or literature in
the restrooms . Victor Chemali referred him to Joe Chemali.
Isaac then asked Joe Chemali about it . Also, employee
Enrique Alvarez asked Joe Chemali about it . Chemali told
Alvarez that he was not stopping him from distributing in
the restroom , but all that he could tell him was that the
restroom was in a working area. He further told Alvarez
that he could not be in the restroom and that he was not
going to stop him until he found out from his counsel if he
could stop him and then he would . Chemali testified that
his counsel told him to dust leave it alone , and that
therefore he never did tell anyone yes or no on the matter.
One or two restrooms are in the hallway and not in a
working area ; the others are, however.
Although neither Joe Chemali nor Isaac explicitly told
employees that they could not distribute union cards in
restrooms , from Chemali's statement to Enrique Alvarez
that the restroom was in a working area, and Isaac's
statement to Corral immediately after she came out of a
restroom that she could distribute outside or in the
cafeteria , coupled with the fact that Respondent has
promulgated and enforced a rule that employees are not to
distribute union cards in working areas the meaning is
quite clear that union authorization cards are not to be
distributed in those restrooms that are located in working
areas. I note that Corral also had union literature to
distribute ; as to the distribution of union literature in
working areas , this Respondent could prohibit 4
Respondent raises the point that under the circum-
stances in this case of general and widespread and daily
3 Stoddard-Quirk Mfg Co, 138 NLRB 615
4 Stoddard-Quirk Manufacturing Co, 138 NLRB 615
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution of union cards, as did occur in the central
corridor, this type of distribution was tantamount to the
distribution of literature and that it could be prohibited in
working areas on the same basis that literature could be
prohibited-to avoid cluttering the area with discarded
paper; and the Board in footnote 3 in its prior decision in
Farah Manufacturing Company indicated that wholesale
distribution of union authorization cards was distinguisha-
ble from the normal type of card distnbution which
contemplates signature upon receipt and return of card to
solicitor.
Respondent , however , did not make any distinction in its
broad no-solicitation rule as to types of distribution; all
solicitation and distnbution of union cards in working
areas is prohibited. I find that Respondent by repeatedly
enforcing its broad no-solicitation rule covering working
areas and restrooms located within working areas has
interfered with , restrained , and coerced employees in
violation of Section 8(a)(1) of the Act
In April or May 1970, Johnny Rodriquez, after getting a
drink of water during working time, motioned and hollered
to employee Santiago Guerra, an opponent of the Union.
Supervisor Ben Donathan inquired of Rodriquez as to
what he wanted and Rodriquez replied that it was
personal. Donathan told him to take care of his personal
business on his own time. I do not credit Rodriquez's
version that he was told to keep his union activity "outside
the plant." Rodriquez's version is inconsistent with the fact
that union activity was permitted inside the plant in certain
areas and at certain times; it was not permitted , however,
inside working areas.
E. Changes Made in the Shipping Department
Procedural and other changes have been made from time
to time by Respondent in the shipping department and
throughout its plant as operations have expanded and as
new and improved methods are thought of. This is normal
and expected in the operation of any business. The General
Counsel contends, however, that some of the changes that
were made during the Union's organizational drive were
instituted to thwart the union activities of employees.
Starting in the first of November 1969, Vice President
Chemali began spending much more time in the shipping
department than he had done theretofore. Previously, he
was in this department infrequently. In November 1969, he
started spending 3 and 4 hours a day there, and he
continued to do this for a period of 4 or 5 months.
Thereafter, he averaged about 1 hour per day in the
shipping department. He testified that the reason he began
doing this was because of the conditions he discovered to
exist in this department which came to his attention during
the annual inventory conducted during the last several
days of October 1969. He testified that, although errors
had been found in prior years in the shelving and location
of pants, in 1969 he found the situation to be worse. He
cites as illustrations of this that three stacks of pants were
found that had been slashed with a knife; one complete
shelf was stacked with the wrong lot number, three missing
5 The employee was Emilio Casillas who was reprimanded for laughing
and joking and disturbing employees by Joe Acuna, an employee who was
serving as a group captain of an adjacent group of counters In their
order sheets were found placed between layers of pants;
Chemali had to talk to at least three employees about their
conduct , one of whom had cursed an employee who was
serving as group captain .5 Two employees were sent home
because they made one error after another . One or two
employees told him they had been out all night and
appeared to have hangovers and were sent home . Chemali
testified that "all of this led me to believe that I needed to
do more work in shipping as to training and so forth."
Also, at the same time President Farah started coming
into the shipping department on a daily basis whereas prior
to November 1969, his visits there had been very
infrequent.
Some of the changes instituted in November 1969 and
thereafter are discussed as follows:
1. Two supervisors added to the shipping
department ; close observation of employees;
prohibition of talking
The shipping department has an office on a raised
platform located in the vicinity of the packing tables. Prior
to November 1969, there were seven supervisors in this
department: Norman Ekery, Joe Serna, Henry Soza,
Arturo Aguirre, Richard Ochoa, Roberto Mata, and
Ernesto Moreno. Ekery and Serna had overall supervision.
Mata and Moreno worked with the packers. Aguirre
worked with the truck loaders on the dock. Order pullers
were supervised by Ochoa, Aguirre, and Soza, but no
supervisor was stationed in the shelving area itself . Miguel
Loya, a leadman , worked in this area , he became a
supervisor in July 1970. In January 1970, Serna was
transferred out of the shipping department and Soza took
his place as one of the overall supervisors. In April 1970,
Ochoa was terminated
In the first of November 1969, two supervisors were
added to this department: Abed Esman, who transferred
from the cutting department , and Henry Meili, who was
training to be a supervisor and worked in different areas of
Respondent 's operations. Meili became a supervisor on the
first of December 1969.
Vice President Chemali gave as the reasons for this
increase in supervisors the fact that there were many
shelves and no supervisor assigned to work in the area of
the shelves ; that there was the temptation to play around
and whistle and holler. He testified , "There was no telling
what was going on in those shelves. I dust couldn ' t imagine
myself what was going on in the shelves. They are just so
big They are over 15 feet high and 5 feet wide and there
are 200 of them and no supervision. A new employee
would get in there and if he happened to get with another
employee who was teaching him not to take an interest in
his work, this type of thing, I just didn't like this." There
were approximately 75 to 80 order pullers and approxi-
mately 27 employees who separated the finished pants
according to lot number , color, and sizes and placed them
on the shelves.
Esman and Meili kept close tabs on the employees
working in the shelving area. They walked around among
exchange , Casillas called him, in Spanish, words translated into English as
either son -of-a-bitch or brown-noser The subsequent discharge of Casillas
is covered in par H(16)
FARAH MANUFACTURING CO. 673
the shelves constantly to check on discipline, to see if the
employees were wasting time, engaging in excessive talking
or otherwise not being attentive to their duties , and to see if
the employees were adhering to plant and department
rules, one of which was that order pullers were not to
correct their own errors until it had been called to the
attention of a supervisor or checker . This was a new rule
put into effect in November 1969. This rule is discussed in
the next numbered paragraph (Par. E , 2). Meili on several
occasions followed and checked on employees in this
regard. On some occasions, he found that the errors had
been initialed by supervisors and on other occasions that
they had not been. He also followed and stopped some
packers to ascertain if a supervisor had initialed the
packing slip on which they were working. Esman talked to
employees about bunching up, excessive talking, whistling,
and banging of carts
This close and constant supervision was very noticeable
to the pullers and the stockers working in the shelving area.
Guillermo Chavez testified that after October 1969, he
would observe Meili standing near him while he was
working in the shelves and again when he would move to
another part of the shelves. He would see Meili just
standing there looking at him, this went on for some time.
Meili testified that on one occasion he followed Chavez to
the west end of the shipping area; that he had seen Chavez
taking some pants from a truck , and that "I just wanted to
find out what he was doing up there. So I followed him."
He asked Chavez what the problem was and what he was
looking for. Chavez then explained what he was doing and
Meili left.
On one occasion when Chavez was being reprimanded
by Chemali for his mistakes, he complained to Chemali
that Meili had been following him and that for this reason
he could not concentrate on his work. On another occasion
when Chemali was speaking to Chavez about his "pressur-
ing" employees to join the Union, he told Chavez not to
talk to employees about anything other than business
during working time.
On one occasion in about March 1970, Esman observed
Ernesto Alfaro stopping and speaking with employees that
he met, about six in number, as he proceeded through the
shelving area and on into the restroom . Esman followed
behind Alfaro and, when he went into the restroom, he
called Meili . The supervisors have been instructed to have
another supervisor present when reprimanding an employ-
ee. When Alfaro came out of the restroom, Esman told him
that he had noticed him doing a lot of excessive talking
with other employees and that this was not necessary
Alfaro told him that he was just greeting them . He became
angry. He was told that he could greet other employees but
was not to speak to anyone about anything except
business He testified that at that time he did not know
who Meili and Esman were.
The next day, Chemali talked to Alfaro and told him that
Meili and Esman were supervisors in the shipping
department and that they were there to help him and that
he should cooperate with them He agreed to do so.
Chemali told Alfaro not to bother anyone and to see if he
could do a lot better in his work.
In the first part of 1970, Esman observed Jose Villagran
walking through the shelves and it did not appear to
Esman that Villagran was going to any particular shelf.
Esman followed him as he walked past 25 or 30 shelves.
Villagran was seeking employee George Lopez about an
order he had that was similar to that of Lopez . When he
located Lopez , he asked him about the order , and at that
moment Esman approached them and asked what they
were doing. Villagran said he was trying to get some
information from Lopez . Esman then looked at his order
and told him that if he needed any help in pulling an order
that he should ask Supervisor Meili ; that he was not to
discuss matters with other employees during working time
as it would take time away from the work of other
employees Esman called Meili.
On one occasion, employee Guadalupe Pineda stopped
to ask another employee about a type of pants. Meili came
in between them and asked Pineda if he had a problem.
Pineda said that he was just talking about the stock. Meili
said, "If you want to ask anything, ask me."
On another occasion on January 17, 1970, Esman
observed Villagran in what he considered to be a violation
of a company rule Villagran had a newspaper on his
clipboard on which his orders were kept. Esman called
Henry Soza , one of the supervisors in charge of the
shipping department, and asked him about this point. Soza
told him that there should not be anything on the
clipboard except orders . Esman then called Chemali and
told him that Villagran had the newspaper on his
clipboard . Esman , Chemali, and Soza went to Villagran
and he was reprimanded for this and the incident was
recorded on his production record . He was told to leave his
newspaper in his car or coat.
Other employees , including Jesus Espinoza , Ernesto
Marrufo, Mario Porras, Isaac Soto, and Manuel Bonilla
testified about reprimands for talking during working
hours, and that such reprimands were not given for this
prior to the advent of the Union . Respondent acknowl-
edges that starting in November 1969, employees were
reprimanded for "excessive talking" and that this had not
occurred prior to November , but contends that this was
because of the lack of adequate supervision in the shelves
prior to November.
In February or March 1970, Meili began training some
new order pullers. He instructed them to call him about
any problems they might have and not to ask another
employee about the matter because he might mislead them.
On one occasion in December 1969, while Meili was
walking about in the shelves , he observed Manuel Pedroza
going to a packing table and not taking a truck of pants.
He followed Pedroza to the table and asked what was the
problem . The packer told him that Pedroza had forgotten a
color . Meili asked the packer if a supervisor had been
called and was informed that he had not been. Meili then
called Supervisor Aguirre.
On another occasion , Meili followed Guadalupe Pineda
to a packer 's table. Pineda had a stack of pants over his
arm When Meili got there, Pineda showed him that a
supervisor had initialed the packing slip that he was
working on . Meili testified that he stopped some packers
who were in the shelving area to see if a supervisor had
authorized their being there. This was in enforcement of
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the new rule previously mentioned that pullers were not to
correct errors until it was called to the attention of a
supervisor , also packers were not to correct an order of a
puller until and unless it had been called to the attention of
a supervisor.
2. New work rules; recording of errors
As referred to in paragraph E(1), a change that Chemali
made in the shipping department in November 1969 was
that all errors made by order pullers and by packers were
to be called to the attention of a supervisor so that it could
be discussed with the employee involved and notations
regarding it could be entered on the production records of
employees . Prior to this, a packer could and usually would
call a puller directly to correct any error in his order; the
new procedure was that the packer must first call a checker
or supervisor who would then call the puller about the
error. Previous to this new procedure , it was primarily only
large errors or errors that customers caught that the
supervisors gave any attention to. Chemali testified that he
wanted a method by which he could find out who were
making errors , why the errors were being made, and a
system whereby credit could be given to employees who
made few errors. Also Chemali told the supervisors that,
when an employee made an error , he wanted to talk to the
employee himself . He was called in and talked to each
employee on all errors for a period of at least 3 months
from the time this procedure was instituted Errors that
were found to be mistakes of the employee were recorded
in his production record.
In February 1970, Respondent started using two employ-
ees designated as runners to correct minor errors in an
order found by packers . Half of the packers are under the
supervision of Roberto Mata and the other half under
Ernesto Moreno. One runner is assigned to each group.
The errors corrected in this way usually involves only I or
2 or 3 pairs of pants , but could be as many as 10,
depending on the order , as where the order was a large one
involving many sizes and the puller made a mistake of
pulling one size for another on one item.
In January 1970, President Farah invoked a rule that if a
packer packed a single order without it being checked first
by a checker , he was to be discharged . This rule continued
in effect until the latter part of April 1970. Pursuant to it,
eight employees were terminated during this period; one,
Manuel Montoya, is named in the complaint as a
discriminatee . His discharge is discussed in paragraph H, 3.
The rule was then revoked as being too harsh.
3. Employees required to wear identifiable
name plates
Prior to January 1970, all employees in the Gateway
plant, except for the shop employees , wore name plates
that were black and white , and, in fact , all employees in
Respondent 's plants in El Paso wore name plates that were
black and white . Name plates of shop employees were
green and white.
6 As set forth in pars C and D, the broad no-solicitation rule of
Respondent precluding solicitation in other parts of the plant on nonwork
time constitutes an unfair labor practice
In January 1970, some female employees in the pressing
area complained that some male employees were bothering
them and were "evidently " using some bad language Some
supervisors went to some of the male employees in the
pressing area and talked to them about this incident; they
denied that they were the ones who had been bothering the
girls and reported that it had been employees from the
shipping department.
Respondent has a rule that employees are not to go into
other departments than their own during work or nonwork
time unless it is connected with their work 6 The only way
the girls had identified the boys "bothering" them was by
the color of their name plates, which were black and white.
Respondent then instituted a change in color of name
plates so that employees in the shipping and other
departments could be identified by the color of their name
plates Those in the shipping department were given blue
and white name plates and those in the cutting department
were given brown and white name plates . Those in sewing
continued to use black and white and the employees in the
shop continued to use green and white . Summer employees
were given orange and white name plates . Employees in
Respondent ' s other plants in El Paso continue to wear
black and white name plates.
4. The incident of December 12
On December 12, 1969 , Luis Alvarez called a meeting of
a group of employees in the shipping department to be held
at a designated place in the shipping room during the
afternoon break period . The meeting was for the purpose
of planning a party. Shortly after the group convened,
Guillermo Chavez saw Supervisor Serna use the telephone
and, shortly thereafter , President Farah , Vice President
Chemali , and Supervisors Serna, Soza, and Ekery ap-
proached the group of employees . There were about 16
employees at the meeting , and the supervisors started
writing down their names . The employees continued with
their meeting . The bell rang for the end of the break period
and the employees started to return to their work stations
Farah asked them to wait a moment. As soon as all names
were taken , they were told they could leave The only
comments made to them by any of the supervisors were as
to their name plates and about their leaving the meeting
Farah told Alvarez that he could go as he knew him.
Manuel Montoya was asked where his name plate was, as
he did not have one on . He explained that he left it at
home, but the guard had permitted him to enter the plant
Chemali testified that Respondent has a policy or rule
that employees may not " throw a party or have a shower or
something" in a work area during lunch or break periods.
F. Conclusions as to Paragraph E
It has already been determined by the Board that union
instigator Adan Gonzales was discriminatorily discharged
on October 21, 1969, and that shortly after overt solicita-
tion for the Union began on October 22, 1969, Respondent
unlawfully restricted union solicitation and activities by
employees . It prohibited union solicitation in any working
area of the plant during nonwork time and prohibited
FARAH MANUFACTURING CO. 675
employees from going into other work areas to solicit
during nonwork time. These prohibitions have continued
in effect and have been enforced and called to the
attention of employees.
As pointed out in paragraph E, Respondent made other
significant changes in its operations and procedures shortly
after union activities became known and which also was
shortly after its annual inventory taken during the last few
days of October 1969. The issue is whether or not certain of
these changes were made (1) because of and to thwart
union activities, or (2) to improve and correct operational
deficiencies found to exist when the inventory was
conducted. Thus, which was the motivation for or
proximate cause of the new rules and procedural changes?
Or, can it be determined that the changes complained of,
or any of them, would likely have been instituted
irrespective of any union activities of employees?
Taking first the change in color of name tags. It came
into being following an incident where some unidentified
employees, later reported to have been from the shipping
department, were visiting and "bothering" some female
employees in another department during nonwork time.
There is no evidence as to what these employees were
doing in the other department other than "whispering at
them and evidently using some bad language"; but the
change in the name tag colors facilitates the enforcement
of and exists as a corollary to Respondent's illegal rule that
employees may not go into other work areas during their
nonwork periods to solicit on behalf of the Union. Used
for this purpose, it constitutes interference, restraint, and
coercion within the meaning of Section 8(a)(1) of the Act
In the first of November 1969, Respondent took
measures to tighten up on employees in the shipping
department. Two additional supervisors were brought in
who primarily roamed about the working area of the
shelves checking on employee performance and conduct.
All errors made by order pullers and packers had to be
called to the attention of a supervisor and the employees
talked to about the error Also, Vice President Chemali
participated in the confrontation with employees about
their errors. The practice of pullers and packers correcting
their own errors without notification to supervision was
discontinued. Employees were told not to talk with other
employees while they were at work, except as to greetings,
and to discuss their work or problems only with their
supervisors. Vice President Chemali, who, previous to
November 1969, had been in the shipping department only
infrequently, started spending 3 or 4 hours a day there and
continued to do this for 4 or 5 months. President Farah
started coming into the shipping department on a daily
basis. During the inventory in the latter part of October
1969, President Farah told employee Manuel Pedroza, an
order puller, that someone was telling him lies, that if he
wanted to let him go he could do so and no one could
protect him.7
On December 12, 1969, employee Luis Alvarez called a
group of about 16 employees to meet with him during the
afternoon rest period in the shipping department to discuss
plans for a party While it was in process, they were
converged upon by President Farah and Vice President
Chemali and three other supervisors, and Farah required
the employees to remain there after the bell had rung so
that the supervisor could complete a recording of their
names.
In January 1970, President Farah took additional
measures to tighten up on employees by requiring that a
packer be discharged for a single error of packing an order
without it being checked. At the time the rule was put into
effect, Farah stated to Supervisor Soza and Serna that he
had been getting too many complaints from customers
about orders going out wrong. Farah did not testify and
there is no evidence regarding the customer complaints.
The rule was abandoned in the latter part of April 1970 as
being too harsh, after eight employees were terminated
because of it.
In view of the fact that Respondent had recently
discriminatorily discharged the instigator of the Union,
had illegally interrogated him and employee Luis Alvarez
regarding union activities, and had illegally restricted
union solicitation in the plant, and in view of the fact that
the changes and restrictions made in the shipping depart-
ment, as set forth above, were of a nature that restricted
and restrained employees in their union activities, and in
view of the timing of these restrictions to coincide with the
advent of the Union's organizational drive and Respon-
dent's unfair labor practices mentioned above, I find from
a preponderance of the evidence that Respondent's
motivation for these changes was the union activities of the
employees in the shipping department.
The augmentation of the supervisory staff in the shipping
department to provide Respondent with almost constant
observation of employees while at work and the unnatural-
ly close surveillance of employees by Supervisors Meili and
Esman is conduct calculated to put employees in fear of
their jobs. This is in the same vein as the confrontation of
employees by a group of supervisors including Vice
President Chemali on each error committed. Chemali and
Soza both testified that the work of an order puller is the
hardest job in the shipping department and that errors are
commonplace; in fact, later, two employees were assigned
to be runners to correct minor errors uncovered by packers
and checkers. Errors by order pullers were certainly not
something learned by Chemali during the inventory.
I find that the close surveillance of employees by Meili
and Esman, the sudden and continuous presence of Vice
President Chemali in the shipping department for a total of
3 or 4 hours a day for a period of 3 or 4 months, the close
surveillance of errors of order pullers, packers, stockers,
separators and other employees, and the change in work
rules and procedures to bring this close surveillance about
and the change in the work rules in January 1970 to the
effect that packers who packed a single order without it
being checked would be discharged was done to interfere
with, restrain, and coerce employees in the exercise of their
rights under Section 7 of the Act. I find the same as to the
surveillance of the meeting of employees on December 12,
1969, and as to the undue restriction on talking during
working time prohibiting all personal exchanges except
T This incident is covered in para H, I. Manuel Pedroza Discharged
December 16, 1969
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
greetings and requiring employees to ask questions of
supervisors only.8
There is considerable evidence as to a variety of changes
in work practices in the shipping department, but, as to
changes made other than those discussed herein, I find that
they either fall into the category of changes that would
normally be made irrespective of union activities or of
changes of dubious relationship to the union activities of
employees.9
The contention is made and there is testimony from
Gilbert Minjarez to the effect that Respondent restrained
and coerced union adherents by requiring them to move to
the north sector of the central hallway to deliver speeches.
I find that Respondent moved all speechmaking, both by
union adherents and by union opponents, to the north
sector of the central hallway. This was done so that there
would be less disturbance to the office workers in
Respondent's administrative office I find no unfair labor
practice in this regard.
It is also contended that Respondent cautioned employ-
ee Xavier Villanueva not to pass by the work station of
Luis Alvarez and that this constituted an isolation of a
union adherent and an illegal interference. On one
occasion, Villanueva had occasion to go to the administra-
tive offices of Respondent on business and in so doing he
went by way of "store returns," where Luis Alvarez
worked. Supervisor Serna asked him if he had any business
in store returns. Villanueva answered that he had no work
in that area, that he went that way to greet Luis Alvarez.
Serna told him that he should take a direct route when he
needs to go to the administrative offices and not to pass
through store returns. I find this incident to be of minor
consequence and that it does not constitute a sufficient
basis for a finding of illegal interference, restraint, or
coercion.
It is also contended that employee Ruben Lucero, being
told to call his supervisor or a pusher when a bundle or
portion thereof is missing, and Johnny Rodriquez, being
placed in an obscure work booth, were attempts to isolate
these union adherents. The instructions given to Lucero
was given to all bundle boys; the booth that Rodriquez was
placed in was a training booth and happened before he
became active on behalf of the Union and, further, he was
moved from that booth after a short time to a booth that
was closer to his materials and this was done at his request.
I find that the evidence is insufficient to find an illegal
isolation of union adherents.
G. Interrogations by Supervisors Aguirre
and Moreno
In January 1970, many of the union employees started
wearing union buttons. On one occasion, Supervisor
Aguirre looked at the button worn by Ernesto Marrufo and
asked Marrufo the reasons the employees were trying to
get the Union in. Marrufo replied that the employees
8 Tom Wood Pontiac, Inc, 179 NLRB 581, enfd 447 F 2d 383 (C A 7),
Retail Store Employees Union, Local 444, 161 NLRB 1358, Pines ofAmerica,
178 NLRB 376, Ridge Growers, Inc v NLRB, 211 F 2d 752 (C A 5)
9 Examples of changes that fall in this category are change from the
"buddy" system to a central distribution system, the separation and
specialization of the jobs of second separators and stockers and the job of
wanted to better themselves. Aguirre told Marrufo in
Spanish that "those of the Union are an easy thing to
Farah." (Son lonches los de la Union para Farah.) I do not
find that this incident constituted illegal interrogation or a
threat, although Marrufo testified that Aguirre' s statement
to him meant that Farah was going to get rid of union
adherents.
In February 1970, employee Gregono Gutierrez was
talking with employee Ernesto Alfaro. Shortly after this,
Supervisor Aguirre approached Gutierrez and asked what
Alfaro had said to him. Gutierrez replied that Alfaro told
him something about the orders. Aguirre asked if Gutierrez
had signed a union card. Gutierrez replied that he had not.
Aguirre then told him "the Union bit is no good, don't
sign ." I find that Aguirre's interrogation of Gutierrez about
his union affiliation constituted interference, restraint, and
and coercion within the meaning of Section 8(a)(1) of the
Act. His statement about not joining the Union, independ-
ent of the interrogation, however, is a statement of position
and recommendation and not coercive.
In March 1970, on the first day of employment of
Richard Valenzuela, Supervisor Aguirre explained to him
the company rules and procedures and facilities . Valenzue-
la told him that he knew the Union was trying to organize
Farah and he asked if it was okay to sign a card. Aguirre
answered, "We expect you not to join or support it."
Valenzuela and Aguirre disagreed in their testimony as to
who brought the subject up, but Aguirre testified that he
did tell Valenzuela not to sign a union card, and I accept
his version of the conversation. Since Aguirre's statement
came as an answer to an employee's inquiry and is not
accompanied by any threat or promise, and is a statement
of Respondent's preference or position, I find that it does
not constitute a violation of the Act.10
Valenzuela also testified that in the last part of June
1970, during working hours, he was picking up some union
buttons at his packing table and was told by Supervisors
Moreno and Soza that there would be no distribution of
union buttons during working hours and that he should
have his mind on his work and not wasting time . I find no
violation of the Act in this incident.
H Discharges in the Shipping Department Related
to Work Performance and Work Rules
The complaints allege that Respondent discrimmatorily
discharged 31 employees and suspended one at the
Gateway plant during the period from November 6, 1969,
through July 17, 1970, and discharged one employee at the
Paisano plant on October 8, 1970. Twenty-five of these
were employed in the shipping department at the Gateway
plant. Generally the reasons assigned for the discharges fall
into five categories: (1) work errors, (2) low production, (3)
failure to comply with company rules or instructions of
supervisors, (4) misconduct, and (5) absenteeism or
lateness. Discharges related to absenteeism or lateness and
weighing and stenciling of cartons for shipment, the practice of having
supervisors train new employees rather than it being done by other
employees, the requirement that order pullers sign or initial their orders
10 McQuay-Norris Mfg Co, 157 NLRB 1661, Henry I Siegel Co, 143
NLRB 386, enfd 328 F 2d 25 (C A 2)
FARAH MANUFACTURING CO. 677
misconduct are covered in sections J and K of this
Decision.
In 1969, a total of 64 employees were discharged from
the shipping department with reasons assigned grouped in
the following categories:
Number Discharged and Reasons Assigned
1-late: not punctual
14-absenteeism
8-absent after holiday or weekend
2-fighting
2-gambling on the job
1-weak injured knee; may be reinjured
1-smelled heavily of alcohol; absent often
3-negative attitude-does not like what he is doing,
will not take care of equipment, very slow worker
8-would not follow clinic procedures
3-no aptitude for this type of work
6-would not or unable to follow instructions, and/or
poor worker or poor production, and/or does not like
what he is doing.
1-mistakes; had been cautioned several times about
his mistakes: Manuel Pedroza, a discnminatee herein,
December 16, 1969.
14-production problems, with dates, names and
specific reasons as follows: (In this and following lists,
names of alleged discrimmatees are italicized.)
Dates, Names, Reasons Assigned
February 14-Eddie Estorga-Very poor and slow
worker.
February 28-Jesus M. Bnto-Very slow worker.
February 28-Edward E. Jurado-Very slow worker
April 24-Francisco Lopez-Very slow worker.
April 25-Frank J. Ramos-Unable to do his work.
April 25-Ignacio Moreno-Unable to do his work.
May 16-Nicolas C. Niglio-Very slow worker; no
aptitude for this type of work.
May 20-Manuel Avila-Very slow worker.
August 25-Jose R. Pedroza-Slow worker.
October 7-Rogelio M. Guillen-No aptitude for this
kind of work.
October 21-Adan Gonzales-(Discrimmatee in prior
case.)
November 3-Robert J. Santos-Was told about too
many mistakes during inventory; stated he was sick;
was told to go see a doctor and bring release to work;
did not show up Sunday (for inventory); showed up
Monday; didn' t see a doctor, says he is still sick;
doesn't seem interested in work; attitude indifferent.
November 6-Jose Velarde-Refused to buy a new pair
of clippers. (discriminatee herein under another head-
ing)
November 14-Miguel G. Ramirez-Production very
low; has not improved.
In 1970, 52 employees were terminated from the shipping
department as follows:
Number Discharged and Reasons Assigned
2-cheating or falsifying records
1-stealing
3-insubordination
2-absent day before or after holiday: Friday, Satur-
day, or Monday
1-lies or stories
1-negative attitude
1-fighting
2-absenteeism
13-refusal or unable to follow instruction, with dates,
names and reason assigned as follows:
Dates, Names, and Reasons Assigned
1-9-Manuel Montoya-Packed order without being
checked by checker. Too many mistakes, work below
average.
1-9-Manuel Escajeda-Packed order without being
checked by checker. Work only fair.
2-10-Pantaleon Ceniceros-Packed order without
being checked.
2-14-Lorenzo Morales-Did not follow instructions.
Packed an order without being checked by a supervi-
sor.
2-16-Alfredo C. Estrada-Does not follow instruc-
tions. Packed an order without being checked.
3-30-Abraham Saenz-Packed an order without
being checked by a checker.
4 6-William J. Quinn-Packed an order without
being checked by a checker.
4-16-Ricardo Garcia-Packed an order without
being checked by a checker.
3-3-Armando Ortiz-Too many errors due to not
paying attention to his work. Shows no improvement.
Poor work.
4-6-Jesus Espinoza-Was making too many big
mistakes.
7-30-Richard Valenzuela -Too many mistakes.
Packed 3 orders not checked.
2-20-Clemente Escalante-Stacked about 400 pairs of
pants in wrong shelf.
7-31-Jose A. Acosta-Very poor production; No
improvement, refused to follow instructions.
l-8Juventino Morales-Made 56 pairs mistake on
order. Has had too many mistakes. Corrected error
without supervisor checking it. Production below
average.
1-9-Joe Vasquez, Jr.-Work very poor, plays around
too much.
1-10-Agustin S. Santini-Did not show any improve-
ment, too many mistakes.
1-20-Adan Reyna-Very low production. No signs of
improvement.
1-22-Emilio Casillas-Did not show any improve-
ment . Was making too many mistakes
1-26-Daniel Olrvas-Did not show any improvement.
Was making too many mistakes. Production below
average.
1-26-Jose L. Villagran-Production below average.
Did not show any improvement on his work. Was
making too many mistakes.
1-30-Jose L. Aguilera-Did not show any improve-
ment. Was making too many mistakes.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2-10-Lorenzo Munoz-Making too many mistakes.
Did not show any improvement.
2-13-Ramon F. Rios, Jr -Too many mistakes. Pro-
duction below average No improvement shown.
2-13-Ricardo J. Carmona-Made too many mistakes.
Does not show any improvement . Production below
average
2-19-Juan Mendoza-Did not show any improve-
ment. Was making too many mistakes . Said he had
personal problems.
2-21-Dan I . Himel, Jr.-No potential , very slow
worker.
3-30--Fernando Ramirez-Very low production and
making too many mistakes.
4-22-Eleno R. Diaz-Making too many mistakes and
low production.
4-24-Manuel Porras-Low production , no improve-
ment.
4-29-Guadalupe Pineda-Too many mistakes, no
improvement.
4-30-Mario M Porras-Making too many mistakes.
Showed no improvement
5-5-Guillermo Chavez-Making too many mistakes.
No improvement
5-6-Ernie Marrufo-Making too many mistakes. No
improvement.
5-6-Carlos Vera-Making too many mistakes. No
improvement.
5-7-Gregorio Gutierrez, Jr -Making too many mis-
takes. No improvement.
5-7-Isaac L. Soto-Making too many mistakes. No
improvement.
5-18-Ernesto Alfaro, Jr.-Making too many mistakes.
Low production.
8-3-Donald E . Tubbs-Too many problems . Did not
show any interest in his work.
10-5-Ygnacio Enriquez-Very low production.
In 1968, from September 1 through December 31 (the
only records for 1968 in evidence), no employee was
discharged for "too many errors ." In the categories of
production and refusal to follow instructions , one was
discharged for being "very slow worker" and two for not
following instructions.
Records of Respondent covering the 2 years and 4
months from September 1968 through December 1970,
show that only during the 8-month period of December
1969 through July 1970, inclusive , were employees in the
shipping department discharged for the assigned reason of
"too many errors ." Prior to that time and after that time,
this reason for discharge does not appear . As to five of the
employees discharged in 1969 (Estorga, Ramos, Moreno,
Niglio, and Guillen) who were discharged for reasons
which included "no aptitude for this type of work,"
"unable to do his work ," and "very poor and slow worker,"
their work errors could be encompassed in their evaluation
as workers.
As pointed out in paragraphs E, 2, and F, errors were
and are a frequent and expected occurrence , and supervi-
sion showed concern with them only when they were not
caught in the checking procedures used-that is, reached
the customers ; or if an error was an unusually large one.
Even then it was not used as a basis for discharge. I have
found that Respondent 's inauguration of the procedure of
recording all errors and confronting employees with their
errors immediately after the advent of the union organizing
activities of employees constituted an unfair labor practice.
Likewise, I find that those employees who were discharged
in consequence of this action and who would not otherwise
have been discharged were discriminatorily discharged. By
tightening up on its standards of errors , Respondent has
provided itself with an explanation or "justification " for its
discharges . The same would be true if an employer raised
his production standards as a retaliation for union
organizational activities . Such changes become illegal
when prompted by and done because of union activities
As to the employees discharged for work performance or
work rules , the test as to each employee is to determine
whether or not he would have been discharged irrespective
of Respondent 's illegal tightening up as to work perform-
ance and work rules . This will be determined by an
examination of the circumstances surrounding each of the
discharges complained of, particularly as to length of
employment , wage increases given , and general work
record, the latter being the area of review in determining
qualifications for wage increases . Respondent's wage
increases were not given across-the -board , but both
amounts and times thereof were based on ment of each
individual employee Long periods of service with numer-
ous wage increases are significant in determining Respon-
dent 's evaluation of an employee at a time when there was
no union activity. In evaluating an employee's general
work record , his conduct , his average daily production and
average number of work errors per month are compared
with that of employees in general ; however , no greater
significance is attached to work errors in this analysis and
evaluation than was attached to them by Respondent in
the absence of union activities.
From an examination of the production ledgers, I find
that the average daily production of order pullers was
somewhere between 1 ,900 and 2 ,300 pairs of pants per day,
depending on the period covered by a survey of averages,
at what point the averages of beginners is included , and the
extent of allowance for time spent in other jobs or off
work . During the critical period of January through July
1970, I find that the average number of notations for work
errors per employee to be about four or five per month.ii
Of the. employees in the shipping department discharged
from December 1969 through July 1970 and named in the
complaint , I find that the following were caught in
Respondent 's illegal tightening up of its work rules and
standards for mistakes and would not have been dis-
charged in the absence of the union organizational
activities and Respondent 's illegal measures taken in
response thereto:
Names Dates of Discharge
Manuel Pedroza December 16, 1969
Juventino Morales January 8, 1970
Manuel Montoya January 9, 1970
Jose L Villagran January 26, 1970
11 Occasionally a notation reported more than one error in an order
FARAH MANUFACTURING CO 679
Raymon F. Rios, Jr. February 13, 1970
Clemente Escalante February 20, 1970
Jesus J. Espinoza April 6, 1970
Guadalupe Pineda April 29, 1970
Mario M. Porras April 30, 1970
Guillermo Chavez May 5, 1970
Ernie Marrufo May 6, 1970
Carlos Vera May 6, 1970
Gregorio Gutierrez, Jr. May 7, 1970
Isaac Soto May 7, 1970
Ernesto Alfaro, Jr May 18, 1970
I find that the following named employees in the
shipping department would have been discharged for the
reasons assigned irrespective of the Union's organizational
activities in the plant:
Emilio Casillas January 22, 1970
Daniel Olivas January 26, 1970
Ricardo Carmona February 13, 1970
Manuel Porras April 24, 1970
Richard Valenzuela July 30, 1970
1. Manuel Pedroza discharged December 16, 1969
Pedroza was employed by Respondent on May 3, 1967,
as an order puller and was discharged on December 16,
1969. The reason assigned for his discharge was that he
made too many mistakes, and his conduct was also a
factor. His starting rate of pay was $1.40 per hour, and he
was receiving $2.10 per hour when discharged, having
received six merit wage increases during the 2 1/2 years of
his employment, his last increase having been given on
April 9, 1969.
Pedroza signed a union authorization card on September
30, 1969, and he signed the second union telegram dated
October 23, 1969. He attended union meetings, solicited
for the Union, distributed union authorization cards
regularly in the central corridor. Chemali testified that he
observed Pedroza so engaged.
During the inventory in the last week of October 1969,
Pedroza was told by Supervisor Richard Ochoa to see
Supervisor Henry Soza in connection with some errors he
made and his conduct. He had been laughing loudly on
hearing a joke and it was reported to Soza that he was
creating a disturbance. While waiting in the shipping
department office, President Farah came by and asked
Pedroza what he wanted. Pedroza replied that he was
waiting to see Soza about some errors he had made. While
there Pedroza overheard Supervisor Norman Ekery state to
Farah that, "He is one of those guys. He is on it." Farah
came over to Pedroza and asked him if he had made the
errors on purpose. Pedroza replied that he had not. Farah
then told him that someone was telling him lies; that no
one could protect him; that if he wanted to let Pedroza go,
he could do so and no one could protect him. Farah asked
if he had ever done anything to hurt Pedroza and Pedroza
replied that he had not. Farah again asked Pedroza if he
had made the errors on purpose and Pedroza replied that
he had not. There is a notation on Pedroza's production
ledger dated November 1, 1969, that "WFF [Farah] talked
to him See note in ofc."
On December 4, 1969, Pedroza urgently needed to go to
the restroom, but all of the stalls were occupied. He kicked
or hit on the trash can and knocked on the stall doors. This
was reported to supervision, and he was called in and
reprimanded by Chemali for this conduct and told that he
did not want to warn Pedroza about his conduct again.
On December 9, 1969, Pedroza was pulling an order and
was told that his packer wanted to see him. When he got
there the packer showed him an order for 17 pairs of pants
and told him that he had pulled the wrong lot number
Pedroza then went to get the correct pants, but the correct
color and lot were not on the shelf. Pedroza took the order
back to the packer. Supervisor Meili saw Pedroza in the
shelving area and followed him to the packer. He asked to
see the order Pedroza was working on and asked what was
wrong. Cisneros, the packer, told him that Pedroza had
pulled the wrong lot Meili told the packer that he was
supposed to report those errors to the checker instead of
telling the puller. Meili called Supervisor Aguirre and told
him about it. Pedroza was told to go back to work. About
10 or 15 minutes later, he was called over the loudspeaker
and told to report to the packer's table:When he got there,
Chemali and Aguirre were there. Pedroza tried to explain
that he had pulled the wrong order because the correct lot
and the one pulled were side by side. They went to the
shelves and Pedroza showed them that the two lots were
side by side. Chemali said, "You know, you have more
errors than anyone." He told Pedroza to better himself and
Pedroza said he would try. Then he went back to work
On December 16, 1969, shortly after the lunch period,
Pedroza was pulling an order and was told that his packer
wanted to see him. He went to the packer's table; Chemali
and Soza were there. Chemali questioned him about an
order that he had pulled that contained an error involving
15 pairs of pants; he told Pedroza that he had not
improved in his work and could not better himself. Soza
then said he would have to let Pedroza go.
Pedroza's production record for 1969 prior to November
1, 1969, shows notations by supervisors as to his errors as
follows: one error in January; five in May; one in June;
one in August; three in September; and one in October.
As previously mentioned in paragraph E, 2, Respondent
started the first of November 1969 keeping more complete
and detailed records of errors. Pedroza's production record
shows that from that date to the date of his discharge on
December 16 the following notations were made-
November l-WFF (President Farah) talked to him.
See note in office.
November 4-(notation not legible)
December 1-wrong lot (quantity not shown)
December 2-failed to mark sizes on the packing slip
December 4-disturbing the restroom, banging on
trash can, knocking on doors
December 9-wrong lot, 17 pairs
December 16-wrong lot, 15 pairs
December 17-wrong lot, 48 pairs (discovered after
Pedroza was discharged)
Summarizing as to Pedroza, he worked for Respondent
for 2 1/2 years and received six merit wage increases
during that period. As previously mentioned, Respondent's
wage increases are not given across-the-board, but both
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounts and times thereof are based on the merit of each
individual employee. Pedroza's name appears on the
Union's telegram of October 23; Pedroza was talked to by
President Farah on November 1 about the Union.
Pedroza's average daily production in 1969 was very low,
but irrespective of this, he was not talked to about it, there
are no notations on his production ledger or discharge
records about it, and there is no testimony that it was a
factor in his discharge. There are two incidents of
misconduct by Pedroza-laughing and creating a disturb-
ance during inventory and banging on doors and trashcan
in restroom and creating a disturbance there. After the last
incident, he was warned about any future acts of
misconduct, but his discharge was for too many mistakes.
This is the first discharge by Respondent (based on records
going back to September 1968) for the reason of "too many
mistakes." On November 3, 1969, Robert Santos was told
about too many mistakes during inventory, but he was not
discharged until after he failed to report for work 1 day
and failed to see a doctor as he said he was going to do; his
attitude was indifferent. Pedroza's records show notations
for six mistakes and two acts of misconduct from
November 1 to December 17, 1969. Six errors in 6 weeks is
within the normal range; Pedroza's four known errors and
five actual errors in December was within the normal
range. Giving consideration to all factors, I find that
Pedroza would not have been discharged under the facts
and circumstances that existed had it not been for the
union activities of employees at the Gateway plant and
Respondent's efforts to thwart same.
2. Juventino Morales discharged January 8, 1970
Morales was employed by Respondent on January 16,
1968, as an order puller and was discharged on January 8,
1970. He received five wage increases during his 2 years of
employment, the last was effective the work week ending
October 15, 1969. The reason assigned for his discharge
was that he corrected an error without a supervisor being
called and also because he had too many errors.
Morales signed a union authorization card on September
30, 1969, and signed the union telegram of October 23,
1969. He went to union meetings and solicited on behalf of
the Union and distributed cards in the central corridor. He
started wearing a union button on January 8, 1970, the day
that he was discharged. No supervisor spoke to him at any
time about his union activities.
On January 8, 1970, at about 9 a.m., Morales was passing
by the table of one of his packers, Raymond Amparan, and
Amparan told him of an error that he had made involving
56 pairs of pants, and that it was all right for him to correct
the error. Morales then got the correct pants and brought
them to the table of Amparan.
At about I or 2 o'clock in the afternoon, Morales was
called on the loudspeaker by Supervisor Henry Soza. He
went to the table of Amparan, and Soza and Vice President
Chemali were there as well as checker Guadalupe Pina and
packer Amparan. Soza asked Morales if he did not know
that he was not supposed to correct mistakes until it had
been reported to a supervisor. Morales said that he knew
about this procedure but that he was bringing a truck to
the packing table when he found out about the mistake and
felt that it would be easier to go ahead and correct it
himself. Soza then told Morales and Amparan that they
were not going to do whatever they wanted to do there He
told them that they were discharged.
As previously mentioned in paragraphs E, 2, and F, in
November 1969, Respondent started a procedure whereby
a supervisor or checker was to be called on all errors of
pullers, the errors recorded, and the employee talked to
about the error by Vice President Chemah and another
supervisor. I have found that this new procedure was
illegally motivated. As to Morales, the issue is whether he
was discharged as a consequence of this illegally motivated
tightening-up measure or would have been discharged
irrespective of this change
Morales' production ledger shows notations by supervi-
sors regarding errors as follows:
1969-three notations of errors in January, one in
June; one in September, three in October, and six in
December.
1970-one notation on January 8; that he pulled 56
pairs of lot #3029 instead of lot #3036. It is also noted
thereon that "he was dismissed for making too many
mistakes."
Morales' production averages during 1969 are well below
the average range. Although it is noted on his discharge
records that his production was below average, he was not
talked to about it, he worked for 2 years and received five
merit wage increases irrespective of it, and Supervisor Soza
testified that he was discharged for "too many mistakes
and also for correcting that order without a supervisor first
checking it." His work errors were a little more than
average only in December 1969.
Taking into account Morales' 2 years of employment, his
five merit wage increases, the circumstances under which,
and the motivation for, the work changes that brought
about his discharge, and the fact that Respondent had
discriminatorily discharged Adan Gonzales, the instigator
of the Union in the plant, I find that the discharge of
Morales for too many mistakes and for correcting a work
error would not have occurred in the absence of the union
activities of employees at Respondent's facilities and
Respondent's retaliatory tightening of work standards
3. Manuel Montoya discharged January 9, 1970
Montoya was employed in November 1967 He did not
report for work the first workday after the Christmas
holidays in 1967 and he was terminated for this reason;
however, he was rehired 2 weeks later on January 18, 1968,
and worked in the shipping department as a packer. He
was terminated on January 9, 1970, and the reason
assigned was that he packed an order without it being
checked. During his 2 years of employment, he received six
merit wage increases, the last being given on December 3,
1969
Montoya signed a union authorization card on October
23, 1969. His name appears on the union telegram of
December 12, 1969. He started -wearing a union button
when the employees returned to work in January 1970,
,following the Christmas holidays. Montoya was one of the
employees participating in the meeting of employees on
December 12, 1969. (See para E, 4)
FARAH MANUFACTURING CO. 681
At about 8 a m., Friday, January 9, 1970, Supervisors
Soza and Serna came to Montoya and showed him an
order and asked if it was his. Montoya stated that it was;
Serna asked why he had packed it since it had not been
checked. Montoya said he could not give any explanation;
that he might have rushed himself. Serna told him that if he
made one more mistake he would be discharged. He then
gave Montoya the order to have it checked. Montoya
opened the box, laid out the order, and had checker
Guadalupe Pena check it. It contained no error. The order
was then repacked and dispatched.
At about the time of the morning rest period that day,
Montoya was working on another order. A new color was
involved and he did not know the name of it. He stopped a
puller and asked him about it. The first one did not know
and he asked another puller who gave him the name of the
color. President Farah was in the shipping department at
this time and Farah came to Montoya and asked what was
wrong. Montoya told him that he was trying to verify the
color. Farah told him, "Didn't you know that you weren't
supposed to talk to the pullers?" Montoya said he knew
about the rule, but he thought that it meant he was not to
talk to his own pullers. Farah stated that it applied to
anyone. He told Montoya that if he needed any assistance
to ask another packer or a checker or a supervisor. Farah
called Serna and explained to him what had happened.
When Farah left, Serna asked Montoya why he was
causing so many problems Soza told Montoya that they
had a log book of all the colors and styles and lot numbers
at the shipping room office
Later that morning, Farah came again into the shipping
department and talked to Serna and Soza and told them
that he had been getting too many telephone calls and
complaints that orders were going out wrong; that they
should be more careful in checking and packing orders
especially as to size ranges and that they should be very
careful to see that no order gets out without being checked.
Soza mentioned that that morning there had been an order
that had not been checked. Farah asked if the employee
had been discharged and Soza replied in the negative.
Farah turned to Serna and told him, "Didn't I tell you
when we came back after the Christmas vacation that we
were not going to tolerate any more orders being packed
without being checked by supervisors?" Serna replied that
this had been told him but that he did not know that Farah
meant the employees should be discharged. Farah then
stated, "That is exactly what I meant. I told you we are
getting too many complaints from customers and we
cannot tolerate any such mistakes like that." Serna then
stated that 2 or 3 days before a packer had packed an order
without it being checked. Farah asked if he had been
discharged and Serna replied no. Farah stated that they
could not tolerate such mistakes and he told Soza to let
Montoya go Soza asked about the other packer, Manuel
Escajeda, and Farah stated that he should be discharged
also.
Soza then went to Montoya and told him that he was
sorry but this rule had been in effect and he was going to
have to let him go. Soza then went back to Manuel
Escajeda and told him the same thing; that 2 or 3 days ago
he had packed an order without it being checked; that this
was a rule that Farah had set and that he was going to have
to let him go. Escajeda said, "Why, why me?" Soza replied,
"Well, because it's a rule and that rule was set by Mr.
Willie Farah and I'm going to have to let you go."
Escajeda stated, "But I'm not a union man, why do you
have to let me go?" Soza replied that he was sorry but that
it was a rule that had been set by Farah.
Packing an order without it being checked had always
been considered an error, but during the 4-month period of
the rule, January through April 1970, 8 packers were
discharged for packing an order without it being checked.
(Their names are listed in a prior paragraph; of these only
Montoya is named in the complaint herein.)
The rule was rescinded in the latter part of April 1970
because it was considered to be too harsh. The rule was
rather suddenly promulgated by President Farah in
January 1970, and he stated to Supervisors Soza and Serna
that he was getting too many complaints from customers
about orders going out wrong. Aside from his assertion of
this fact, there is no evidence on the point. But, during the
4-month period of January through April, the error was
made 8 times, and, if one of these orders had been packed
wrong, it would have reached a customer in that condition.
This issue is whether or not Farah decided to impose the
punishment of discharge for this error because of customer
complaints or as part of the "tightening up" measures
taken in retaliation against and to restrain employees
because of the union activities in the plant. I have found
that this was one of the changes made to interfere with,
restrain, and coerce employees because of their union
activities. (See paras. E, 2, and F.) I find that the discharge
of Montoya in the pursuit of this illegal measure was
discriminatory and find that his discharge would not have
occurred for this reason had it not been for the union
activities in the plant.
4. Jose Villagran discharged January 26, 1970
Jose Villagran was employed in August 1966, and
discharged on January 26, 1970. He was an order puller in
the shipping department. The reason assigned for his
discharge was that he was making too many errors and also
conduct was a consideration.
He started at the rate of $1.25 per hour and was receiving
$2.25 per hour when discharged, having received nine
merit wage increases during the period of his employment,
the last being on November 5, 1969 He received Christmas
bonuses in 1967, 1968, and 1969.
Villagran signed a union authorization card on October
3, 1969. He distributed cards to employees in the central
corridor, attended union meetings, and wore a union
button after they were distributed to union members in the
first part of January 1970. His name appears on the
Union's telegram of January 8, 1970. Villagran was one of
the employees at the meeting of employees in the shipping
department during the afternoon break on December 12,
1969, at which Farah had supervisors take down their
names. This incident is discussed in paragraph E, 4. Also,
Villagran was a witness for the General Counsel in the
Board hearing involving the discharge of Adan Gonzales
conducted on January 14, 15, and 16, 1970. His testimony
with that of three other employees responded to the
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention of Respondent as to deficient production by
Gonzalrs by testimony that "those engaged in closeout
pulling during the period in question performed a `usual'
amount of work." 12
On January 26, 1970, Villagran was discharged. His
production record shows that on that day he pulled 42
pairs of lot #24410 and 22 pairs of lot #24412, and the
quantities should have been reversed . He was told by Soza,
after Soza checked by telephone with Chemali, and with
Supervisor Ochoa being present, that since they had tried
to help him in whatever they could and he had replied
there was nothing they could do for him and that since his
work was not improving, Soza had no choice but to let him
go.
Although Respondent had started the new system of
recording errors of pullers in November 1969, yet Villagran
has only one entry on his production ledger prior to
January 16, 1970, the last day of the hearing in the Adan
Gonzales case. The one entry was made on December 12,
1969, the day of the employee meeting called by Luis
Alvarez in the shipping department, and that entry is "very
curious and looking up to the shipping room when the
incident on Luis Alvarez occurred."
From January 16 to 26, there are notations of errors on
Villagran's production ledger on January 16, 17, 19, 22, 23,
and 26, as follows:
On January 16, he was cautioned about wasting time;
this is in reference to the incident involving George Lopez
set forth in paragraph E, 1.
On January 17, there is an ' entry that Villagran was
reprimanded for carrying a newspaper in his clipboard
with his orders and was told that this would go on his
record. This incident is also discussed in paragraph E, 1.
On January 19, Monday, there is an entry that Villagran
pulled one order short, involving 15 pairs of pants.
Villagran was called by Supervisor Serna and told he had
pulled 15 pairs of pants of the wrong color He denied to
Serna that he had made the error, contending that he had
checked the order on several occasions.
On January 22, there are two entries, one that Villagran
pulled 25 pairs of lot #28077 for #28078, and the other
that he pulled 10 pairs of the wrong color. On this date, he
was talked to by Soza about the errors Soza asked him
what was wrong with him; that if he had any problems to
tell him and he would try to help him. Villagran replied
that he was doing his job well, and he asked Soza what was
wrong; why was it bothering Soza more that week than
before; that Soza had told him on several occasions that he
was a good worker.
On January 23, there are two entries; one that he pulled
6 pairs in one order that were two waist sizes short, and the
other that he pulled 12 pairs of the wrong lot. He was
talked to that day by Soza and Chemali. Chemali asked
him what was happening and if he had problems. Villagran
replied in the affirmative and stated that he was being
followed by Esman and Meili. Chemali told him to pay
more attention to his work, and Villagran replied that he
was. Chemali stated that Villagran did not want to work.
Villagran stated that he was telling him his problem so he
could help him. Chemali asked if he knew how many errors
he had made. Villagran replied that he was not counting
them, and that he could not understand why in the 2 or 3
years before this no one had ever told him about his errors
and now they were. Chemali replied that the reason he was
getting told now was so that the Company could tell which
people were doing the good job and which were doing the
bad job; that then they could give credit to the ones doing
the good work and help to those doing the bad work; that
before this system was instituted they did not have a
system to check the pullers.
In 1969, other than the entry on Villagran's production
ledger for December 12, the only entries are : one entry in
January; one in May; and two in June.
Respondent 's records on the discharge of Villagran
contain a notation of "production below average ," as well
as reference to his errors and conduct. Since this was not
advanced as a reason for his discharge , I find that it was
added to the record as an observation of his production
abilities . There is no evidence that his production level was
at any time discussed with him . His daily average
production by months is as follows:
January 1969-2,337
February 1969-2,501
March 1969-1,083
April 1969-757
May 1969-1,993
June 1969-1,766
July 1969-1,781
August 1969-2,204
September 1969-1,392
October 1969-1,388
November 1969-special
orders and closeouts
December 1969-closeouts
January 1970-1,788
Summarizing as to Villagran-Villagran worked for
Respondent for 3 years and 5 months; he was given nine
merit wage increases during that time , the last on
November 5, 1969. There are no notations on his
production ledger of any errors during the period of
November 1, 1969, to January 16, 1970 ; there are only four
for the entire year of 1969 . He testified as a witness for the
General Counsel in the Adan Gonzales case conducted on
January 14, 15, and 16, 1970. Then, in the next 6 working
days from Friday, January 16, to the following Thursday,
January 22, there are six notations for errors and two for
conduct-cautioned for wasting time for one and repri-
manded for carrying a newspaper on his clipboard for the
other. He was discharged on January 22 after he had on
that day pulled two wrong lot numbers. He was told that
"since his work was not improving ," Respondent "had no
choice but to let him go." I find that in addition to
Villagran's being caught in Respondent's new criteria for
discharge , his appearance as a witness in the Adan
Gonzales case was a contributing factor. His production
ledger is virtually free of notations by supervisors until
January 16, 1970; then suddenly he accumulated notations
for errors and misconduct for which Respondent had no
choice but to let him go. I find that his errors and conduct
were a pretext for Respondent's discharge of him for union
activities and his act of testifying in the Adan Gonzales
case.
12 Farah Manufacturing Co, 187 NLRB 601
FARAH MANUFACTURING CO. 683
5. Ramon Rios discharged February 13, 1970
Rios was employed by Respondent on April 4, 1968. He
was an order puller and received four merit wage increases
during his period of employment, the last being effective
the workweek ending December 3, 1969. The reason
assigned for his discharge was "too many mistakes."
Rios signed a union card on September 30, 1969, and his
name appears on the union's telegram of January 8, 1970.
He attended many union meetings and solicited on behalf
of the Union in the main hallway and had two union
bumper stickers on his car.
Between 9 and 10 a.m. on February 13, Rios was called
to the table of a packer and there in the presence of Vice
President Chemah, Supervisor Moreno told him that he
had made another mistake and he asked Rios if he knew
that he had made a lot of other mistakes. Rios stated that
he was aware that he had made mistakes. Then Moreno
told him that as he had made a lot of mistakes and that
they were going to have to let him go. The mistake he made
on that day involved 12 pairs of pants.
Rios' production ledger for 1970 shows notations by
supervisors as follows:
January 8-wrong lot, 22 pairs of lot #24727 for lot
# 24427
January 14-short, 27 pairs
Date illegible-short, 20 pairs
January 21-short, 14 pairs
January 23-short, 7 pairs
January 23-short, 5 pairs
January 28-short, 5 pairs
January 29-short, 2 lot numbers
February 3-short, 8 pairs
February 9-short, I color
February 11-pulled wrong color twice; wrong size, 9
pairs; wrong lot, 16 pairs
Rios' production ledger for 1969 shows notations of
errors as follows: four errors in January; one error in
February, four errors in August; two errors in October,
one error in November; and one error in December.
Prior to the inauguration in November 1969 of the policy
of recording all errors and confronting employees with all
their errors, Rios was making the same number of errors in
his work as he made after it started. Small errors, usually
involving less than 12 pairs of pants, were corrected by the
packers; on larger errors, the packer called the puller who
corrected the error. This was the operating procedure prior
to November 1969, errors were frequent and expected in
this type of work. Supervisors were aware that errors were
being made but were not usually involved in this aspect of
the work unless the error was not corrected before being
dispatched or unless it happened to be a particularly large
one. On occasions they talked to employees about errors
they observed being caught or corrected. Supervisors
Moreno and Aguirre had talked to Rios about errors prior
to November 1969. They had told him to try to do better.
Rios worked for Respondent for almost 2 years. During
all of this time, Respondent kept daily records of his
production and that of all order pullers and packers (and
other employees whose production could be measured).
During this time, Rios' work was rewarded with four merit
wage increases , the last being on December 3, 1969.
Furthermore , at the time Rios was discharged , February
13, 1970, his production total and average for the 6 weeks
of 1970 was higher than it had been at any time in 1969.
Rios' daily production averages for 1970 and 1969 are as
follows:.
January-2,152
February-1,876
January-1,816
February-1,865
March-1,283
April-In stock
May-In stock
June-1,502
1970
1969
July-1,804
August-1,451
September-1,575
October-1,766
November-1,395
December-1,786
Respondent's records (see above listing of employees
discharged for work errors, taken from Resp. Exh. 110)
show reason for discharge of Rios to be "too many
mistakes; production below average." Yet, production was
not mentioned to Rios at time of discharge. He testified
that, in November or December, Supervisor Ekery spoke
to him about his production and thereafter he improved his
production, which, in fact, he did.
Summarizing the more salient facts as to Rios, Rios
worked for Respondent for almost 2 years and received
four wage increases. For the first 6 weeks of 1970, he
accumulated a total of 13 errors, a very high number for
that period In November and December 1969, there is a
notation of one error for each month. As Rios testified, his
average of errors was the same in his work both before and
after Respondent began its policy of recording all errors.
Rios' production in 1969 was low; irrespective of this, he
received three wage increases during that year. He was
reprimanded about low production in December 1969; and
in the 6 weeks of 1970 he brought his daily average
production up 2,152 in January and 1,876 in February,
better than any single month in 1969. I find that Rios
would not have been discharged in the absence of the
union activities in the plant and Respondents coercive
measures taken in retaliation against these activities.
6. Clemente Escalante discharged
February 20, 1970
Escalante was employed in March 1967 as a stocker-
second separator. On February 16, 1970, the work of
stocker-separator was divided, and Escalante and about
eight other employees were assigned as stockers. He was
discharged on February 20, 1970, allegedly for committing
a large error. He stacked 200 to 400 pairs of jeans on top of
slacks. He started work at the rate of $1.40 per hour and
was receiving $2.30 per hour when discharged having
received eight wage increases. He trained two employees
while working for Respondent.
Escalante signed a union authorization card on Septem-
ber 30, 1969. His name appears in the telegram dated
December 12, 1969. He started wearing a union button in
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1970, and wore three or four every day thereafter.
He attended union meetings, he talked to employees and
gave out about 20 union authorization cards
On February 20, 1970, Raul Guerrero, a stockman,
called Escalante and told him to come to the shelves-that
he had mixed one lot with another. Escalante met Guerrero
there and also Supervisor Esman. There were 200 to 400
jeans of an olive color placed on top of slacks also of an
olive color The error was corrected and Esman told
Escalante to go back to work. He then called Vice
President Chemali, and told him about the mistake of
Escalante and said that he would like to discharge
Escalante because of the size of the error. Chemah said he
wanted to talk to Escalante.
About 11 o'clock that morning, Chemah called Escalante
and in the presence of Esman asked him how it happened
that he had mixed one lot with another. At first, Escalante
did not acknowledge that it was his error. Guerrero was
called and said that it was Escalante's error. Escalante
replied, "If you say so." Escalante then said that maybe he
was not too careful; that he was human and made mistakes
too. Chemah asked Guerrero how many trousers had been
mixed and Guerrero replied it was about 400 pairs.
Escalante stated that it was not that much. Chemah then
told him that, in view of the difference between slacks and
jeans and the length of time Escalante has been separating
pants, he felt that it was an intentional act, and he told
Escalante that he was discharged.
There is no precedent for discharging an employee
because of the size of a single error and there is evidence
that other employees made errors similar in size to that of
Escalante and were not discharged. Frank Molinar, a
stocker, who started working for Respondent in May 1969,
made two errors on October 9, 1970, totaling 360 pairs of
pants. He was not discharged. He mixed lot #40851 with
lot #40882 and lot #40853 with lot #40883 on shelf
#47B. On October 21, 1970, Jose Robles mixed lot
#40531 with lot #40523, involving 400 pairs of pants, and
was not discharged.
The only evidence of any other error by Escalante is a
notation on his production ledger on February 19 that he
mixed sizes in the same bundle in the shelf. Supervisor
Esman could not testify as to the details of the error but
testified that Escalante possibly had put a 31 length with a
32 length.
The error of the 200-400 pairs of pants discovered on
February 20 was committed by Escalante in the late
afternoon of February 19. The jeans and the slacks that
were mixed were of the same color and same material and
had very similar lot numbers-28297 and 28227. On the
other hand, jeans and slacks are folded differently, have
different style pockets and have different labels and tickets.
Based on this difference and the length of time that
Escalante had been separating pants, Chemali told
Escalante and testified that he did not believe Escalante
could commit this error without it being intentional. The
issue is whether or not Escalante would have been
discharged for committing this one error in the absence of
the union activities in the plant. I find that he would not
have been and this is based principally on the fact that the
only basis for Chemali's accusation that Escalante mixed
the pants in the shelves with "intent" to commit a wrong
was the fact that by looking at the pants involved, one
could recognize that one group was jeans and the other
slacks.
There is nothing in Escalante's almost 3 years of
employment that would support an accusation of inten-
tional wrongdoing. Pants had been found in the inventory
in 1969 that had been slashed with a knife; thus, someone
had engaged in an intentional act of wrongful conduct.
However, in view of the actions taken by Respondent to
"strike back" at the employees because of their union
activities, which actions included the discriminatory
discharge of the instigator of these activities, and illegally
motivated changes in working rules and standards, and in
view of Escalante's work record and the unusualness of the
action taken against him, I find that Respondent would not
have terminated him for the large error he committed on
February 19 in the absence of the union activities that were
going on in the plant.
7. Jesus Espinoza discharged April 6, 1970
Espinoza was employed by Respondent on July 8, 1968,
and worked as an order puller He received three wage
increases, the last being effective on the week ending
December 3, 1969. The reason assigned for his discharge
was "too many mistakes."
Espinoza signed a union card on September 30, 1969,
and his name appears on the union's telegram of October
23, 1969. He attended most of the union meetings and
beginning in February or March 1970 he solicited in the
central corridor on behalf of the Union.
At about 4:10 p m. on April 6, 1970, Espinoza was shown
an order by Supervisor Soza, with Vice President Chemali
being present, and asked if it was his He acknowledged
that it was. Soza told him that 20 pairs of pants were
missing. Espinoza replied that he had pulled the order
correctly. Soza said that the 20 pairs of pants were not
there. He told Espinoza that he was making too many
mistakes and that he was sorry but that they were going to
have to let him go
Espinoza's production ledger shows the following nota-
tions in 1969 and 1970:
In 1969 there are the following numbers of notations for
errors: one in January; one in May; one in August; one in
September; two in October; and one in December. There
are also notations in December that he was told to put his
glasses on one occasion and on another occasion that he
forgot his glasses.
1970
January 7-making excessive noises disturbing
other employees
January 13-wrong lot, 36 pairs
January 21-(not decipherable)
January 28-wrong lot, 12 pairs
January 30-wrong lot, 4 pairs
February 4-short , 10 pairs
February 9-wrong lot, 17 pairs
February 18-wrong style, 26 pairs
February 24-wrong lot (quantity not shown)
FARAH MANUFACTURING CO. 685
February 27-short, 2 lots 8 pairs
March 6-short, 26 pairs
March 7-short, 18 pairs
March 9-pulled 141 pairs wrong on 4 orders
March 9-wrong color, 4 pairs
March 10-wrong color, 9 pairs
March 11-short, 14 pairs
March 12-short, 5 pairs
March 30-wrong lot, 5 pairs
April 3-short, 47 pairs
April 6-short, 20 pairs
There is no criticism of Espinoza's production record
which shows daily averages in 1970 as follows: January
-1,752; February-2,217; and March-2,068.
In 1970, when Espinoza made an error, he was called to
the packer's table and the error pointed out to him. When
Espinoza was called about an error on March 11, Vice
President Chemali asked him what was the matter and if he
could help Espinoza. Espinoza stated that he had been
trying to memorize his orders so that he could pull several
at a time. Chemali told him not to do that. Espinoza also
told him that he was nervous because his wife was
pregnant and that he was worried about his job. Chemali
told him to try to think that he was going to do his job right
and not to worry about losing it. For the rest of that
month, Espinoza made only two errors involving only five
pairs of pants each. When Chemali confronted Espinoza
about an error on April 3 involving 47 pairs of pants, he
asked Espinoza how his wife was doing and if she had
delivered yet; Espinoza replied that she had not and that
he felt at ease and was not worrying about that anymore
Summarizing as to Espinoza, he worked for Respondent
for I year and 9 months and received three wage increases.
His number of errors in 1970 was in the average range
except for the month of March when he had a total of eight
errors with one involving 141 pairs of pants. His pro-
duction average in 1970 was 2,012 pairs per day which was
within the average range. I find that Espinoza was caught
in Respondent's illegally motivated tightening-up measures
and would not have been discharged in the absence of the
union activities in the plant.
8. Guadalupe Pineda discharged April 29, 1970
Pineda was employed by Respondent in October 1967 as
an order puller. He received six wage increases, the last one
effective the week ending November 19, 1969, was in the
amount of 20 cents per hour and brought his hourly rate to
$2.35. The reason assigned for his discharge was "too many
mistakes."
Pineda signed a union authorization card on January 3,
1970. His name does not appear on any of the union
telegrams. He did not engage in any overt union activities
until about March 1, 1970, when he started wearing a
union button and also standing in the central corridor
during the noon period on Wednesdays with several other
employees and advising employees who passed by about
union meetings held on Wednesday evenings. He did not
distribute authorization cards but did solicit on behalf of
the Union.
On the day of his discharge, April 29, 1970, at about 2.50
p.m., Pineda was called by Soza and told that he had made
another error. Pineda could not remember about the pants
involved. Soza took him to the office and showed him a
book and said that he had too many errors. Soza then said,
"Well, we told you about it, you just did the same thing
again, I'm sorry, we're going to have to let you go."
Pineda's production ledger shows notations for errors in
1969 and 1970 as follows:
1969-only 2 notations of errors, 1 in July and 1 in
September.
1970
January 20-short, 1 lot
February 3-wrong color, 36 pairs
February 7-wrong color, 6 pairs
February 12-short, 24 pairs
February 17-short, 22 pairs
February 21-short, 12 pairs
February 25-short, 16 pairs
February 26-short, 5 pairs
March 6-short, 13 pairs
March 9-short, 40 pairs
March 12-short, 10 pairs
March 16-short, 23 pairs
March 25-short, 3 lots, 17 pairs, 17 pairs and 14
pairs respectively
March 25-short, II pairs
March 25-short, 6 pairs and pulled lot 29170 for
lot 29172
March 31-short, 28 pairs
March 31-short, 34 pairs, and 12 pairs wrong
size
April 9-short, 5 pairs
April 11-short, 7 pairs
April 13-short, 18 pairs
April 20-short, 14 pairs and 19 pairs
April 27-wrong color, 3 pairs
April 27-wrong color, 12 pairs
April 27-wrong color, 8 and 12 pairs
April 29-short, 9 pairs
Pineda was called and told of his errors by various
supervisors including Soza, Meili, and Aguirre. On March
25, Soza told Pineda that maybe he would be better doing
something else such as separating. Pineda replied that he
would try harder to do better.
Soza testified that Pineda was a high producer. His daily
production averages in 1969 and 1970 were as follows:
1969
January-2,158
February-2,407
March-2,307
April-
May
June-1,592
July-1,975
August-1,748
September-1,780
October-1,985
November-1,764
December-2,075
1970
January-1,973
February-2,489
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March-2,474
April-2,134
Pineda worked for Respondent 2 1/2 years and was one
of its high producers. He was talked to about transferring
to another job, but Pineda said he would try harder to cut
down on mistakes and it was not offered. He had no
notations on his record as to errors from the time the
practice of making such notations began in November
1969 until January 20, 1970, and only two notations of
errors in the entire year of 1969. Pineda received six wage
increases during his 2 1/2 years of employment, three in
1968 and three in 1969. His last increase was 20 cents per
hour, whereas most increases are at the rate of 10 cents per
hour. He joined the Union on January 3, 1970, and started
overt union activities on about March 1, 1970. The first
notation of an error was entered on January 20, 1970; then
there were seven notations in February; nine in March;
and nine in April. This is unquestionably a high quota of
errors for the period of time involved, although it can be
accounted for in some respects by Pineda's high rate of
production; and if Respondent had had a practice of
discharging employees who accumulated this number of
errors without the Union being the cause of its adoption,
then the selection of Pineda for discharge could not be
questioned. But, Pineda was caught in Respondent's illegal
change and tightening of requirements as to work errors.
Pineda had worked for Respondent for about 2 1/2 years
without discharge or being disciplined for errors until 1970,
and I find that he would not have been discharged in this
instance had it not been for the union activities of
employees.13
9. Mario Porras discharged April 30, 1970
Mario Porras was employed by Respondent on Septem-
ber 1968 as an order puller. He was discharged on April 30,
1970, and the reason assigned was "too many mistakes and
also conduct was a factor." During his period of employ-
ment, he received three wage increases, the last being
effective the week ending December 3, 1969.
Porras signed an authorization card on October 1, 1969
He solicited for the Union in the main corridor during the
lunch period. In about the early part of April 1970, he
began wearing a union button and on some occasions he
wore two buttons. He distributed approximately eight
buttons to other employees and distributed approximately
25 to 30 authorization cards; none of the authorization
cards were returned to him. No supervisor said anything to
him about the Union or about his distribution of union
cards or about his wearing a union button.
Shortly after lunch on the day of his discharge, April 30,
1970, Porras was pulling an order and a particular item of
pants was missing from the shelves. He asked another
puller where the surplus stock of these pants was located.
As Porras left this employee, Supervisor Meili came to him
and asked what he was doing. Porras told him that he
needed a particular item of pants and that the location of
the surplus of these pants was not marked down and that
he got the information of the location of these pants from
the other puller. Meili then asked him if he knew that he
was not supposed to be talking. Porras answered yes but
that he was talking about the job. Then Meili took out a
book and wrote something down.
Shortly before the afternoon break on the same day,
April 30, Porras was called to the packing tables.
Supervisor Soza, with Vice President Chemali present, told
Porras that he had made an error. While they were talking,
Meili came up and told Soza that Porras had been talking
that afternoon. Porras explained to Soza and Chemali that
he had been talking about work. Soza told Porras to be
more careful.
Shortly after the afternoon break that day, Porras was
again called to the packing area and told by Soza that he
had made another error; that he was going to have to let
him go. Soza testified that Porras was terminated for
making too many errors and that conduct was also a
factor. The conduct which was a factor was the report by
supervisors on several occasions that Porras was talking to
other employees while in the shelving area.
The production records of Porras show notations for
errors and conduct as follows:
1969-one notation in January; two in February;
four in June; two in August; and one with illegible
date.
1970
January 8-wrong color, 37 pairs
January 19-wrong color (quantity not shown)
January 21-short, 8 pairs
January 27-short, 43 pairs i4
February 4-wrong lot, 22 pairs
February 6-short, 29 pairs
February 13-wrong color, 5 pairs
February 18-short, 18 pairs
February 19-short, 20 pairs
February 27-short, 12 pairs
March 4-{not deciphered)
March 5-short (quantity not shown)
March 6-wrong color, 4 pairs
March 9-2 wrong lots, 2 pairs and 3 pairs
March 11-wrong color, 23 pairs
March 18-short, 35 pairs
March 24-wrong lot, 8 pairs
March 24-wrong color, 2 lots (quantity not
shown)
April 20-wrong color, 18 pairs; cautioned about
excessive talking
April 21-2 wrong lots, 12 pairs and 5 pairs
April 24-short, 3 pairs
April 27-wrong color, 17 pairs
April 27-short, 5 pairs
April 28-told not to do so much talking in the
shelves.
April 29-short, 9 pairs
April 30-told to concentrate more in his work
instead of talking in the shelves all the time;
12:50 PM, short, 15 pairs; 3.15 PM, short, 16
13 Foster Co, 192 NLRB No 45
14 A duplicate entry of this error was made on January 28
FARAH MANUFACTURING CO. 687
pairs; talked to by Chemali about too much
talking in the shelves; 3:50 PM, wrong lots, 79
pairs and 38 pairs.
On March 24 , when Supervisor Soza talked to Porras
about a mistake , he told him that maybe he would be able
to do better doing something else as a separator ; that if he
needed additional training to let them know and they
would help him. Porras answered that he would try to do
better.
Porras' daily production averages for 1969 and 1970
were as follows:
1969
January-1,391
February-1,822
March-1,672
April-1,770
May-1,550
June-1,455
July-1,734
August-1,085
September-1,389
October-1,507
November-1,382
December-1,862
1970
January-1,368
February-2,289
March-2,087
April-1,989
Porras' production averages for his last 4 months of
employment ( 1970) were higher than they had been at any
time in 1969.
Porras had an excessive number of errors in March and
April 1970. His production in 1970 , however , was in the
average range , and in each of the 4 months of 1970, his
production was higher than during any month in 1969.
Porras testified that he was making approximately the
same number of errors in 1969 as in 1970 . He worked for
Respondent for a little over a year and a half and received
three merit wage increases . I find that Porras was caught in
Respondent 's illegally motivated tightening -up measures
and would not have been discharged absent the union
activities in the plant.
10. Guillermo Chavez discharged May 5, 1970
Chavez was employed on July 1963 and discharged on
May 5, 1970. At the time of discharge, he was an order
puller and had been for approximately 2 years; prior to
that, he had wqrked in several types of jobs in the shipping
department. During his period of employment of almost 7
years, he received 12 wage increases . His last increase was
effective the pay period ending January 14, 1970, at which
time he was told by Supervisor Ekery that he had had a
good December and a good start in 1970. His rate of pay
was $2.50 per hour. In accordance with company policy, he
received a Christmas bonus each year of his employment
except 1963 . The reason assigned for his discharge was
"too many mistakes."
Chavez signed a union authorization card on September
30, 1969, and signed the Union's telegram to the Company
dated October 22, 1969. Chavez was very active as a
member of the organizing committee . He passed out union
authorization cards at the plant cafeteria , in the central
corridor , and outside the plant . He passed out approxi-
mately 800 authorization cards and witnessed signatures of
employees on approximately 50 cards . He attended all of
the union meetings and spoke at most of them . He visited
the homes of approximately 20 to 25 employees and in so
doing obtained about 12 signatures on authorization cards.
He wore three union buttons from the time they were
distributed (January 1970) to the day of his discharge. He
was one of the employees who attended the meeting of
employees in the shipping room on December 12, 1969, set
forth in paragraph E, 4.
Chavez was a witness for the General Counsel in the case
involving the discharge of Adan Gonzales , heard on
January 14, 15, and 16, 1970. The Trial Examiner's
Decision , which issued on May 6, 1970 , mentioned Chavez
and three other witnesses as having testified to the effect
that those engaged in closeout pulling during the period in
question performed a "usual" amount of work. It is noted
that the Trial Examiner's Decision issued after the
discharge of Chavez.
Chavez was talked to on two or more occasions by
supervisors about his union solicitation. As mentioned in
paragraph D, shortly after the Union 's telegram of October
22, 1969 , President Farah told Chavez that he was not to
go into the cutting department . In December 1969, Vice
President Chemali reprimanded Chavez for "pressuring"
other employees to sign union authorization cards.
Chavez was discharged near the end of the workday on
May 5, 1970. He was called to a packing table. There Vice
President Chemali , in the presence of Supervisor Aguirre,
told him that he had been making "too many mistakes."
Chemali took Chavez to the shipping room office and
showed him his production ledger and told him that he had
been making more mistakes than anyone there and that he
thought he would have to let him go. Chavez laughed or
smiled . Chemali asked him why he was laughing and
Chavez replied no reason.
Chavez' production ledger shows notations for errors in
1969 and 1970 as follows: (Two references to conduct-
shouldering another employee and hollering at someone-
which are not a factor in his discharge are not included.)
1969-one notation in January; one in May; one in
July, one in August; one in November; and three in
December.
1970
January 9-duplicate packing slips. See note in
office.
January 26-short, 19 pairs
January 26-wrong color, 8 pairs
January 29-short, 3 pairs
January 29-short, 4 pairs
January 30-wrong color, 16 pairs
February 6-2 wrong lots, 21 pairs
February 7-wrong lot (quantity not shown)
February 7-wrong lot (quantity not shown)
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 7-short, 16 pairs
March 9-short, 6 pairs
March 16-wrong lot, 16 pairs
March 20-2 wrong lots, 27 pairs (pulled lot
#25560 for lot #22560 and lot #25562 for lot
# 22562)15
March 20-wrong waist, 9 pairs
March 24-wrong lot, 8 pairs
March 25-2 wrong lots (quantity not shown)
March 30-short, 19 pairs
April 3-wrong lot, 5 pairs
April 6-short, 6 pairs
April 14-short, 15 pairs and 4 pairs
April 23-short, 17 pairs
May 1-short, 11 pairs
May 4-wrong color, 12 pairs
May 5-short, 18 pairs
In March 1970, when Vice President Chemali talked to
Chavez about an error, he told Chavez that he might have
to move him to do something else, maybe a separator,
where he might be able to do better. Chavez told him that
he had not been feeling well and was going to see a dentist
about his gums. Reassignment to 'another job was not
mentioned to him again.
Chavez' daily production averages in 1969 and 1970 were
as follows:
1969
January-2,358
February-2,498
March-1,438
April-
May-
June-
July-2,114
August-2,002
September-1,736
October-1,319
November-1,634
December-2,305
1970
January-2,458
February-2,801
March-2,576
April-2,398
May-2,514
Chavez was a high producer and his daily averages
during 1970 were exceptionally high. Chavez' record of
errors shotlcs that his errors were not excessive in number.
March was the month with the most number of notations
-seven notations with two of them containing reference to
two errors each. The number of notations for April and
May was less than the average. Chavez worked for
Respondent for 6 years and 10 months, and had been an
order puller for approximately 2 years. He received 12
merit wage increases during his employment. I find that
Chavez would not have been discharged absent the union
activities in the plant. There is insufficient specific
evidence, however, to relate Chavez' discharge to his act of
testifying in the Adan Gonzales hearing, as separate and
distinct from his union activities in general. Therefore, I
find no violation of Section 8(a)(4) of the Act as to his
discharge.
11. Ernie Marrufo discharged May 6, 1970
Marrufo was employed by Respondent in June 1968 and
was an order puller. He received three merit wage
increases, the last effective the pay period ending October
15, 1969. The reason assigned for his discharge on May 6,
1970, was "too many mistakes."
Marrufo signed a union card on October 2, 1969. In
December, he began soliciting on behalf of the Union and
attending union meetings. In January 1970, he started
wearing a union button. In January, he had a conversation
with Supervisor Aguirre regarding the Union, which
conversation is set forth in paragraph G and found to be
noncoercive.
In the afternoon of May 6, 1970, Marrufo was called to a
packing table where Supervisor Soza showed him an error
involving a shortage of six and four pairs of pants on an
order. Then Soza took him to another packing table and
pointed out an error of a shortage of 33 pairs of pants.
Marrufo contended that he had not made this error and
that he had been assisted in pulling it by stockman Joe
Acuna. Acuna was called and acknowledged that he had
helped Marrufo on an order, but he could not remember
the sizes that he had worked on. Supervisors Meili and
Aguirre were also present. A little later, Soza came to
Marrufo and told him that he would have to let him go
because he had made too many mistakes.
Marrufo's production ledger shows notations regarding
errors as follows:
1969-one in February; one in May; two in June;
one in October; and one in December.
1970
January 8-short, 24 pairs
January 14-wrong color, 11 pairs
January 26-short, 14 pairs
January 31-short, 14 pairs
February 2-short, 8 pairs
February 6-wrong color, 5 pairs
February 6-wrong color, 10 pairs
February 10-wrong color, 7 pairs
February 10-wrong color, 30 pairs
February 11-order had slip "do not pull" 28295
Blu. Forgot to write it on packing slip.
February 26-short, 30 pairs
February 27-wrong lot (quantity not shown)
March 4-short, 11 pairs
March I 1-wrong color, 15 pairs
March 16-wrong color, 9 pairs
March 17-short, 6 pairs
April 6-wrong color (quantity not shown)
April 10-wrong lots, 14 pairs
April 13-short, 15 pairs
April 22-wrong lot, 118 pairs
April 28-short, 7 pairs
May 4-short, 8 pairs
15 This illustrates how easily an error can be made with lot numbers
containing five connected digits.
FARAH MANUFACTURING CO. 689
May 6-short, 6 pairs and 4 pairs
May 6-short, 33 pairs
Marrufo's daily production averages for 1969 and 1970
were as follows:
1969
January-1,720
February-1,853
March-1,675
April-1,073
May-1,345
June-1,316
July-1,592
August-1,753
September-1,261
October-1,499
November-1,796
December-2,286
1970
January-2,044
February-2,183
March-2,000
April-not totaled
May-not totaled
Marrufo worked for Respondent 1 month less than 2
years and was given three wage increases. Prior to
December 1969, his production was below the average
range , but from December 1969 on it was well within the
average range . His average of errors was not excessive;
February 1970 was his poorest month with eight notations;
March had four ; April had five; and May had three. I find
that Marrufo would not have been discharged with his
record of employment , production , and work errors in the
absence of the union activities in the plant.
12. Carlos Vera discharged May 6, 1970
Vera was employed by Respondent in September 1968
and worked as an order puller. He received three merit
wage increases , the last being effective the pay period
ending October 15, 1969. The reason assigned for his
discharge was "too many mistakes."
Vera signed a union card on October 25, 1969. His name
does not appear on any of the Union's telegrams. He
attended most of the union meetings and solicited for the
Union in the central corridor, but passed out no cards
there. He passed out some cards in the cafeteria and
received back about six or eight signed cards. He received
a union button in January 1970, but he did not wear it
throughout Sny day and some weeks he did not wear it at
all. On various occasions, he would remove it so that
supervisors would not see it . Supervisors Soza, Esman,
Ekery, Meili, and Vice President Chemali testified that
they did not see Vera wearing a union button.
On the day of his discharge, May 6, Vera received a call
to go to a packer's table. There Supervisor Soza called his
attention to an error and told him he had made too many
mistakes. He took Vera to another table and showed him
some errors he had made on some "cash sales" of pants to
employees. Soza said that he was sorry but that he would
have to let him go.
Notations of errors on Vera's production ledgers for
1969 and 1970 are as follows:
1969-one in January; two in May; and one in
October.
1970
January 20-wrong lot, 9 pairs
January 28-wrong color (quantity not legible)
January 28-wrong color (quantity not shown)
February 9-short, 18 pairs
February 18-short, 19 pairs
February 23-wrong color, 44 pairs
February 25-short, 22 pairs
February 25-short, 27 pairs
February 28-wrong color, 7 pairs 16
March 2-wrong lot, 17 pairs
March 4-short, 7 pairs
March 16-short, 12 pairs
March 17-wrong color, 11 pairs
March 18-short, 16 pairs
March 20-wrong color, 10 pairs
March 31-wrong lot, 44 pairs
April I-short, 4 pairs
April 3-wrong lots, #3022 for #3020 and
#3020 for #3022 (quantity not shown)
April 6-wrong color, 20 pairs
April 6-short, 7 pairs
April?-wrong color, 10 pairs
April 7-short, 36 pairs
April 17-short, 40 pairs
April 18-short, 16 pairs
April 20-wrong lot, 21 pairs
April 22-short, 8 pairs
April 30-wrong lot, 22 pairs
May 5-wrong color, 14 pairs
May 6-wrong color, 19 pairs; also 5 "cash sale"
tickets pulled wrong
Vera's daily average production for 1969 and 1970 were
as follows:
1969
' January-1,602
February-1,679
March-1,385
April-1,708
May-2,195
June-1,895
July-1,414
August-1,558
September-1,678
October-1,824
November-1,826
December-1,961
1970
January-1,772
February-2,411
March-2,030
April-2,182
Vera worked for Respondent for 1 year and about 8
months; received three merit wage increases ; starting with
IB Respondent's brief sets forth two notations for February 28, but Resp.
Exh. 38 shows only one for that date.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1970, his production averages were in the upper
part of the average range; he had more than the average
number of work errors in February, March, and April 1970
with 11 notations in April. Respondent had no knowledge
of the union activities of Vera. Yet, prior to the advent of
the Union, number of errors was not used as a sole basis
for discharge In view of this fact, Vera's length of service,
wage increases, and production rate, I find that he would
not have been discharged in the absence of the union
activities in the plant and Respondent's illegally motivated
tightening-up measures.17
13. Gregorio Gutierrez discharged May 7, 1970
Gutierrez was employed by Respondent on March 18,
1969. The reason assigned for his discharge was "too many
mistakes."
Gutierrez received three wage increases during his period
of employment; the last was received on February 25,
1970, and was in the amount of 20 cents per hour. He
worked as an order puller in the shipping department.
Gutierrez signed a union authorization card on February
5, 1970, and in March began wearing a union button;
however, he wore it only intermittently. Supervisor Meili
testified that he observed Gutierrez wearing a union
button. Gutierrez also solicited on behalf of the Union in
the central corridor.
As previously set forth in paragraph G, sometime in
February 1970, Gutierrez was talking with employee
Ernesto Alfaro. Supervisor Aguirre came to Gutierrez and
asked him what Alfaro had said to him and Gutierrez
replied that he had told him something about the orders.
Aguirre then asked him if he had signed a union card and
Gutierrez said that he had not. Aguirre said that "this
union bit is no good, don't sign." I have found that the
interrogation constituted illegal interference.
On May 7, 1970, the day of his discharge, Gutierrez was
called to a packing table by Supervisor Soza, who told him
that he had forgotten to pull 5 pairs of pants in a 25-pant
order. Soza told him that he had been making mistakes,
and he asked Gutierrez if he wanted to see his production
book. Gutierrez replied in the negative. Gutierrez's
production ledger shows notations of errors in 1969 and
1970 as follows:
1969-one error in May; one in June; one in July;
one in August; two in October; three in November;
and one in December.
1970
January 12-wrong lot, (quantity not shown)
January 15-wrong lot, (#28077-78 for #28277-
78) 15 pairs
February 4-wrong color, 15 pairs
February 6-wrong lot, 8 pairs
February 16-wrong lot, 19 pairs
February 21-short, 4 pairs
March 3-wrong color, 6 pairs
March 4-wrong color, 6 pairs
March 4-wrong color, 20 pairs
March 6-wrong color, 8 pairs
March 12-short (quantity not shown)
March 17-wrong color, (quantity not shown)
March 18-wrong color, 5 pairs
March 20-wrong lot, 7 pairs
March 20-wrong lot, 15 pairs
March 30-wrong lot, 34 pairs
March 31-short, 6 pairs and 6 pairs
March 31-short, 4 pairs
April 2-wrong color, 14 pairs
April 13-short, 19 pairs
April 15-short, 12 pairs
April 17-wrong color, 10 pairs
April 20-short, 7 pairs
April 21-short, 6 pairs
April 25-short, 4 pairs
May 4-wrong lot (quantity not shown)
May 7-short, 5 pairs
The daily production averages of Gutierrez in 1969 and
1970 were as follows:
1969
April-1,318 September-1,618
May-1,281 October- 1,702
June-1,417 November-1,653
July-1,723 December-1,909
August-1,735
1970
January-1,855
February-2,313
March-2,082
April-No total
May-No total
Gutierrez testified that after he signed the union card on
February 5, 1970, he paid more attention to what he was
doing in his work because he was fearful of the possibility
of a discharge and that he made less errors thereafter than
he had made prior to that time. -
Gutierrez and a few other employees worked during the
period of the Christmas vacation in 1969. Supervisor
Aguirre told Gutierrez that he was doing all right and that
he would recommend him for a raise. In February 1970,
Supervisor Ekery told Gutierrez he was doing all right and
that he would get a raise. As previously noted, Gutierrez
received a 20-cent-per-hour wage increase on February 25,
1970. Although he had signed a union card on February 5,
he did not begin to wear a union button until March
Gutierrez worked for Respondent approximately 1 year
and 2 months; he received three merit wage increases; he
received compliments from supervisors about his work in
December 1969 and in February 1970. Gutierrez received a
20-cent-per-hour wage increase effective the workweek
ending February 25, 1970 Gutierrez was illegally interro-
gated in February; he started wearing a union button in
March. His errors were excessive in number in March and
April 1970, but better than average in all other months. His
production average in 1970 was well within the average
17 Foster Co, 192 NLRB No 45
FARAH MANUFACTURING CO 691
range. I find that Gutierrez would not have been
discharged in the absence of the union activities in the
plant.
14. Isaac Soto discharged May 7, 1970
Soto was employed by Respondent in August 1967 and
was an order puller in the shipping department at the
Gateway plant. The reason assigned for his discharge was
"too many mistakes."
Soto received seven wage increases during his penod of
employment, the last two being effective the weeks ending
November 19, 1969, and April 15, 1970. The last increase
was in the amount of 20 cents per hour
Soto joined the Union on October 7, 1969. He attended
most of the union meetings. He solicited on behalf of the
Union and passed out approximately 20 authorization
cards, none of which were returned to him; he engaged in
this activity primarily outside the plant, in the parking lot,
and in the restroom. He ate his lunch outside the plant, and
recalls only one time that he participated in solicitation in
the central hall. Soto did not wear a union button and his
name does not appear in any of the union telegrams. There
is no direct evidence that the Company had knowledge of
his union membership or activities.
On the day of his discharge, May 7, 1970, Soto was
called to a packing table. Supervisor Soza called his
attention to an order on which there was a shortage of 5
pairs of pants. Soza, in the presence of Supervisors Meili
and Aguirre, told Soto that he had been making too many
mistakes lately, and that he would have to let him go. The
notations of errors on Soto's production ledgers for 1969
and 1970 are as follows:
1969-one error in May; one in June; one in July;
one in November; and three in December.
1970
January 14--(Error not decipherable)
February 2-short, 13 pairs
February 5-wrong color, 6 pairs and short, 4
pairs
February 12-wrong color, 22 pairs
February 23-short, 8 pairs
February 24-wrong lot, 51 pairs
March 3-wrong color, 5 pairs
March 10-wrong color, 5 pairs
March 14-wrong lot (#22566 for #25566), 16
pairs
March 18-wrong color, 10 pairs
March 30-wrong color, 10 pairs and 10 pairs
March 30-wrong size, 13 pairs
March 30-wrong color, 4 pairs
April 3-short, 17 pairs
April 6-short 2 colors, 7 pairs
April 13-short, 4 pairs
April 13-wrong lot, 10 pairs
April 14-short, 6 pairs
April 18-wrong color, 23 pairs
April 18-short, 4 pairs
April 22-wrong lot, 26 pairs
April 22-wrong color, 7 pairs
April 24-short, 11 pairs
April 27-2 wrong lots (quantity not shown)
April 28-wrong lot, 5 pairs
April 28-wrong color, 8 pairs
May 4-wrong size, 17 pairs
May 4-wrong color, 14 pairs
May 5-wrong color, 6 pairs
May 5-wrong color, 5 pairs
May 7-short, 5 pairs
Supervisor Soza testified that Soto was a high producer.
His daily production averages in 1969 and 1970 were as
follows:
January-2,489
February-2,734
March-2,740
April-1,066
May-2,051
June-2,343
1969
July-2,072
August-2,054
September-1,975
October-1,466
November-2,067
December-2,243
1970
January-2,164
February-2,394
March-2,456
April-2,500
Soto worked for Respondent for 2 years and 9 months;
he received seven merit wage increases, the last being
effective the work week ending April 15, 1970, was in the
amount of 20 cents per hour. Soto was a very high
producer and was above the average range the last 2
months of his employment. When Supervisor Esman was
assigned to the shipping department in the fall of 1969,
Supervisor Ekery assigned Soto to train him and told
Esman that Soto was one of their best workers and that he
knew everything about the job. Soto's record of errors is
excessive during the months of March and April 1970.
Irrespective of Soto's high record of errors in April 1970,
which is also the month he was given a 20-cent merit wage
increase, and the fact that there is no evidence that
Respondent had knowledge of Soto's union activities, I
find that in consideration of his employment record and
Respondent's illegally motivated tightening up on work
errors, Soto would not have been discharged in the absence
of the union activities in the plant.
15. Ernesto Alfaro discharged May 18, 1970
Alfaro was employed on September 23, 1965. He started
as a bundle boy at the Third Street plant. In December
1965, he transferred to the shipping department in the
Gateway plant as an order puller. He was discharged May
18, 1970, and the reason assigned was too many mistakes,
low production, and conduct. During his period of
employment, he received 10 merit wage increases with the
last being on January 14, 1970. During his penod of
employment, Alfaro trained eight or nine employees.
Alfaro signed a union card on October 2, 1969. His name
appears as the first name in the Union's telegram on
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 23. He was very active for the Union. He wore
four or five union buttons. He talked to employees in the
hall and in the cafeteria and in the parking lot and passed
out about 50 to 60 union cards He witnessed the
signatures on about 10 or 12 cards. He placed union
stickers on the bumper of his automobile. He attended all
union meetings except the first two. He participated in a
union parade that was held on May 8 or 9, 1970. He was a
member of the group of employees whose names were
taken on December 12, 1969. (Para. E, 4.)
On May 18, 1970, the day of his discharge, Alfaro had an
appointment to see an eye doctor at 2:45 p.m. He told
Supervisor Ekery that he had to leave at about 2:35 that
afternoon. Ekery said it was okay and to let him know so
that he could mark Alfaro out.
At about 2 p.m., Supervisor Meili called Alfaro on the
intercom. He told Alfaro to meet him at a certain place
near the packing area. When Alfaro got there, Soza asked
him if the order he had in his hand was Alfaro's order.
Alfaro replied that it was. Soza told him that it was short
three pants. Alfaro asked how that could be as he was sure
he picked them out. Soza said, "Well, if they're not here,
I'm sure you missed them." Alfaro insisted that he was sure
he did pick them since they were the last item on the order
and therefore the first item on top of the cart. Soza said the
pants were not there. Then he took Alfaro to another part
of the packing area and got another order and asked
Alfaro if this was his order and Alfaro stated that it was.
Soza said that it was missing eight pants. Alfaro testified
that these were also the last items on the order and
therefore would be on the top of the cart. Soza said that
they were not here and that this meant he did not pull
them. He asked Alfaro if he was saying that someone was
cheating him or trying to foul him up Alfaro stated that if
they were not there it meant that someone had taken the
pants off the truck. Soza stated, "Well, we dust can't seem
to be getting anywhere with you. You're making a lot of
mistakes. We'll dust have to let you go." Then he turned to
Meilh and told him to take Alfaro to the office.
When an order puller delivers a completed cart to the
work distribution area for packing, it is then assigned to a
packer in due course for packing. Alfaro testified that he
has seen packers go to this area and take one or two pants
from a cart to complete another order that they are
packing. Packers have taken pants from carts which have
incomplete orders and which are being held for the arrival
of particular items into stock. But there is no proof that
packers take items from carts with completed orders.
Occasionally, but infrequently, errors in orders are made
in the office. When this is discovered to be the case, the
error is not charged to the puller. On a couple of occasions
this happened to orders of Alfaro
On about six occasions in 1970, Alfaro was talked to
about low production. On one occasion, he told Soza that
his production was low because he was trying to be careful
about making errors. On another occasion, he was shown
some production figures by Mesh and told that his
production was running about 500 to 600 pairs a day below
the average puller. On one occasion, Soza told him that
pullers with much less experience than he were having a
higher production with fewer errors. Alfaro also testified
that in the spring of 1970 his eyes were giving him trouble,
but he did not mention this to a supervisor.
Notations on Alfaro's production ledgers for 1969 and
1970 regarding errors, production, and conduct are as
follows:
1969-six errors in February; two in June; one in
September; and one in December.
1970
January 13-asked not to hold unnecessary
conversation during working hours, see note in
office.
January 14-wrong color, 12 pairs
January 15-short, 25 pairs
January 23-wrong lot, 8 pairs
February 3-short, 75 pairs
February 6-told his production was low for the
month of January
February 17-short (quantity not shown)
February 24-short (quantity not shown)
February 24-told his production was better in
January but still was low
February 27-excessive talking in stock area
March 3-excessive talking in stock area
March 3-short, 9 pairs
March 6-wrong color (quantity not shown)
March I 1-wrong lots (quantity not shown)
March 19-wrong color, 7 pairs
March 31-wrong color (quantity not shown)
April 6-short, 11 pairs
April 9-short, 8 pairs
April 9-low production
April 10-wrong lot, 9 pairs
April 29-low production
May 4-short, 19 pairs
May 4-wrong lot, 9 pairs
May 12-short, 21 pairs and wrong color, 3 pairs
May 13-talked to about low production
May 14-talked to about his low production
May 14-short, 8 pairs
May 16-control numbers 271531-33 not signed
May 16-wrong color, 21 pairs and short, 8 pairs
May 18-short, 3 pairs
May 18-short, 8 pairs
The production averages for Alfaro in 1969 and 1970
were as follows:
1969
January-2,268
February-1,974
March-1,703
April-1,640
May-1,801
June-1,803
July-2,187
August-1,725
September-1,652
October-1,907
November-1,208
December-1,953
1970
January-1,474
February-1,765
FARAH MANUFACTURING CO 693
March-2,047
April-1,837
May-1,894
Alfaro worked for Respondent 4 months less than 5
years, and most of this was as an order puller. His
production in 1969 and 1970 would average out at a little
below the general average range; and in 1970 he made
more mistakes than the average. Yet, during the tenure of
his employment, his work merited 10 wage increases, the
last one being effective the workweek ending January 14,
1970. He was also assigned to train new employees. Under
all the circumstances, I find that Alfaro would not have
been discharged in the absence of Respondent's illegally
motivated tightening-up measures.
I find that order pullers Emilio Casillas, Daniel Olivas,
and Richard Carmona, and second separator Manuel
Porras, and packer Richard Valenzuela would have been
discharged by Respondent irrespective of the union
activities in the plant and Respondent's illegally motivated
tightening-up measures
16. Emilio Casillas discharged on
January 22, 1970
Casillas was employed by Respondent on January 13,
1969, as an order puller. He was discharged a year later on
January 22, 1970, and the reason assigned was that he was
making too many errors and also conduct was a factor He
received one wage increase dunng his period of employ-
ment and that was on April 9, 1969.
Casillas signed a umon card on October 22, 1969. He
talked to about five persons about signing a union card,
two of whom were his brother and sister. He did not
distribute any union cards.
The General Counsel contends that Respondent had
knowledge that Casillas signed the union card on October
22, and this is based on the fact that Supervisor Serna was
in the shipping room dunng the break period when Casillas
signed a card upon solicitation by Guillermo Chavez.
Serna was in the shipping room office area, a raised
platform, about 90 feet from the packing table where the
card was signed. Other packing tables were between them.
Casillas testified that he observed Serna looking in his
direction. Serna testified that he did not see Chavez sign up
Casillas for a union card.
On October 22, 1969, there was widespread distribution
of union cards at Respondent's plant; this was shortly
before the broad no-solicitation rule discussed in para-
graph D was promulgated and enforced. President Farah
had observed the distribution of union cards that day in
the parking lot and in the shipping area before work
started.
Casillas did not wear a union button, although many of
the union adherents started wearing them on or about
January 8, 1970 In view of the equivocal nature of
Casillas' testimony about his union activities and also
about the work order that led to his discharge on January
22, 1970, I find that the extent of his union activities was
the signing of a union card and talking to a few people
about joining the Union. I find that Respondent had no
knowledge of his union activities.
Casillas was discharged on January 22, 1970, following
an error on an order involving a shortage of 20 pairs of
pants. Casillas' testimony about the matter is not clear and
conflicts with his affidavit as to whether or not the order
had been completed by him. He testified that the order was
incomplete and that he did not turn it in for packing, yet in
his affidavit he stated that it "had been completed and was
ready for packing." The order involved items that were not
in stock when Casillas first received it; he added to the
order as items came into stock. He testified that the last
time he added pants to the order was in December 1969,
and that he had not turned it in for packing when he was
called down about it being short 20 pairs of pants on
January 22.
On January 22, Casillas was called to a packer's table
and talked to by Supervisor Soza and Vice President
Chemali about the order. Soza asked him what had
happened; Casillas replied that he did not know. Chemali
asked him if he had any mistakes before, and Casillas
replied, "Yes, a lot of mistakes." Soza then said, "Well,
there is no hope for you. We're going to have to let you
go .
Entries on Casillas' production ledger regarding errors in
1970 are as follows:
January 5-wrong color, 12 pairs
January 15-wrong color, 35 pairs
January 17-wrong color, 10 pairs
January 17-wrong lot (quantity not shown)
January 20-wrong color, 32 pairs
January 20-wrong color, 35 pairs
January 20-short, 15 pairs
January 20-short, 10 pairs
January 22-short, 20 pairs
In 1969, there is only one entry on his production ledger
for the period of November 1 to December 31 and that was
on November 1 and was for conduct during the inventory.
The entry is "laughing and disturbing the counters too
much-sent home, also used profanity against man-in-
charge of crew." He called an employee, who was serving
as captain of a crew of employees, a son-of-a-bitch or a
brown-noser; he spoke in Spanish. He was reprimanded
for this conduct and sent home for the rest of the period of
the inventory. This was on November 1, Saturday, and the
inventory was completed on Sunday, November 2. For the
remainder of the year 1969, the entries on his production
ledger are as follows- two errors in January; one error in
May; two errors in June; one error in July, two errors in
August; two errors in September; and one error in
October, a total of nine notations.
Casillas' daily production averages were as follows:
694
February-1,235
March-1,301
April-1,643
May-1,532
June-1,471
July-1,483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1969
August-1,373
September-1,387
October-1,673
November-1,591
December-1,
January 1970-1,522
In no month did his average production reach the
average range. Due to Casillas' relatively short period of
employment, poor work record and lack of wage increases,
I find that he would have been terminated irrespective of
the union activities in the plant and Respondent's illegally
motivated tightening-up measures.
17. Daniel Olivas discharged January 26, 1970
Olivas was employed by Respondent in June 1969 as an
order puller and was terminated on January 26, 1970, and
the reason assigned was that he made too many errors. He
received one merit wage increase during his employment
and this was on December 3, 1969, and was an increase of
15 cents per hour.
Olivas Joined the Union on November 18, 1969 His
name appears in the Union's telegram of January 8, 1970,
and Olivas started wearing a union button on that date
Following that date, he passed out authorization cards in
the central corridor at noon and attended union meetings
On December 16, 1969, Olivas went to Supervisor Ochoa
and asked if he would retrain him. Olivas testified that he
did this because of an error he made that day; he became
nervous and fearful about his job because he had put some
tape on a plastic bag containing pants in order to keep
them from slipping off the cart When he started to remove
the tape, he found that he could not do so without tearing
the plastic bags. Pursuant to his request for retraining, the
next day Supervisor Esman worked with him part of the
day.
In January 1970, Olivas made errors on January 14, 23,
and 26, and was talked to by Soza and Chemali on these
occasions. On January 23, Olivas told them that he was
having trouble with his eyes Later that day, he went to see
the company doctor about his eyes and his skin condition.
He testified that "I was doing errors and I had this
problem, nerves, I guess." He testified that he broke out
with skin rash because of his nervousness. The doctor
asked him what was his problem and he told the doctor
that he was nervous because of the pressure that was being
put on him on his job. But Ohvas had had problems with
his skin and his eyes before union organizing began and
before Respondent began tightening up in the shipping
department. He had had a skin rash before he started
working for Respondent and also in July 1969, when it was
caused by a personal problem. Also when Olivas was first
employed by Respondent, he went to see Respondent's eye
doctor and obtained glasses, and in October 1969 his eyes
were reexamined and new glasses prescribed.
On January 23, 1970, Olivas asked Supervisor Ekery if he
could change his job. He asked him again on Saturday,
January 24. Ekery told him that he would see about it on
Monday. On Monday, January 26, Olivas asked him again,
and Ekery replied that he was going to see about it right
then.
Later that day, January 26, Olivas was called to the
packer's table and was talked to by Soza and Chemali
about an error he had committed Soza told him that he
was short six pairs of pants on the order. Olivas replied that
his was a back order, that he had pulled those pants 2
weeks before, and that he did not know what could have
happened to the pants. Soza told him that he would have to
let him go because he was making too many errors.
During 1970, Olivas worked from January 8 through 26.
His production ledger shows entries for errors as follows:
January 14-3-wrong color 25 pairs; short 1
color, quantity not legible; wrong lot, quantity
not legible
January 23-1-short I lot number
January 26-2-short 1 lot number ; short I color
During 1969, Olivas worked as an order puller from July
18 through December 31. His production ledger shows
entries for errors as follows: two in August; one in
September; two in November, and five in December
Regarding Olivas' request for a transfer to another type
of work, Respondent has no consistent policy on the
matter. Some employees who have been unable to perform
in one job have been offered transfers and some have been
transferred; others have not been given transfers but have
been discharged. From the evidence, I do not find that
Olivas was discriminatorily refused a transfer to another
job.
Respondent's records (Resp. Exh. 110) show reason for
discharge of Olivas as "too many mistakes; production
below average." Yet, his production was not mentioned to
him at the time of his discharge, nor is there any evidence
that he was reprimanded for it or that it was discussed with
him at any time or that he was warned of the possibility of
discharge because of low production. In September,
October, or November 1969, Supervisor Ochoa on several
occasions and Supervisor Ekery asked Olivas if they could
be of any help to him in his work. Supervisor Soza was
asked to testify as to whether mistakes and low production
were of equal consideration in the discharge of Olivas or
whether either one stood out, and he testified, "The
mistakes, too many mistakes."
Olroas' daily production average during his employment
as an order puller from July 1969 through January 1970 is
as follows:
1969
July-826 October-1,300
August-I,300 November-1,045
September-927 December-1,405
January 1970-1,311
On December 3, 1969, Olivas was given a 15-cent-per-
hour wage increase, and thereafter his production showed
a noticeable increase; yet throughout his employment his
production average was well below the average range.
Olivas worked for Respondent as an order puller about 6
FARAH MANUFACTURING CO. 695
months. He was a very low producer. He had a physical
condition involving his eyes, skin, and nerves, which,
apparently, the tension of the job affected. He was given a
wage increase on December 3, 1969. But, considering all
factors, I am inclined to the view and find that Olivas
would have been discharged for lack of potential and
progress irrespective of the union activities of employees
18. Ricardo Carmona discharged
February 13, 1970
Carmona was employed by Respondent in January 1969
as an order puller. He had two wage increases, the first
effective the week ending April 9, 1969, and the last
effective the week ending January 14, 1970. The reason
assigned for his discharge was "too many mistakes" and
"production below average."
Carmona signed a union card on September 30 and his
name appears on the Union's first telegram dated October
22, 1969. He attended some union meetings, he solicited
and distributed authorization cards in the central corridor,
and he wore a union button for about 3 weeks when they
were distributed in the first part of January 1970. He was
one of the employees attending the employee meeting on
December 12 in the shipping department when supervisors
took down the names of all present. (See para. E,4.) In the
latter part of January 1970, Carmona discontinued wearing
his union button, and also in January he discontinued
soliciting in the hallway for the Union except perhaps a
time or two.
On February 13, 1970, shortly before 9 a.m., Supervisor
Soza came to Carmona at one of the packing tables and, in
the presence of Vice President Chemali, asked him if he
was having any trouble with the orders and told him if he
was, he should have called a supervisor; he told Carmona
that he was making too many errors and that this last one
was a big error and that it meant he was going to have to
let him go. On that occasion, Carmona had pulled 30 pairs
of pants of a wrong color.
Carmona's production ledger shows notations of errors
as follows:
1970
January 6-short, 47 pairs
January 16-short (illegible number) pairs
January 17-short, 23 pairs, and a 5-pair error on
same order
January 19-short, 10 pairs
January 30-wrong lot (quantity not shown)
January 30-short, 7 pairs
February 5-wrong color (quantity not shown)
February 7-short, 4 pairs
February 9-wrong lot (quantity not shown)
February 11-short, 16 pairs
February I1-short, 13 pairs
February 13-color wrong, 30 pairs
No notations from January to September 1969, but:
September-l notation of wrong color
October-no notation
November-2 notations, wrong color and a
wrong lot
December-6 notations, 4 wrong colors, I wrong
lot and I short
Carmona was talked to by supervisors about errors in
both 1969 and 1970 and was told to be more careful. In
January 1970, Supervisor Aguirre or Moreno told him on
one occasion that he had about eight or nine errors and to
be more careful because he was wasting the time and
money of the factory.
Shortly before Christmas in 1969 Carmona was told by
Supervisor Ekery, "I've been looking over your records,
and you had good production. You're going to get a raise "
Carmona received a 15-cent-per-hour wage increase
effective the pay period ending January 14, 1970. Carmo-
na's production rate showed improvement in December
1969 and January 1970
His daily production averages are as follows:
February-892
March-1,148
April-1,416
May-1,537
June-1,399
July-1,197
August-1,406
September-1,372
October-1,262
November-1,333
December-1,567
January 1970-1,733
Carmona's production during his entire employment was
very low; in fact, at no time did his average daily
production reach the average range. When his production
showed some improvement, his errors exceeded the
average range for errors and continued so for his last 3
months. Although Carmona's production improved some
in December 1969 and in January 1970 and he was given a
wage increase based thereon, his overall work performance
was very poor and he had worked for Respondent only I
year and 1 month. I find based thereon that Carmona
would have been terminated irrespective of the union
activities in the plant.
19. Manuel Porras discharged. April 24, 1970
Porras was employed in October 1968, and was dis-
charged April 24, 1970. During this period, he was second
separator. The reason assigned for his discharge was low
production. He received three wage increases, the last
being received on December 3, 1969.
He signed a union card on October 23, and his name is
on the Union's telegram of December 12, 1969. He wore a
union button and attended all meetings after joining. He
talked to employees in the hall, gave out about 25 cards,
none of which were returned to him.
On about February 16, 1970, Supervisor Esman separat-
ed the as second separator-stockers, 9 were assigned as
stockers and 18 as second functions of second separating
and stocking. Of the employees classified separators.
Porras continued to work as a second separator. Because of
the separation of these functions, the average production
of the second separators increased. Porras' average daily
production was consistently below that of the other second
separators and in fact his daily average production was
lower than that of any other second separator. Esman
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talked to all separators on a daily basis about their
production. When he would talk to Porras, Porras'
production would increase temporarily. Esman tried to
work with Porras to increase his production. On April 22,
Esman spoke to Porras about his low production of April
21. His production on April 21 was 4,758, and on April 22
he increased it to 5,983. Esman reviewed his production
record again on Friday, April 24, and noticed that Porras'
production for April 23 had dropped to 5,282.
The average or expected daily production of second
separators after February 16, 1970, when they ceased
stocking, was about 6,000 pairs of pants per day. Although
some of the other second separators were below average
part of the time , there is no question but that Porras had a
much poorer production record than any other second
separator.
On April 24, 1970, Esman called Vice President Chemali
and reported that he wanted to discharge Porras because
his production was the lowest and he did not improve.
Chemali looked at the production record of Porras and
talked to him and asked him what was wrong. Porras
replied that sometimes he could do it and sometimes he
could not. He was discharged on April 24 because of his
low production. I find that the discharge of Porras would
have occurred irrespective of the union activities in the
plant.
20. Richard Valenzuela discharged on
July 30, 1970
Valenzuela was employed by Respondent on March 3,
1970, as a packer at the Gateway plant Two weeks later
his pay was increased 10 cents per hour, from $1.70 to
$1 80. He had previously worked for Respondent in the
summer of 1968 and left on August 21, 1968, to return to
school. His timecard after this period of employment was
marked, "No rehire." Valenzuela was terminated on July
30, 1970, and the reason assigned was too many errors.
Valenzuela signed a union card on April 15, 1970; his
name appears on the union telegram of May 7, 1970.
Valenzuela participated in a union demonstration in
downtown El Paso in May and thereafter became rather
active on behalf of the Union. He started wearing a union
T-shirt and a vest containing about 25 union buttons, and
he distributed buttons to others.
Valenzuela was discharged on July 20, 1970, after an
accumulation of errors in his work as a packer and after
repeated warnings about his errors and also about his low
production.
The previously mentioned average daily production and
monthly average number of work errors was for pullers
and is not applicable to packers. On July 10, Valenzuela
was warned a second time about his low production. On
July 20, he was reprimanded for packing several orders
that had not been completely checked. Again, on July 30,
he packed an order that had not been checked. For this, as
the culmination of a poor work record, he was discharged.
Based on the short period of employment of Valenzuela,
the notation on his record to the effect that his prior period
of employment was not satisfactory, and the poor work
record that he accumulated from March to July 1970, I
find that he would have been discharged on these
considerations irrespective of his union activities or the
union activities in the plant and irrespective of Respon-
dent's tightening-up measures.
1. Discharges in Other Departments Related
to Low Production
1. Gerardo Ciriza discharged January 28, 1970
Ciriza was employed by Respondent on October 3, 1968,
as a topper in the pressing room at the Gateway plant. A
topper is an employee who presses the top part of pants by
a machine designed for this purpose. Respondent employs
approximately 100 to 125 toppers. Toppers are employed
on approximately 20 production lines, there being 5 or 6
toppers on each of these lines. At the time of his discharge,
Ciriza was on a line doing the pressing on "executive"
models or types of pants. Some types of pants, such as
men's shorts and hard-weave executive pants would be
harder to press than the executive models that Ciriza was
working on. Other lines were doing models or types of
pants that would be easier for the presser than the
executive models. The reason assigned for the discharge of
Ciriza on January 28, 1970, was that he was the lowest
producer on his production line. During his period of
employment, Ciriza received one wage increase and this
was given to him on April 9, 1969.
Ciriza signed a union authorization card on October 22,
1969, and his name appears on the union telegram dated
October 23, 1969. He attended union meetings and stood
in the central corridor during the lunch period and
solicited on behalf of the Union.
-Shortly after the Christmas holidays in 1969, Ciriza's
supervisor, Stan Okies, was replaced by Supervisor Jimmy
Flack. Flack talked with Ciriza frequently about his low
production. Also, Department Supervisor Ernest Goeldner
spoke to him about his production, telling him to bring it
up.
Ciriza was discharged on January 28 by Goeldner with
Flack being present. Goeldner told Ciriza that he had been
told many times about his production and that they had
tried to help him and that his production was dust not
coming up and they had to let him go.
Ciriza's production was substantially and consistently
below that of the other four toppers on the same executive
line of production. Ciriza seldom had days on which he
pressed in excess of 40 pairs of pants, whereas the other
pressers on the same line seldom pressed less than 41 pairs
a day. It is noted, however, that Ciriza's production
remained at substantially the same level throughout the
entire year of 1969 and the first month of 1970.
The General Counsel contends that there are other
pressers on other lines whose production was no better
than that of Cinza's, but there is no accurate basis for
comparing the work of Ciriza on the executive line with
toppers on other lines pressing other types of garments.
The production records on the various toppers differ
widely; for example, topper Julieta Martinez consistently
pressed between 10 and 16 pairs of pants per day during
the period of January through August 1969. Starting with
March 1970, she consistently pressed in excess of 40 pairs
of pants per day This wide variance suggests that the
FARAH MANUFACTURING CO 697
pressing was done on these different months on different
types of garments.
In view of the fact that Ciriza's production was
consistently less than that of any other topper on his
production line, he had been repeatedly spoken to and
reprimanded about his production, he had received only
one wage increase in his 1 year and 3 months of
employment, I find that he was discharged for the reason
assigned and that it would have occurred irrespective of
the union activities in the plant.
2. Rosa Maria Castro discharged on
May 13, 1970
Castro started working for Respondent as a sewing
machine operator on September 15, 1966, at the Paisano
plant. She received four wage increases in her first 2 years
of employment, the last being given on February 7, 1968.
She was discharged on May 13, 1970, and the reason
assigned was low production.
Castro signed a union card on April 6, 1970 She solicited
on behalf of the Union and participated in a downtown
demonstration on May 9, 1970. She had eight union
stickers on her automobile containing the words "Go
Union ACWA." Castro's solicitation of employees consist-
ed of talking to two girls at the plant and two employees
outside the plant and passing a union card to one
employee. She testified that on the day of her discharge
and about 25 minutes before discharge, she wrote on the
reverse side of a pink production slip the words "ACWA at
Farah " With tape she stuck this to her sewing machine.
The piece of paper was 9 1/2 inches long and 3 inches high.
She taped the paper on the side of the sewing machine
table. She testified that she placed this there because earlier
that day some employees had solicited her to purchase a
"happy" button distributed by others opposed to the
Union.
On May 13, 1970, at about 10.20 a.m., Castro's machine
broke down. She turned on the signal for a mechanic, but
one did not come She then approached her supervisor,
Johnny Mansour, and he called a mechanic. Castro started
sewing again at about 11:30. A few minutes later, Plant
Supervisor John Isaac came to her machine and asked her
why she had done only 15 items as of that time and she
replied that this was the usual amount that she had
completed by that time. He told her that she was not doing
enough work and he would have to let her go.
Of the 14 operators performing the samejob function as
Castro, Castro had the lowest production. Her poor work
record is further evidenced by the fact that she received no
wage increase in the last 2 years and 3 months of her
employment and by the fact that her Christmas gratuities
in 1968 and 1969 were substantially less than in 1967-$7
and $10 for the last 2 years and $41.50 for 1967. Christmas
gratuities are based on length and caliber of service and
normally increase from year to year Also, her 1970
production record shows several notations of reprimands
regarding "low production" and "no improvement" made
throughout her 4 1/2 months of employment in this year
The union demonstration in downtown El Paso occurred
on Saturday, May 9. Part of it was on television and it
involved approximately 200 persons. Castro did not wear a
union button and did not solicit actively at the plant. The
General Counsel contends that Respondent must have had
knowledge of her union activities because of the sign she
placed on her desk the morning of her discharge and/or
because of her participation in the demonstration on May
9 and/or because of the sticker that she placed on her
automobile. Both Mansour and Isaac credibly testified that
they did not see the sign Castro placed on her workbench
that morning nor had they seen her on television in
connection with the demonstration on May 9. On May 14,
1970, the Union sent Respondent a telegram listing
employees who were members of the Union and on its
committee and the list includes the name of Rosa Maria
Castro; but this was the day after Castro's discharge.
Castro's production was substantially below that of most
of the other sewing machine operators doing the same type
of work, but her production had been low throughout 1970
(a record of her production in prior years is not in
evidence) A question arises as to why Respondent retained
this employee for 3 1/2 years if her production in prior
years was no better than it was in 1970 and then discharged
her about 5 weeks after she joined the Union; but in view
of the extreme poorness of her work record, as further
evidenced by her lack of wage increases and reduction in
amount of Christmas gratuities, I find that she was
discharged for the reason assigned rather than union
activities.
J Discharges Related to Absenteeism or Lateness
1. Discharge of Hector Caballero and Roberto
Rodriquez on November 29, 1969
The reason assigned for the discharge of Hector
Caballero and Roberto Rodriquez on November 29, 1969,
was their failure to report to work on Friday, November
28, the day following the Thanksgiving holiday without an
adequate excuse. Respondent has had a rule for some time
that an employee will be discharged if he does not report
for work following a holiday or on a Monday, Friday, or
Saturday unless he has an acceptable explanation for his
absence. Normally, such employee may reapply for work
as a new employee at any time after 2 weeks following such
termination.
Both Caballero and Rodriquez live in the town of San
Elizario which is about 20 miles from the Gateway plant.
On Thanksgiving Day, November 27, 1969, it snowed in
the El Paso area and it snowed again on Friday, November
28. Since September 1969, Rodriquez had been riding to
and from work with Caballero. Their reporting time is 7:30
a.m. each workday. On Friday, November 28, at about
7:30, Caballero called the plant and talked with his
supervisor, Joe Serna, and told him that he was having car
trouble and that Roberto Rodriquez was with him. Serna
told him, "Well, come to work as soon as you can."
Caballero then picked up Rodriquez shortly after 7:30
a.m. The route he followed to work goes through the towns
of Socorro and Ysleta, and from Ysleta he turns to
Interstate Highway 10 On Friday morning, they had
proceeded about 5 miles to the outskirts of Socorro when
Caballero's truck slid off the highway. They spent about 30
minutes trying to get it back on the road but they were
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to do so. Caballero then walked to a house nearby
and called Serna and told him that they had skidded off
the road and could not get his car out. Serna told him to
come to work as soon as he could.
Caballero and Rodriquez tried for a little longer to get
the truck out of the ditch but were not successful. They
then proceeded to walk back to the house of Caballero,
cutting through fields. Caballero had his father dnve his
automobile to the scene of the accident and they attempted
to pull the stuck truck from the ditch but were unsuccess-
ful. They then proceeded to the town of Ysleta and
obtained a tractor from a brother-in-law of Caballero.
With this, they were able to get the truck out of the ditch.
The time was shortly after noon . As the battery of the truck
was dead , they towed it to Ysleta. They were able to get the
car started with jumper cables. They then returned to their
homes in San Elizario. The time now was about 1:45 p.m.
They were dirty and wet and decided that there will be no
point in going to work at that late hour since it would
require about 45 minutes to make the trip , and this would
leave little time left in the workday.
The next morning they reported for work at 7:30 a.m.,
but their timecards were not in the rack They waited to
talk with Serna . A number of other employees had failed to
report for work on the pnor day and were also waiting to
talk with a supervisor.
Before talking with Caballero and Rodriquez, Serna
called Vice President Chemali and told him that they had
called him twice on the pnor morning, one time to tell him
that they had car trouble and a half hour or so later one of
them called to say that the car was stuck and that therefore
he "had two stories ." Chemali and Serna went to the hall
where the two employees were waiting , and Chemali asked
them why one had called in and said they had car trouble
and the other called in about 30 minutes later and said they
were stuck . He asked, "Now, what is the story?" Caballero
said that what they were trying to say was that the car
trouble was that the car was stuck Chemali said that it
seemed to him that they could have gotten the car out and
managed to come to work by noon . Caballero said that it
took all day; that they had to get a tractor to pull it out.
Chemali told them that they should have been able to get
the car out in half a day and gotten to work by noon; that
they had not made any effort to come to work . He testified
that as far as he was concerned they just took the day off,
so he discharged them 18
Rodriquez and Caballero started to work for Respondent
in January and March 1969, respectively ; Rodriquez as a
cleanup man in the shipping department and Caballero as
a puller. Each received two wage increases . Both signed
union authorization cards on October 22, 1969, and
Caballero was included in the union telegram of November
26, 1969. Rodriquez testified that he was not at the union
meeting on the night this telegram was signed by the
employees . Rodriquez attended only two or three union
meetings and asked three or four friends tojoin the union.
He distributed no authorization cards. I find that Respon-
ix Caballera 's testimony is contradictory as to whether he called in once
or twice and for this reason and the standpoint of plausibility some doubt is
cast on the credibility of some of Caballera's testimony , and I find the facts
dent had no knowledge of the union activities of Rodri-
quez.
Rodriquez also explained that a reason he did not call in
when they reached home after the accident was that
Caballero had already called once , and he had been told
by Caballero that Serna said it was all right and to make it
to work if he could
Respondent 's record of application of the rule about
absences before or after holidays is as follows: In 1968,
three employees were discharged for being absent before or
after the Thanksgiving holidays. In 1969 there were no
discharges for absences in connection with the Fourth of
July holiday or Labor Day holiday; following the Thanks-
giving holidays in 1969 , however , 15 employees were
terminated for absences-3 from the Third Street plant, 6
from the shipping department of the Gateway plant, and 6
from phase II of the Gateway plant . In 1970, 10 employees
were discharged for absence after the Fourth of July
holiday; 3 employees were discharged for absence after
Labor Day, and 1 employee was discharged for absence
following Thanksgiving. There seems to be an inordinate
number of discharged after Thanksgiving in 1969. The
weather conditions that prevailed in the El Paso area
during this period could have accounted for an increase in
number of absences , and at the same time this condition
should have been an acceptable explanation for many of
the absences . The purpose of the rule was to prevent any
tendency of employees to take long weekends or long
holiday periods; absenteeism before and after weekends
and before and after holidays had been a problem for
Respondent
The issue here is whether or not Respondent applied the
rule more strictly in November 1969 as part of its
tightening-up program of retaliation because of the union
activities of employees or whether it was applied as it
would have been in the absence of union activities in the
plant.
Serna and Chemali thought Caballero and Rodnquez
were not telling the truth with their "two stories," when in
fact they were. Also, Chemali testified that he thought that
with the problem they reported , they should have been able
to correct it and get to work by noon . Caballero and
Rodriquez were in fact out of the ditch shortly after noon,
and in Ysleta they were about half way to the Gateway
plant Having been working with a stuck truck most of the
morning, they were muddy and wet apparently in need of a
change of clothing.
In view of the fact that Respondent had, about 30 days
prior to this , discharged the instigator of the Union and
had started a program of tightening up work rules and
work standards, as evidenced throughout this Decision,
and in view of the extraordinarily high number of
discharges made in application of this rule in November
1969, I am convinced and find that in the absence of the
union activities in the plant at this time , Chemali would not
have been so strict and suspicious and of a closed mind as
to the explanation of Caballero and Rodnquez for their
absence on the Friday following Thanksgiving in 1969. I
to be as I have set them forth in the body of this decision I do not credit the
testimony of Caballero that Serna told him that if he could not get his truck
out and could not make it work , it would be all right
FARAH MANUFACTURING CO. 699
find that they would not have been discharged under the
facts that existed herein in the absence of the union
activities in the plant.
2. Ruben Lucero discharged June 19, 1970
Lucero was employed in February 1967 at the Gateway
plant as a bundle boy. His immediate supervisor was Luis
Rico. The reason assigned for the discharge of Lucero on
June 19 was lateness in getting to his work station.
During his period of employment, Lucero received seven
merit wage increases and received Christmas bonuses in
1968 and 1969. He was very active on behalf of the Union.
He solicited and gave out authorization cards; he distribut-
ed about 100 union buttons; he wore about 4 union
buttons-3 on his apron and 1 on his left shoulder; he wore
a union T-shirt for about 2 or 3 months before his
discharge. He had union stickers on the bumpers of his car.
He signed a union authorization card on September 30,
1969, and signed the union telegram dated October 23,
1969. He attended all union meetings except two or three
and participated in the union parade and rally in May
1970.
On four occasions, he noticed President Farah just
standing and looking at him. He was told on one occasion
by a girl employee that Farah was watching him and when
he looked up he noticed Farah looking at him and then
Farah turned and looked another way. These occasions
occurred after the union telegram. Prior to the Union's
telegram, Lucero saw Farah about once a month or once
every other month in his work area. After the telegram, he
saw him almost everyday.
In April 1970, Lucero was subpenaed to be present at a
representation hearing involving employees of Respondent
in Case 28-RC-2023. The hearing was conducted on April
15, 16, 17, 20, and 21, and Lucero was present in the
hearing room during the last 4 days of the hearing. He
showed his subpena to Rico. At the hearing, Vice President
Chemali spoke to him.
The day after the representation hearing, Supervisor
Rico asked Lucero why was it that he was just barely on
time to work Lucero replied that as long as he was not
late, Rico could not say anything to him about it. This was
the first time anyone had spoken to Lucero about lateness
in getting to a work area.
A few days later Supervisor Goeldner and Vice President
Chemali came to Lucero and Chemali asked Lucero if he
had been engaging in any union activity that morning and
Lucero said that he had not. Then Chemali asked him,
"Didn't you pass any union button this morning?" Lucero
replied that he did. Chemali said that this was considered
to be union activity. Lucero told Chemali that as he came
out of the restroom that morning during the break period a
girl asked him for a button and he gave her some. Chemali
told him that this sort of activity could not be tolerated in a
working area at any time. Lucero said he thought he could
do this during the breaks and at lunch. He was told again
that he could not engage in this type of union activity in a
working area at any time. This incident is set forth in
paragraph D and found to constitute an unfair labor
practice.
The next person to speak to Lucero about lateness was
Victor Valverdi, a mechanic supervisor. This was in May
1970. On several occasions, Lucero would see Valverdi as
he came from the timeclock to his work area and Valverdi
would make a motion toward his watch. This particular
morning Valverdi hollered at Lucero and Lucero did not
pay any attention to him but kept on walking. Valverdi
caught up to him and asked why he had not stopped when
Valverdi called him. Lucero told him that he did not like to
be yelled at and that was the reason he had not paid any
attention. Valverdi told Lucero to follow him. They went
to the hallway and called Supervisor Victor Chemali.
Valverdi told Chemali that Lucero did not pay any
attention to him when he called him. Chemali asked
Lucero why he did not pay any attention and Lucero said
that he did not like to be yelled at. Victor Chemali then
told Valverdi not to yell at Lucero, and he told Lucero to
try to get there earlier in the mornings.
On the day of his discharge, June 19, Lucero got to his
work area dust as the bell was ringing. He punched the
timeclock that morning at 7.28 a.m. Valverdi came to him
and told Lucero to follow him. They went to the hallway
and waited for Victor Chemali. Chemali asked Lucero if he
did not understand before that he was supposed to be at
his work station by 7:30 and Lucero replied yes and said
that he was not late but had arrived at his work area at the
time the bell sounded.
Lucero does not have a machine or a table or an exact
place of work. As a bundle boy, hisjob is to pick up piece
goods and take them to a marker to be marked. He gets his
assignments on the day before. The timeclock is located
about 500 feet from his work area.
Lucero was late for work on only two occasions in 1970
and this occurred in the early part of February on two
succeeding days. It was due to car trouble; he called and
talked with Supervisor Ernest Goeldner and the lateness
was excused.
Starting with May 20 and continuing to June 12,
Supervisor Valverdi made notations on Lucero's pro-
duction record that he was"late to area" on eight occasions.
Employees Lucero, Guillermo Chavez, and Manuel
Porras testified that they have been told they are to be at
their work areas by 7.30 a m, but, if there was such a rule
prior to the union activities at the plant, it was not
mentioned or enforced. An employee is not late for work if
he punches in by 7:30 a.m. There is no contention that
Lucero was late for work at any time in 1970 except the
two excused latenesses in February. The first time that
lateness to the work area was mentioned to Lucero was his
first workday after the representation hearing in April
1970. Thereafter, and after 3 years and 4 months of
employment with seven wage increases, Respondent
became very concerned about the moment that Lucero
arrived at his work area. Supervisor Goeldner said it would
be pretty hard to walk 500 feet in 2 minutes; Lucero
testified that on June 19 he walked fast and arrived at his
work area just as the bell was sounding, and I find that he
did. Lucero's timecard is not in evidence, and there is no
evidence as to the exact moment he punched in on other
dates. I find that Lucero would not have been discharged
in this instance in the absence of the union activities in the
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant and in particular his presence at the representation
hearing conducted in April 1970.
3. Oscar Arellano discharged October 8, 1970
Arellano was employed by Respondent on January 23,
1968. He started as a presser and later became a mechanic
at the Paisano plant. He received four wage increases
during his employment, the last effective on February 25,
1970. Arellano was terminated on October 8, 1970, and the
reason assigned was primarily his repeated lateness, and
secondly, his poor work record. Arellano joined the Union
on May 13, 1970, and his name was included on the
Union's telegram of May 14, 1970. Thereafter, he solicited
on behalf of the Union and distributed authorization cards
and generally wore a union button.
The General Counsel contends that the reason assigned
for the discharge of Arellano was a pretext and that the
real reason was his union activities. The starting time for
mechanics at the Paisano plant is 7 a.m., Tuesday through
Friday, and 7:30 a.m. on Monday and on Saturday.
During 1970, Arellano was late for work on the following
occasions:
April 28, Tuesday-7:18
April 29, Wednesday-8 29
August 19, Wednesday-7.32
August 25, Tuesday-7:17
September 1, Tuesday-7.38
September 2, Wednesday-7:18
September 17, Thursday-7:24
October 8, Thursday-7:01
Supervisor Gustavo Lopez spoke to Arellano on the
occasions of his lateness and posted the fact of the lateness
on his production record. On one occasion, Plant Supervi-
sor John Isaac spoke to Arellano about his lateness. On
October 8, Lopez observed Arellano walking fast toward
his work station; Arellano had clocked in 1 minute late.
Lopez called Isaac and told him, "Oscar is late again."
Isaac told Lopez that he would take care of it.
Isaac then decided that he would discharge Arellano
because he had been talked to before about coming in late
and was late again, and also because he had received
reports from time to time from other supervisors about the
work performance of Arellano-that Arellano was having
difficulty fixing the sewing machines He called Vice
President Chemali and explained the situation to him and
secured Chemah's approval for the discharge. Isaac then
called Arellano and told him that his work performance
was very poor and that he was constantly coming in late
and was showing no improvement and therefore he was
being terminated.is
Supervisors Johnny Mansour and Jimmy McLaughlin
testified about instances of poor work performance by
Arellano. Mansour was the production supervisor at the
Paisano plant. McLaughlin is the quality supervisor at the
Paisano plant. In March 1970, Mansour made a notation
in the production record of Arellano that he had no hustle.
On this occasion, Mansour observed and concluded that
Arellano was not getting around to the machines and
trouble as quickly as he should. On another occasion, a girl
operator had to wait 30 to 45 minutes for Arellano to come
to her machine to repair it. When the girl reported that a
mechanic had not come to her machine, Mansour began
looking for Arellano and found him in another area talking
to another mechanic. This occurred on May 26, 1970, and
was entered by Mansour on the production record of
Arellano. On one occasion in July 1970, Arellano was
called back three times to repair the same machine.
McLaughlin testified that on one occasion a girl operator
complained that Arellano had worked on her machine for
4 days and she was still having difficulty with it
McLaughlin called Arellano and Arellano said he could
not repair the machine and that there was nothing wrong
with it. McLaughlin then called Lopez who sent the head
mechanic over to fix the machine. I find that Arellano was
discharged for the reasons assigned and not because of his
union activities.
K Discharges for Alleged Misconduct
1. Jose Velarde discharged November 6, 1969
Jose Velarde was employed by Respondent on April 20,
1968, as a packer in the shipping department and was
discharged on November 6, 1969; the reason assigned was
that he failed and refused to purchase some scissors or
clippers to replace a pair that had been lost or stolen and
which he needed in his work, after having been given a
direct order to do so.
Velarde was given merit wage increases on July 17 and
November 27, 1968, and on April 9, 1969. He signed a
union card on October 14, 1969, and his name was
included on the Union's telegram of October 29, 1969.
Velarde attended all union meetings after he joined the
Union; he passed out about 15 union authorization cards
in the central corridor of Respondent during lunchtime
and solicited there on behalf of the Union. On the day
following the union telegram of October 29, a fellow
employee stated aloud in the presence of Supervisor Arthur
Aguirre that Velarde had joined the Union.
Velarde testified that thereafter Aguirre started putting
pressure on him, but his testimony is very vague and
general in this regard, and insufficient to support a finding
as to this contention He testified that Aguirre told him he
was stacking his pants wrong, although it was the way he
had been doing it all along; that Aguirre told him he was
not keeping his tape machine organized; that this contin-
ued until he was discharged.
On November 4, 1969, shortly before quitting time,
Velarde noticed that his scissors were missing. Sometime
the next morning, November 5, he was looking for them
and Aguirre asked him what he was looking for. He told
Aguirre, and Aguirre told him to try to find them and, if he
could not, then to get some. In the afternoon, Aguirre
asked him if he had gotten his clippers and he stated that
he had not. Aguirre told him not to forget to get some and
to have them the first thing the next morning.
On the morning of November 6, 1969, Aguirre asked
'y I do not credit the testimony of Arellano that neither Isaac nor Lopez
made any mention to him on that day about his being late for work
FARAH MANUFACTURING CO. 701
Velarde if he had gotten his clippers, and he replied that he
had not. Aguirre told him that he had "better go get them."
Velarde said he had already bought one pair and was not
going to buy another pair.
The first pair of clippers is issued to a packer. Thereafter,
he obtains clippers from Respondent's office and the cost
thereof is deducted from the employee's pay.
Shortly before lunch, Vice President Chemali came to
Velarde with Aguirre and asked him if he had not been
told to get his clippers. Velarde replied that he had
forgotten to, and Chemali then told him that they did not
need him any more.
At one point in his testimony, Velarde testified that
Aguirre told him to get the clippers at the lunchbreak on
November 6, yet, he also testified that he did not get a pair
during the lunch period on the contention that the office is
empty at lunchtime as everyone is eating lunch. He also
testified that he understood the rule to be that they could
not leave their work and go to the office during working
time. I think it is quite clear that Aguirre told Velarde to go
to the office and purchase clippers on the morning of
November 6 and that he had told him to get some on two
occasions on the prior day. Velarde had to borrow clippers
from a fellow workman during the time he was without his
own. He had to have some to perform his work. They are
used to clip off threads on pants prior to packing. He was
also asked why he did not purchase a pair during the
afternoon break on November 5. He testified that "it didn't
occur to me because I was using the other clippers." I find
that Velarde was discharged for the reason assigned.
2. Manuel Bonilla discharged May 6, 1970
Bonilla was employed by Respondent in April 1967 and
worked in the shipping department as an order puller. He
received eight wage increases, the last two effective the
workweeks ending November 19, 1969, and March 18,
1970
Bonilla signed a union authorization card on September
30, 1969, and his name appears on the Union's first
telegram of October 22, 1969. He was active on behalf of
the Union and this information was known to Respondent.
He was a witness on behalf of the General Counsel in the
Adan Gonzales case in January 1970.
The reason assigned for his discharge on May 6, 1970,
was misconduct that occurred on that day During the
noon hour on that day, a large group of employees from
the shipping department went over in a group to that part
of the cafeteria where employees from the cutting room
were seated. They gathered around the cutting room
employees and urged them to join the Union and to come
to union meetings. Luis Alvarez spoke to the group in a
voice loud enough that they all could hear. The people
from the cutting room began to clap their hands and to
make noises Some of the employees from the shipping
room were walking up and down between the tables and
shouting "Viva la Union"; "Don't be afraid to sign."
Victor Chemali was in the cafeteria and observed this and
told the employees not to be hollering, parading, or
creating a disturbance and to move over to the side of the
room. Victor Chemali called Vice President Joe Chemali.
Vice President Chemali told him to bring the employees
into the main hallway. Three employees, Luis Alvarez,
Felipe Castaneda, and Valentin Lopez were still addressing
the employees. Victor Chemah told the group to go to the
hallway. Alvarez continued to address the other employees.
Victor Chemali asked him if he were refusing to do what he
was asked to do, and Alvarez replied that he was not
through talking. Alvarez then made a few more remarks
and joined the group going to the central hallway. In the
central hallway, the employees were lined up against the
west wall. Vice President Chemali came and told the
supervisors to take the names of the employees. He then
gathered the group around him and told them that
Respondent was not going to tolerate any parades, loud
yelling, or demonstrations; that employees went to the
cafeteria to relax, and at times there were buyers or
suppliers in there; that as long as they solicited for the
Union in an orderly way, they would not be bothered.
Chemali then repeating this in Spanish and told them to go
back to work. At that moment, Bonilla clapped his hand
and shouted "Yeah," as he started back to work. Chemah
called to Bonilla to stop, but Bonilla continued walking.
Supervisor Soza then called to Bonilla and cut across the
area and caught up with Bonilla and put his hand on his
shoulder or arm to stop him, whereupon Bonilla whirled
around, doubled up his fists, and drew his arm back.
Alvarez came over and, shaking his finger at Soza, stated,
"If you want him, call him by his name, but don't grab him
or touch him." Soza raised his hands up parallel with his
face and backed away. Bonilla testified that "Jaime
Villenueva got in front of me, so I wouldn't hit Soza
because I was angry." The situation was rather tense.
The employees returned to work and Vice President
Chemali told Bonilla to come to the office. He asked
Bonilla if he had any belongings in the shipping room and
Bonilla said that he had his glasses. Chemali sent someone
to get the glasses. While they were waiting, he asked
Bonilla, "Manney, I don't understand why you did this,
assaulted one of my supervisors." Bonilla replied, "Assault-
ing one of your supervisors, I didn't hit him, he grabbed
me, so if anybody grabs you from behind, you are going to
turn around to see who it is." Then Chemali stated, "Right
after we told you all not to make any more loud noises or
disturbances." Bonilla replied, "Well, I was happy, I didn't
know why I did it. I was happy, I thought I was going to
get fired, so it just came to me. I clapped my hands."
Chemali then told him he was discharged.
As previously mentioned , the situation was tense;
Bonilla ignored both Chemah and Soza when they called
to him; when Soza touched him, he turned around ready to
fight. If he was indeed in a happy mood when he clapped
and yelled, his other actions were certainly not consistent
with that mood. I find that Chemali had a reasonable basis
for believing that Bonilla was defiant in his conduct and
that he was discharged for this reason. I find that Bonilla's
discharge was not causally related to union activities or his
act of testifying in the Adan Gonzales case.
3. Lorenzo Rivas discharged May 28, 1970
Rivas was employed by Respondent in January 1970;
from the latter part of March 1970, until his discharge on
May 28, he worked under the supervision of Douglas
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ramey in the cutting room. The reason assigned for his
discharge was that he went into other areas not pertaining
to his work during working time and in spite of instructions
not to do so and he was disrespectful to his supervisor
Rivas signed a union card on January 10, 1970, and in
the first part of April he started wearing union buttons,
wearing six or seven at one time. He distributed about 50
union buttons to other employees and also he distributed
about 70 to 100 union authorization cards in the restroom,
parking lot, and the main corridor. On April 8, 1970, Rivas
received a 10-cent-per-hour wage increase.
In the performance of his work, usually once each day,
Rivas took a forklift truck and went into another area to
get some pants. On May 28, 1970, the day of his discharge,
he was directed to do this by Ramey. Because of some
construction work that was in progress near the main
corridor, Rivas was delayed while another forklift truck
moved a heavy beam that was lying in the hallway. He was
gone about 45 minutes and on his return Ramey asked him
why he had taken so long Rivas replied that he was
working, and stated, "You want me to go fast and run over
people."
Later the same day, Rivas went to another area to get
some bundles of pockets. He cut through a working area to
reach this place. On this trip he stopped to talk to an
employee in the adjacent working area about some boots
the employee was wearing. Ramey came up to him and
asked what he was talking about. He also asked the other
employee what they were talking about. They explained to
him that they were talking about the boots. Ramey told
Rivas that he was getting tired of telling him not to talk to
other employees out of his work area and during work
time. Rivas then stated, "If you don't like it, fire me."
Ramey then called Supervisor Erich Goeldner and told
him about it, Goeldner talked with Rivas. Goeldner told
Rivas that he heard that Rivas was giving Ramey some
trouble. Rivas replied, "Well, he is always following me, he
is always telling me not to talk to people." Goeldner
checked with Vice President Chemali about the matter and
then told Rivas that he would have to let him go because
he had been giving supervisors a hard time
Rivas had previously been warned about going into
other working areas during worktime and talking with
employees. He repeated this conduct on May 28 and when
reprimanded about it, he was unnecessarily flippant with
his supervisor In fact his remarks to Ramey when
reprimanded that morning were in the same vein. I find
that Rivas was discharged for the reason assigned and not
his union activities.
4. Johnny Rodriquez discharged June 5, 1970
Rodriquez was employed by Respondent on September
5, 1967 He worked in the cutting room in phase III at the
Gateway plant The reason assigned for his discharge on
June 5, 1970, was throwing a firecracker at two female
employees along the driveway between the plant and the
parking lot. It is also contended by the General Counsel
that Respondent attempted to isolate Rodriquez from
other employees and discriminatorily transferred him to a
less desirable job before discriminatorily discharging him.
Rodriquez was the most active supporter of the Union in
the cutting room. He signed an authorization card on
January 5, 1970, and started wearing union buttons in
March 1970. He increased the number he was wearing
until he had 20 to 30 buttons on at a time. He wore these
on a vest. Rodriquez's name was on the union telegram on
May 7, 1970. On May 12, 1970, Rodriquez, along with
employee Felipe Castaneda, addressed the cutting room
employees in the cafeteria on behalf of the Union.20
Castaneda was suspended for what occurred on this
occasion and Rodriquez was told to go back to his work.
No unfair labor practice was found in this regard. (See
para. L.)
During his period of employment of 2 years and 9
months, Rodriquez received nine wage increases, the last
was effective on April 8, 1970. In 1968 and 1969, he
received Christmas bonuses of $79 and $157, respectively.
Rodriquez's supervisors, Ben Donathan, Bernd Wolfinger,
and Erich Goeldner, all testified that Rodriquez was a very
good worker.
On February or March 1970, Rodriquez was changed
from the job of "shading" to "bandwinding." The General
Counsel contends that by this action Rodriquez was
assigned to less desirable work because of his union
activities and that it was a step backwards in job
progression. Shading requires more mental ability and skill
than bandwinding; bandwinding is more physical and
routine.
In about July 1968, Rodriquez was transferred from the
job of a spreader to that of bandwinding. In August 1969,
he was moved to the job of a shader and in February or
March 1970, he was moved back to the job of bandwind-
ing, where he remained until his discharge. This transfer
back to bandwinding was occasioned by the fact that
employee Hilario Loya went on sick leave. Rodriquez was
transferred to fill this position on the premise that he was
an experienced bandwinder. During the period that Loya
was out, the work for the bandwinders increased. To meet
this problem, new bandwinding machines were ordered
and also Supervisor Donathan discontinued the practice of
the winders getting their own material and assigned
employees to perform this function for them so that
bandwinders would not lose time at their machines. There
were five bandwinders. Rodriquez remained as a bandwind-
er after the return of Loya. There was no change in pay in
the two jobs, and, in fact, Rodriquez received a 10-cent-
per-hour wage increase in April 1970.
Rodriquez was transferred from shading to the job of
bandwinder before he started wearing a union button.
Although I find therein that Rodriquez was discriminatori-
ly discharged and although Respondent could have had
ulterior reasons in making the job change as to Rodriquez,
yet at this point of time his union activities were not as
extensive as later and the actions taken by Respondent had
business justifications. I, therefore, find that the evidence is
insufficient to find that the transfer of Rodriquez from
shading to bandwinding was discriminatonly motivated.
20 Transcript is hereby corrected to show correct spelling of name of
Felipe Castaneda to be as appears herein
FARAH MANUFACTURING CO. 703
Also, I find that the evidence is insufficient to support the
contention that the assignment of another employee to get
material for the bandwinders was done in an effort to
isolate Rodriquez because of his union activities.
On the day of Rodriquez' discharge, June 5, shortly after
the noon hour, employee Maria Castaneda came up to
Vice President Chemalt in the hallway and told him that as
she was on her way to the plant clinic a car passed by her
in the driveway and a firecracker was thrown at her and
that when the explosion occurred she twisted her neck and
was in great pain. Employee Maria Garcia was with her.
Chemalt asked if she knew who did it and she said that it
was the real big guy that wears a jacket with a lot of union
buttons on it. They did not recognize any other occupant
of the car Chemalt sent her on to the clinic. At the time,
Maria Castaneda was on the way to the clinic to get one of
her shots which she gets every 3 days. After she had visited
the clinic, Chemalt sent her and Garcia into the cutting
room with Supervisor Donathan to see if she could identify
the person involved. This was before the end of the lunch
period. They returned and said that they did not see him.
After the lunch period was over, Chemalt called
Rodriquez and asked him if he had thrown a firecracker at
some girls during the lunch hour and he replied that he had
not. Chemalt told him that two girls said that he had
thrown a firecracker at them. Rodriquez then said he knew
who it was-that it was the two girls who were in the
cutting room at noon with Donathan. Apparently, Rodri-
quez had seen them and they had not seen him Chemali
asked him again if he had thrown the firecracker and
Rodriquez replied that he did not Then Chemalt asked
him if he was in a car leaving the plant at noon and he said
that he was. While Chemalt was talking with Rodriquez, he
called the supervisor in the department where Maria
Garcia worked and had him send her over to the main
corridor in the Gateway plant. She came into the corridor
while Chemali was talking with Rodriquez, and after he
sent Rodriquez back to work, he asked her if Rodriquez
was the man who threw the firecracker. She replied that he
looked like the man, but that without his dark glasses she
'could not be sure Chemali then decided that since
Rodriquez fitted the description in that he was a big man
with long sideburns and had a jacket with union buttons,
he would discharge him for the incident. He then had
Rodriquez brought back to the hall and told him that he
was going to discharge him for throwing the firecracker. As
Rodriquez was leaving the building after being discharged,
he put on sunglasses and Chemalt had Maria Garcia come
down from her work area and go outside and take another
look. This time she reported that Rodriquez was the man in
the car at noon.
Maria Castaneda was unable to participate in this
further conversation or identification as she had become
hysterical when she returned to work that afternoon and
was taken to the clinic to recuperate. Chemali testified that
it was his understanding that Castaneda had been taking
some shots of some kind and also was given a pill on her
visit to the clinic this day.
On June 5, Rodriquez went to lunch in a car driven by
Danny Valencia; they had to stop at a crosswalk between
the main plant and the parking lot to let employees go by;
and then, after they proceeded, he heard a noise like a
backfire coming from behind them. When Chemalt was
talking to him in the hallway, Rodriquez asked Chemalt to
talk to the persons who were with him in the car. The only
person that Rodriquez recognized at the crosswalk was
Luis Alvarez, who was passing by at the time. He did not
see Castaneda or Garcia on this occasion but had had
words with Castaneda in the central corridor on prior
occasions. Castaneda and Garcia were opposed to the
Union and had seen Rodriquez soliciting for the Union on
prior trips through the central corridor on their way to the
clinic.
It seems very unlikely that Rodriquez or anyone in the
car would have thrown a firecracker or other explosives out
of the car at this time and on this occasion; he could not
have known that the two female employees involved would
have been at the crosswalk prior to arriving there. To toss a
firecracker or other explosives at that point would have
taken some preparation and premeditation. From all
indications, Maria Castaneda is a very nervous person and
was having physical problems of some sort necessitating a
shot every third day. It seems more plausible that a
backfire of an automobile occurred; yet Chemalt took the
word of Castaneda and Garcia that it was a firecracker and
did not talk to the other two occupants of the automobile
about the incident. To come to a decision regarding the Job
future of an employee with Rodriquez' outstanding work
record for the reason that he allegedly threw a firecracker,
and on such little evidence of the likelihood that a
firecracker was in fact thrown, and without investigating it
further, and in fact before even a positive identification
had been made, indicates the existence of a more
underlying motive for his termination. In consideration of
this and Rodriquez' extensive union activities and Respon-
dent 's illegal efforts to thwart union activities in general, I
find that Respondent utilized the alleged firecracker
incident to terminate Rodriquez for his union activities.
Respondent contends that Rodriquez is not eligible for
reinstatement because of conduct that occurred after his
discharge. He is alleged to have assaulted employee David
Espinoza on the evening of June 5. He is alleged to have
thrown parts of a dead rabbit at employees Yolando
Garcia and at Maria Castaneda on November 4, 1970, and
he is alleged to have assaulted a supervisor at one of the
other plants on August 14, 1970. He was fined $25 for the
assault on Espinoza and a total of $400 on the incidents
involving Garcia and Castaneda, although this matter is on
appeal. The charge against Rodriquez for the assault
against Supervisor James Murphy was dismissed for lack
of identification at the scene of the assault in view of
evidence presented that Rodriquez was at the union hall
that evening.
David Espinoza circulated a petition in the central
corridor against the Union. Rodriquez was also in the
hallway and was aware that Espinosa was doing this. After
work on June 5, Espinosa and a friend stopped for a beer
at the Tahitian Bar. While they were there, a person came
into the bar that Espinosa did not know but had seen
before. This person told him that Jesus Martinez was
outside having trouble with his car and wanted to know if
Espinosa could come out and help him. Espinosa went
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside to see Martinez Rodriquez was outside and came
up to Espinosa and started punching him two or three
times on the head. Espinosa stumbled and fell and his
glasses were broken.
James Murphy testified that on August 14, 1970, at
about 8.45 p.m. as he was leaving the Third Street plant, a
red and white 1955 or 1956 Chevrolet station wagon drove
by with several people in it and someone hollered at him.
The car stopped and backed up when he answered the call.
He walked toward the car. As he approached the car, the
driver opened the door and got out and walked toward
him. Murphy did not recognize the person and started to
leave and the person hit him on the ear and kicked him in
the groin. Murphy then tried to get back to the plant office
and another person jumped on his back and was hitting
him on the top of the head. The men then got in the car
and drove off as a guard came out of the plant. Murphy
went to a hospital and was checked over and was told that
he was not hurt badly enough to be hospitalized. He was
under a doctor's care for 3 weeks, however, as his testicles
were swollen and discolored and he had a small cut on his
ear.
Murphy described his assailant as being about 6 feet or
more, weighing about 240 pounds, with black hair that was
combed back, a beard but not a heavy beard, a round face,
and was a heavy type person. He went to the police
department and after looking at a set of 14 or 15 pictures
he identified one of Johnny Rodriquez as his assailant
Prior to this time, Murphy had never seen or knew Johnny
Rodriquez. Also, Murphy visited the Gateway plant on
August 27 while Johnny Rodriquez was engaged in
picketing. He testified that he recognized Rodriquez as his
assailant.
On November 4, 1970, employees Yolanda Garcia,
Manuela Morales, and Maria Castaneda were passing out
antiunion leaflets outside Respondent's Gateway plant.
Rodriquez was riding in the back of a pickup truck that
went by these employees. Pieces of a rabbit were thrown
from the truck; one piece struck Garcia and another piece
came very near to Castaneda. There were two other
persons in the back of the truck with Rodriquez Although
there is a conflict in the testimony as to whether or not he
threw the pieces of the rabbit, I find for the purposes of
this proceedings that he is the one who threw the pieces.
The Murphy incident is the most serious of these
incidents. Although the court of law could not conclude
from the evidence presented to it that Rodriquez had been
sufficiently identified as the assailant, yet he was identified
by Murphy as his assailant, and his description of the
assailant fitted Rodriquez. I find that Respondent had
sufficient basis and was warranted in its judgment that
Rodriquez had assaulted Murphy. As Respondent con-
tends that this incident constitutes just cause for discharge
and for refusal to reinstate, it is an issue before me as to
whether or not Rodriquez committed the assault on
Murphy. Although in another proceeding a court found the
evidence of assault to be insufficient, I must make a
determination from the evidence before me and cannot
adopt or be bound by the findings of fact or conclusions of
another tribunal. From the evidence before me and for the
purpose of this proceeding, I find that Rodriquez did
commit the assault and that it constituted just cause for
discharge and for refusal of remstatement.21
The assault on Espinoza on June 5 occurred off the
company premises and was a matter between two
employees for which the aggrieved employee had redressed
before a state tribunal. Had the fight or assault occurred on
the company premises, Rodriquez would have been subject
to discharge under company rules; but Respondent has no
rules governing or policing fights or assaults between
employees off its premises and that do not affect the
operations of its plant. I find that Rodriquez' assault on
Espinoza on June 5 does not justify a refusal of
reinstatement for the discriminatory discharge of him on
that date.
Also, I find that the incident of Rodriquez throwing
pieces of rabbit at two employees on November 4, 1970,
not to be of such a nature as would relieve Respondent of
its obligation to reinstate Rodriquez for its unfair labor
practice against him.
5. Luis Alvarez discharged July 10, 1970
Alvarez was employed by Respondent in 1950 and was
discharged on July 10, 1970. During this period he spent 2
years in military service. His rate of pay when discharged
was $3.40 per hour. He received Christmas gratuities of
$442 in 1967, $595 in 1968, and $609.50 in 1969. In view of
his high rate of pay, the large gratuities he was receiving at
Christmas, his length of service, and the testimony of his
work ability, there is no question as to the value of Alvarez
to Respondent as an employee.
There is no dispute as to Alvarez' s union desires and
activities, and as pointed out by Respondents' attorneys in
their brief, his activities on behalf of the Union during the
9-month period from October 22, 1969, to July 10, 1970,
were exhaustive. Alvarez was an acknowledged leader of
the Union's organizing campaign at the Gateway plant. He
was also a witness in the Adan Gonzales case and was one
of the two employees illegally interrogated by Supervisor
Joe Serna in October 1969. The reason assigned for his
discharge on July 10 was insubordination-his refusal to
lower his voice while making a speech to employees in the
central hallway during the noon hour, after being request-
ed to do so three times by Vice President Chemah The
General Counsel also contends that Alvarez was discrimi-
natorily transferred on November 17, 1969, to a more
arduous and less agreeable job task. The change that
occurred at that time was from the position of a checker
and working with pants being closed out or sold as
irregulars to the job of handling store returns, that is,
merchandise returned by customers. The reason assigned
by Respondent for making this job change was that a
procedural change in paperwork eliminated most of the
time required by Alvarez as a checker to complete this
function; there was a need for additional work in the store
returns area, and during his years of employment Alvarez
had had considerable experience in that position. The
21 Carthage Fabrics Corp, 101 NLRB 541 , Alabaster Lime Co, 194
NLRB No 173
FARAH MANUFACTURING CO
General Counsel contends that the latter job is more
arduous because it required Alvarez to stand most of the
day, whereas as a checker he was allowed to sit about
three-fourths of the day; also the work of a checker was
not as confining There was no change in rate of pay or
employee benefit. Significant or material differences in the
two jobs would be difficult to assess. The most significant
difference in the two jobs is that in store returns Alvarez
was confined to one area of the shipping room and had
little contact with other employees. His prior job was to
check the packing slips made out by the packers and to
check the stenciling on the boxes going out for shipment;
once a month he would take inventory of closeouts and
irregulars . In store returns, his job was to open returned
packages of garments and inspect them and make out
claim memos. During the first 5 days that Alvarez was in
the new job, there was a stool that he used. Alvarez
testified that it started disappearing and he asked Supervi-
sor Joe Serna if he was taking it, and Serna replied that
whoever needed it in the office was taking it into the office.
The procedural change that eliminated many of the
hours that Alvarez was spending in the checkingjob was as
follows- Prior to the change in November 1969, about 75
percent of Respondent's customers were being furnished
packing slips which broke down the order as to quantity by
style, color, and size. The preparation of these slips and the
checking of them for accuracy was taking considerable
time. The new procedure was that packing slips were
furnished only to about 25 percent of the customers and
then only if they needed them. Also, the new slips did not
specify each item ordered, that is, by color and different
sizes
Under all the circumstances, I cannot find that the
transfer of Alvarez from the checking job to the store
returns Job was discriminatory.
As previously mentioned in this decision, much solicita-
tion for and against the Union occurred in the central
hallway during the lunch periods and the break periods.
During the period of about 6 weeks prior to his discharge,
Alvarez made a number of speeches to employees gathered
in the hallway. On June 10, the day of his discharge he was
so engaged along with Felipe Castaneda. There was also a
female proponent for the "happies" making a speech about
60 feet down the hallway. Apparently , in an effort to be
more convincing and to be heard by more employees in the
hallway the speakers were addressing the employees in
loud tones. Vice President Chemalf and other supervisors
were walking down the hallway telling employees to move
to the sides of the hall to keep the passageway open. He
told the speakers to lower their voices. There were many
employees in the hallway this particular day. Alvarez
arrived in the hallway at about the time that Chemalf was
telling Castaneda and the female proponent for the
"happies" to lower their voices. Alvarez testified that
Castaneda lowered his voice and said that he could not
hear him. Then Alvarez started speaking. Chemalf came
down the hallway to where Alvarez was speaking and told
the employees not to block the passageway. Alvarez told
the employees.that the reason Chemalf was standing there
22 Alvarez testified that he did lower his voice after each of the orders to
do so, but if he did so, it was not to a perceptible degree, and I find that he
705
talking was because he was trying to drown Alvarez out so
that he could not be heard, that Chemali did not want the
people to hear what he was saying. Chemalf told Alvarez to
lower his voice, but Alvarez continued to talk in a loud
voice ignoring Chemali. A little later, Chemali told Alvarez
again to lower his voice. Alvarez stated to his audience that
Chemali was trying to shut him up and that there was such
a thing as freedom of speech and that he had that right and
as long as he had that right he was going to keep on
talking; that if he ever was fired for that, he was pretty sure
that the United States Government would protect him and
that the union lawyers would back him up. Three times
Chemali told Alvarez to lower his voice, that he was too
loud, but Alvarez ignored these instructions or orders.22
The bell ending the lunch period sounded shortly thereaf-
ter and the employees returned to work.
Chemali told Supervisor Norman Ekery to bring Alvarez
to the main hallway. Chemali told Alvarez that he had
been speaking too loudly. Alvarez replied that he had to
talk loud to be heard. There were about 100 employees in
his audience. Chemalf told Alvarez that he was making him
look bad by not obeying his orders and that since he had
ordered Alvarez to lower his voice and Alvarez had not
done so, he was being discharged.
Under all the circumstances in this case, I find that
Alvarez was not discharged for his union activities but for
his failure to comply with the order to lower his voice. It is
true that he was engaged in union activity at the time
Speechmaking was in fact freely engaged in by prounion
and proemployer employees. It is reasonable to expect that
where two employees are speaking to the same general
group and endeavoring to present opposite points of view
that each would desire to be heard above the other.
Although I am inclined to the view that the disciplinary
action taken in this case is extreme in view of the tenure of
employment of Alvarez with Respondent, nevertheless I
believe Chemali was motivated by a need to maintain
order in the hallway and to prevent the disruptive effect of
extremely loud speechmaking and that the discharge action
was taken for this cause and not the union activities of
Alvarez.
6. Gilbert Minjarez discharged July 17, 1970
Minjarez was employed by Respondent on March 18,
1969. He worked as a pants separator under the supervi-
sion of Salvador Ybarra and Ernest Goeldner. He received
three wage increases, the last being effective the week
ending March 11, 1970. The reason assigned for his
discharge is that he initiated a fight with another employee.
Mmlarez signed a union card on February 6, 1970, and
his name appears on the union telegram of May 14.
Following the receipt of the telegram, he began wearing
four to five union buttons at one time and from time to
time he wore a union T-shirt. He attended union meetings,
engaged in solicitation in the central hallway, had union
stickers on his automobile, and participated in the
demonstration in downtown El Paso in May 1970. He
continued to speak in a very loud tone Minjarez also testified that Alvarez
lowered his voice
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passed out union buttons, authorization cards, and T-
shirts
Other separators of pants that worked along with
Minjarez were Ladislado Sifuentes and Helidoro Hmojoso.
They worked on several tables and would carry pants from
one table to another . The tables were fairly close together.
Starting in January 1970, MmJarez began having difficulty
with Sifuentes . Minjarez could not account for this except
from a remark made by Sifuentes inquiring if Minjarez was
a hippie and from the fact that at the Christmas party
Minjarez wore a headband . Sifuentes started calling
Minjarez bad names , making movements toward him as
though he were going to hit him, and attempting to trip
him. On about three occasions , Sifuentes asked Minjarez to
come to the bathroom to fight Also he told Minjarez that
he would get him after work.
In March , Minjarez went to Supervisor Ybarra and told
him that Sifuentes was calling him bad names , trying to hit
him, and hindering him in his work , and he asked Ybarra if
it were possible for him to separate them Ybarra said that
he would talk to Sifuentes. Minjarez saw Ybarra talk to
Sifuentes , but he did not hear what was said . Sifuentes,
nevertheless , continued to bother and annoy Minjarez.
Minjarez told his leadman of the situation and asked him
to inform Ybarra. On another occasion , after an exchange
between Minjarez and Sifuentes , Minjarez observed
Ybarra talking to Sifuentes and then Ybarra came to
Minjarez and told him that , if Sifuentes picked on him any
more, to be sure and let him know.
In May 1970, Minjarez again brought the matter to the
attention of Ybarra and asked him if he could please
separate them. Ybarra said that he would talk to Sifuentes.
On July 17, 1970 , Minjarez had about 20 pairs of pants in
his arms that he was carrying to place on a table to
separate . Just as he was putting them down , Sifuentes came
by with a load of pants in his arms and as he passed
Minjarez he hit him on his side with his elbow causing
Minjarez to drop the pants on the table and crouch to one
side. Minjarez then pushed Sifuentes . Sifuentes told
Minjarez, " ' I'm going to knock the s- - - out of you,' "
and he struck at Minjarez but did not hit him . Minjarez
rushed him and tried to pin his arms down and pushed
Sifuentes backward . Other employees including Hinojoso
separated them . This occurred at about 9 a.m., shortly
before the morning break.
A short time later that morning, one of the girl
employees in the area called Supervisor Ybarra and told
him that there had been a fight between two of the boys
and she pointed to Minjarez and Hinojoso . Ybarra called
Ernest Goeldner and told him of this and he told Ybarra to
bring Hinojoso to the clinic . Hinojoso told them that the
fight was between Minjarez and Sifuentes ; that Sifuentes
was carrying a bundle of pants from the first separating
table to the second separating table ; that he bumped into
Minjarez ; that Minjarez pushed him; that Sifuentes lost his
balance but got up and pushed Minjarez; that they started
wrestling.
Goeldner then told Ybarra to take Hinojoso back 1o
work and to bring Sifuentes . Sifuentes told them that as he
was carrying one bundle of pants from one table to another
he accidently brushed into Minjarez , that Minjarez shoved
him and he shoved Minjarez back; that Minjarez hit him
and they started fighting.
Sifuentes then returned to work and MinJarez was called.
Goeldner asked Minjarez what happened and Minjarez
said they had a fight . Goeldner then said , "You know what
happens when you fight on company property?" Minjarez
stated that Sifuentes has had it in for him for sometime and
that he has told Ybarra about it . Goeldner asked Ybarra if
this is true and Ybarra stated that it was and that he had
talked to both of them in May and that he has heard
nothing about it since that time and thought the matter was
settled . Goeldner then stated , "You know, Sifuentes said
that he brushed you accidentally with a bundle of pants
that he was carrying, or brushed by you accidentally when
he was carrying a bundle of pants, and you shoved him,
and that you both got into a fight , is this more or less what
happened?" Minjarez replied , "Yes sir, more or less."
Goeldner then stated , "You more or less shoved Sifuentes,
then he started the fight?" Minjarez replied , "Yes, sir."
Goeldner then stated , "Ybarra, did you hear that he
shoved Sifuentes and started fighting , is that nght?"
Goeldner then called Joe Chemali and told him of the
circumstances of the case and he agreed that they should
discharge Minjarez. Then Goeldner told MmJarez he was
discharged.
Sifuentes testified that he and Minjarez would kid
around and call each other bad names and that Minjarez
could not take it. Sifuentes testified that he did not
discontinue this practice after he saw that Minjarez could
not take it . Sifuente did not wear a union button nor did he
wear a happy button In view of the relationship and
conduct of the two employees, I do not credit the
testimony of Sifuentes that it was accidental that he hit
Minjarez with his elbow on July 17.
Respondent has a rule or policy that if it can be
determined which employee has started a fight, that
employee is to be discharged for fighting on company
property . If it cannot be determined which of the two
employees started the fight , then both employees are to be
discharged. It is noted that Goeldner did not ask Minjarez
for his version of the fight but told him what he had been
told and asked Minjarez if this was more or less correct.
Apparently, Goeldner considered Minjarez's shove of
Sifuentes as the start of the fight or at least the first
aggressive contact that started the fight. It appears that
because of the prior reports of the difficulty between these
two employees and the prior reports by Minjarez of the
conduct of Sifuentes , that Respondent was too quick to
accept Sifuentes ' statement that his contact with Minjarez
was "accidental" or "an accident ." This, being the first
bodily contact, was passed off too quickly as accidental, in
view the prior relationships of these two employees. In
view of this and the nature of the interrogation of Minjarez
by Goeldner , I find that the decision to terminate Minjarez
was a pretext.
Following the discharge of Minjarez and at a hearing
before the Texas Employment Commission , Respondent
learned for the first time that during the break on the
morning of July 17, Minjarez and Sifuentes had a fight in
the restroom . There was no further investigation after that
time of this incident to determine if one or both parties
FARAH MANUFACTURING CO.
were responsible. Sifuentes is still employed by Respon-
dent. I find that this incident does not constitute a basis for
denial of reinstatement to Minjarez.
L. Felipe Castaneda Suspended May 12, 1970
Castaneda started working for Respondent in May 1960.
He was a marker in the marking room of the cutting
department. He joined the Union on April 1, 1970, and
became very active on behalf of the Union. His name was
on the Union's telegram of May 7, 1970, and he wore a vest
with 25 to 30 union buttons in it.
On May 12, 1970, Castaneda was suspended for the
remainder of that day following the morning break at
about 9:30 a.m. The reason given for the suspension was
the fact that he made a speech to the persons who were
assembled in the plant cafeteria. The General Counsel
contends that this was a discrimination against him
because of his union activities.
The essential facts are not in dispute., Castaneda had
obtained a copy of the Trial Examiner's Decision in the
Adan Gonzales case, which issued in May 1970. On May
12, he took it with him into the cafeteria at the morning
break, he called for the attention of those in the cafeteria
and started reading the document, or parts of it, to them
and talking to them about unionizing the plant. Supervisor
Victor Chemali approached Castaneda and told him that
he could talk to employees at a table but that he could not
address the entire group Castaneda continued to address
the group for a few moments and then went with Chemah
to the main hallway where they were met by Vice President
Chemali. Johnny Rodriquez, who had been talking to
employees in another part of the cafeteria, came along with
them into the hallway. I find that Victor Chemali had not
directed him to go along but that he came along to see
what was going to happen to Castaneda.
Vice President Chemali told Castaneda that just the
week before he had told employees that Respondent would
not tolerate any shouting or disturbance in the cafeteria
and that for having done this, he would be suspended for
the remainder of the day. Chemali told Rodriquez to go
back to work.
There is no question but that Castaneda was engaging in
union activities in the cafeteria and he was suspended for
these activities. But, on the prior week, employees had
engaged in speechmaking in the cafeteria and Respondent
had reprimanded them for this and told them that it would
not be tolerated. The central issue here is whether or not
Respondent can limit union activities in this way-that is,
preclude speechmaking in the plant cafeteria during break
periods.
I find that Respondent can place reasonable limitations
on union activities of employees in the plant. Since not
only employees use the cafeteria but also visitors and
customers, and since those in the cafeteria are engaged in
eating or drinking, Respondent's rule precluding speech-
making or demonstrating in the cafeteria is a reasonable
one. Soliciting on behalf of the Union in the cafeteria is not
precluded and speechmaking in the central hallway is
permitted. Thus, I find that Castaneda's suspension of part
of 1 day for violating this rule was not discriminatory I
707
find that no discriminatory action was taken against
Rodriquez.
M. Alleged Misconduct Subsequent to Discharge
Respondent contends that as to some of the employees
involved herein, a denial of reinstatement would be
warranted because of misconduct, in the event their
discharges are found to be discriminatory. The conduct of
Johnny Rodriquez subsequent to his discharge has been
discussed in paragraph K, 4, and it has been found that for
conduct occurring on August 14, 1970, a denial of
reinstatement after that date would be warranted.
Respondent also contends that Clemente Escalante and
Ernie Marrufo should be denied reinstatement for conduct
discovered after discharge or for postdischarge conduct. At
some time prior to his discharge in February 1970,
Escalante solicited employee Rosa Perez Chavira to join
the Union. She resisted and he insisted. Finally he told her,
"How would you like to wake up in the morning and have
your car all flat or all of your windshield broken?" She said
she would not like that. He told her, "Well, come on and
sign," and she said she would not. He then said, "We're
going to stop talking, our friendship is going to stop here."
She said, "Fine," and walked away. She testified that she
did not own an automobile, and that Escalante started
speaking to her again at a later unspecified time.
Respondent learned of this incident after the discharge of
Escalante. I find that it would not warrant a denial of
reinstatement.
In October 1970, Ernie Marrufo, Johnny Rodriquez,
Felipe Castaneda, and Luis Alvarez were engaged in
passing out union literature at one of Respondent's gates.
Employee Angelina Bonilla was passing out literature in
opposition to the Union Marrufo told her that the Union
was going to win and that if it did not he was going to
throw rocks at the buses carrying employees to work.
Rodriquez told her that she was a bastard, an ass kisser,
and a whore, and that if she would bend over he would
assault her from behind. Rodriquez, Marrufo, and Cas-
taneda were on her side of the street. As cars came by, one
of them would shout, "Look at the prostitute giving out
papers. Don't get any papers from her. She is against the
Union " She then told them that they were not men, that if
all of the men in the Union were like them they were
nothing but queers.
Some days later, Bonilla was again passing out antiunion
literature at one of the Farah gates when a green pickup
truck drove by. Marrufo was standing in the back of the
pickup and threw a piece of a rabbit in her direction. It hit
the fence near her and she believes it would have hit her
had she not ducked on warning to do so by a fellow
employee. Marrufo then made an obscene gesture. Charges
were brought against Marrufo for the incident and he was
fined $100.
Also, on October 15, 1970, the day after a representation
election at Respondent's Gateway plant, Marrufo was
solicited on behalf of the Union at one of Respondent's
gates when employee Joseph Avila came through. Marrufo
asked him if he had joined the Union and Avila replied
that he had not. Marrufo then said, "Don't worry about it
because I know where you live "
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the conduct and statements of Marrufo and
Rodriquez are not of such a nature as would warrant a
denial of reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
occurring in connection with the operations of Respondent
described in section I, have a close, intimate, and
substantial relationship 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-
CONCLUSIONS OF LAW
1. Farah Manufacturing Company, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Amalgamated Clothing Workers of America, El Paso
District Joint Board, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has (a) by the continued existence and
enforcement of a broad no-solicitation rule precluding
union solicitation in work areas or in other departments
during nonwork time, and by changing colors of name tags
as a means of identifying and interfering with employees
soliciting for the Union in other departments during
nonwork time; (b) by instituting and maintaining a
practice of close surveillance of employees while at work
and during nonwork time as to their conduct, their work
errors and their violation of company rules and proce-
dures, and augmenting such close surveillance by assign-
ment of additional supervisors to engage in it, by
confronting employees with Vice President Chemah as to
each transgression, and by utilizing a recording of such
transgressions as a pretext for discharge or other discipli-
nary action because of union activities in Respondent's
plants; (c) by the instituting of a rule restricting all
personal conversations during worktime because of union
activities; (d) by the instituting of a rule that a packer is to
be discharged for a single error of packing an order
without it being checked because of union activities in the
plant; and (e) by the interrogation of an employee as to
whether or not he had signed an authorization card,
engaged in interference, restraint, and coercion violative of
Section 8(a)(I) of the Act.
4. By the discharge of the following named employees
because of union activities by employees in its El Paso
plants, Respondent has discriminated against them to
discourage membership in the Union and has thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act:
Ernesto Alfaro Manuel Montoya
Hector Caballero Manuel Pedroza
Guillermo Chavez Guadalupe Pineda
Clemente Escalante Mario Porras
Jesus Espinoza Ramon Rios
Gregorio Gutierrez Johnny Rodriquez
Ernie Marrufo Roberto Rodriquez
Gilbert Minjarez Isaac Soto
Juventino Morales Carlos Vera
5. By the discharge of the following named employees
because of the union activities by employees in its El Paso
plants and because they gave testimony under the Act,
Respondent has discriminated against them to discourage
membership in the Union, and has thereby engaged in
unfair labor practices within the meaning of Section
8(a)(3), (4), and (1) of the Act.
Ruben Lucero Jose Villagran
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has engaged in no unfair labor practice
by the discharges of the following named employees:
Luis Alvarez Gerardo Cinza
Oscar Arellano Daniel Olivas
Manuel Bonilla Manuel Porras
Emilio Casillas Lorenzo Rivas
Ricardo Carmona Richard Valenzuela
Rosa Marie Castro Jose Velarde
8. Respondent has engaged in no unfair labor practices
by the alleged reassignments of Luis Alvarez and Johnny
Rodriquez, nor by the alleged suspension of Felipe
Castaneda and the alleged reprimand of Johnny Rodnquez
for conduct on May 12, 1970, as alleged in paragraph 10 of
the complaint.
9. Respondent has engaged in no unfair labor practices
as alleged in paragraphs 8(b), (h), (i), (1), (m), (q), and 9(a)
of the complaint nor as to other alleged unfair labor
practices not found herein.
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 the
employees discriminatorily discharged, except Johnny
Rodriquez, immediate and full reinstatement to their
former jobs or, if these jobs no longer exist , to substantially
equivalent positions without prejudice to their seniority or
other rights and privileges and make them whole for any
loss of pay that they may have suffered by reason of the
discrimination against them, by paying each a sum of
money equal to that which he 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 and Heating Co, 138 NLRB 716.
Due to the finding of misconduct by Johnny Rodriquez,
I shall recommend that Respondent make him whole for
any loss of pay that he may have suffered by reason of the
discrimination against him from the date of his discharge
FARAH MANUFACTURING CO.
until August 15, 1970. As the act of misconduct occurred in
the evening of August 14, 1970, I shall recommend that he
be reimbursed for loss of wages through that date, 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 and
Heating Co., 138 NLRB 716.
Since Spanish is the primary language of many of
Respondent's employees, I shall recommend that the
notice to employees attached hereto be posted in both
English and Spanish.
709
I have found that Respondent instituted a change in
color of name tags as a means of identifying and
interfering with employees soliciting for the Union in other
departments during nonwork time; however, as I am
recommending in the Order that Respondent cease and
desist from maintaining and enforcing a broad no-solicita-
tion rule, I shall recommend only that it not utilize the
colored name tags as a means of enforcement of this rule,
which if the Order is complied with, will no longer exist. I
shall not recommend that the use of colored name tags be
discontinued.
[Recommended Order omitted from publication.]