Akin Products Co.

National Labor Relations Board - Board Decisions

Jun 8, 1953

105 N.L.R.B. 401 (N.L.R.B. 1953)

AKIN PRODUCTS COMPANY 401
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT interrogate our employees concerning their union membership, desires,
and activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of their right to self -organization , to form labor organizations , to join or
assist International Union , United Automobile , Aircraft& Agricultural Implement Workers
of America , CIO, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or all
such activities except to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL bargain collectively , upon request, with the above -named union as the ex-
clusive representative of all our employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment , and other conditions of employ-
ment, and if an agreement is reached , embody such understanding in a signed contract.
The bargaining unit is:
All production and maintenance employees, shipping employees, sweepers, and janitors
employed at our Rome , Georgia, plant , exclusive of all engineering employees , drafts-
men, office clerical employees, guards, professional employees, over-the-road truck-
drivers, and supervisors, as defined in the Act.
DIXIE CORPORATION,
Employer.
Dated ................ By................................................................ .............................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material
AKIN PRODUCTS COMPANYand CITRUS, CANNERY WORK-
ERS AND FOOD PROCESSORS UNION NO. 24473, AFL. Case
No. 39-CA-250. June 8, 1953 -
DECISION AND ORDER
On April 13, 1953, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above - entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices , and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
The Boards has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
IPursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel [Members Murdock, Styles, and Peter-
son].
105 NLRB No. 58.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondent's
exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications and ad-
ditions. 2
We agree with the Trial Examiner that the Respondent failed
to hire Juanita Lopez on November 7 and 12, 1951, for its
seasonal operations, because of her union activity and because
she had testified in July 1951 in an earlier unfair labor prac-
tice proceeding3 involving the Respondent, and thereby dis-
criminated against her in violation of Section 8 (a) (1), (3), and
(4) of the Act. It is not disputed that the Respondent was aware
of Lopez' union activity when it refused to reemploy her in
November 1951. In June 1951 Juanita Lopez had acted as an
observer for the Union in a representation proceeding involving
the same parties." In July 1951 she had testified in the earlier
unfair labor practice case that prior to the representation
election a supervisor, Faustina Salinas, 5 had interrogated em-
ployees concerning their voting intentions, and that Salinas had
stated "that those that voted for the Union had no more work."
Lopez had begun to work for the Respondent in January 1947
and worked during various seasons in each succeeding year.
In 1951 she worked from May 9to July 18. Her first application
for reemployment after the aforecited union activity and testi-
mony was made on November 7, 1951. Although Respondent
admitted that she was one of its most efficient employees, and
that seniority as well as ability is a factor in hiring employees,
Lopez was passed over on November 7 in favor of 20 other
employees with less seniority. When she applied again on
November 12 she was passed over in favor of 12 other junior
employees, 3 of whom had never before worked for the
Respondent.
No satisfactory explanation was given by the Respondent for
rejecting Lopez' application. While Respondent contended that
a freeze which occurred on November 3, 1951, by destroying
a substantial part of the crops, curtailed its operations during
that period, the fact remains that Respondent hired a normal
,We correct the following inadvertency in the Trial Examiner's findings, which does not
affect the validity of his ultimate conclusions nor our concurrence therein: The freezing
weather found by the Trial Examiner to have occurred between January 30 and February 2,
1952, actually occurred between January 30 and February 2, 1951
399 NLRB 1270. The Board there found that Respondent had violated Section 8 (a) (3)
and (1) of the Act by discharging 10 of its employees and refusing to rehire 7 of them
"91 NLRB No. 203, not reported in printed volumes of Board decisions
5 The Respondent contends that Salinas is not a supervisor and that, contrary to the Board's
finding in the earlier case, she does not now have, and never had, the authority to hire and dis-
charge employees . Harold Akin, Respondent' s president , admitted, however, that he had testi-
fied in the earlier case that Salinas was authorized to hire employees, and he stated that her
duties have not changed in the interim (Salinas did not testify.) Accordingly. as she is
authorized to hire employees, and for the further reasons set forth in detail in the Inter-
mediate Report, we find that Salinas was at all times here material a supervisor within the
meaning of the Act
AKIN PRODUCTS COMPANY 403
complement of 32 girls in November 1951,6 including 3 girls
who had never before worked for it. Absent any explanations,
the hiring of 3 new employees in itself refutes the contention
that there was not enough work to warrant rehiring an old and
efficient employee.'
When Lopez applied for work again in the fall of 1952, her
application was rejected on three separate occasions . Although
conceding that other employees were hired on at least one of
these occasions , 8 the Respondent offered no explanation at the
hearing of its failure to hire Lopez.
The true reason for Respondent ' s failure to rehire Lopez in
the fall of 1951 and 1952 is sufficiently indicated , we believe,
by Supervisor Salinas' statement in July or August 1951 to
Garcia, a union adherent , that Salinas could give Garcia work
but that the Respondent did not want union members in the
plant, adding , "You like a fool went into the Union or you
would be working every season ." Shortly thereafter, when
Respondent was preparing to hire for the fall season , Abundio
Perez, husband of one of the employees , asked Salinas whether
she was going " to put on the girls that . . . joined the Union."
Salinas replied , ". . . I dont think so. I will see first if I have
enough girls in here . ..."Salinas did not testify at the instant
hearing , and the foregoing testimony is uncontradicted.9
Accordingly, we find that the Respondent refused to rehire
Lopez, as recited above , in the fall of 1951 and 1952 because of
her union activity, including her testimony in the earlier case,
and that by such refusal the Respondent violated Section 8
( a) (1), (3), and (4) of the Act.
THE REMEDY
In connection with the reinstatement of Lopez, the Trial
Examiner recommended that she be placed on a preferential
hiring list " in accordance with her length of accumulated
service as compared with the length of accumulated service
of any other employee on such a preferential list." We will
modify this recommendation by requiring that the Respondent
give Lopez priority over all others in selecting employees for
recall at the beginning of the next season.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
6Respondent 's president , Akin, acknowledged that normally only 25 to 30 girls are hired in
the fall of the year,
7 Akin testified that Lopez was not as efficient on some crops as she was on others This
does not, however , adequately explain Respondent ' s willingness to hire untested employees in
preference to Lopez . Moreover , Respondent does not contend in its exceptions that any of the
employees actually hired were more efficient than Lopez.
8 Akin testified that hiring began on October 18, 1952, when Lopez first applied for work.
9 The remarks here attributed to Salinas are similar to those found to have been made by her
in the prior case in explaining the Respondent ' s failure to hire, or retain in its employ, union
adherents We find that these statements were made by Salinas in the instant case within the
scope of her employment.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Akin
Products Company, its officers, agents, successors , and as-
signs , shall:
1. Cease and desist from:
(a) -Discouraging membership in Citrus, Cannery Workers
and Food Processors Union No. 24473, AFL, or any other labor
organization of its employees by disc riminatorily discharging
them, or by discriminating in any manner in regard to their
hire, tenure of employment, or any term or condition of em-
ployment.
(b) Discriminating against any employee forgiving testimony
under the National Labor Relations Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organizatioii; to form labor organizations, to join or assist
Citrus, Cannery Workers and Food Processors Union No.
24473, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and
to engage in collective bargaining or other mutual aid or pro-
tection, or refrain from any or all such activities except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a), subsection (3)
of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer to Juanita Lopez full reinstatement to her former
or substantially equivalent position, in the manner set forth in
"The Remedy" above.
(b) Make whole the said Juanita Lopez in the manner set
forth in section V of the Intermediate Report entitled "The
Remedy."
(c) Upon request, make available to the Board or its akeilt
or agents , for examination and copying, all payroll records,
social-security payment records and reports, and any other
records necessary to analyze the amount of back pay due.
(d) Post at its plant in Mission, Texas, copies of the notice
attached hereto as an appendix.1° Copies of such notice, to be
furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by the Respondent' s repre-
sentative, be posted by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
to In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
AKIN PRODUCTS COMPANY 405
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in Citrus,
Cannery Workers and Food Processors Union No. 24473,
AFL, or discourage activity in support of that organization,
or any other labor organization, or discourage any
employee from exercising the right secured to him under
the National Labor Relations Act by means of discrimina-
tory discharge, or discriminating in any manner in regard to
hire, or tenure of employment, or any term or condition
of employment.
WE WILL NOT discriminate against any employee for
giving testimony under the National Labor Relations Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist Citrus, Cannery Workers and Food Proces-
sors Union No. 24473, AFL, or any other labor organiza-
tion , to bargain collectively through representatives of their
choosing, and to engage in collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as guaranteed in
Section 7 thereof.
WE WILL offer Juanita Lopez full reinstatement to her
former position or a substantially equivalent position at the
beginning of the next season before any other similar em-
ployees are hired, and we will make her whole for any los s
of pay suffered as a result of discrimination against her.
AKIN PRODUCTS COMPANY,
Employer.
Dated ................ By....
.
...................... ............. .........
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered , defaced , or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
After a charge filed on December 13, 1951, and amended February 6, 1953, by Citrus,
Cannery Workers and Food Processors Union No. 24473, AFL, herein called the Union, the
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel for the National Labor Relations Board by the Regional Director for the
Sixteenth Region, on February 9, 1953, issued a complaint against Akin Products Company,
herein called the Respondent, alleging that the Respondent had refused employment to Juanita
Lopez, a seasonal employee, for the reason that she had joined or assisted the Union, and
because she appeared and gave testimony in July 1951 in the matter of Akin Products Com-
pany, Case No 39-CA-108 (99 NLRB 1270), before the National Labor Relations Board, and
that the Respondent had through a supervisory employee threatened and warned its employees
against joining or assisting the Union , and had engaged in other specified conduct in violation
of Section 8 (a), subsections (1), (3), and (4), and Section 2, subsections (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. After service
of the complaint , the Respondent filed answer - thereto, denying the violations of the Act
ascribed Pursuant to notice , a hearing was held at Edinburg , Texas , on March 2 and 3,
1953 , and was continued and concluded at McAllen , Texas , on`March 3 and 4, 1953.
The Respondent 's objections to the introduction of evidence and the reception of testi-
mony concerning alleged violations of Section 8 (a), subsection (3) of the Act, permitted as
continuing objections at the hearing , are hereby overruled . The grounds for the objections
were that the original charge , filed December 13, 1951 , alleges violations of Section 8 (a),
subsections (1) and (4), that the first amended charge, filed February 6, 1953, adds alleged
violations of Section 8 (a), subsection (3), and that the first amended charge is barred by the
6-month limitation provision of Section 10 (b) of the Act The position of the Respondent is not
well taken: The original charge afforded notice of the acts of the Respondent believed to have
been in contravention of the Act,i and the charge is not defective solely because it does not
mention a provision of the Act which later was inserted in the first amended charge See
Cathey Lumber Company, 86 NLRB 157.
At the hearing, the charging party appeared through its representative and the Respondent
and the General Counsel were represented by counsel. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidencebearingon the issues, to argue orally
upon the record, and to file briefs, proposed findings of fact, and proposed conclusions of
law, was afforded the parties
Upon the entire record in the case and from his observation of the witnesses, and after full
consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent , Akin Products Company , is acorporation duly organized under and existing
by virtue of the laws of the State of Texas and has its principal office and place of business in
the city of Mission, Texas, where it is now and at all tunes since the year 1951 and prior
thereto, has been engaged in the business of packing and canning vegetables and citrus fruits
During the times mentioned , and during each year therein , the Respondent purchased fresh
vegetables and canning and packing equipment valued in excess of $ 100 ,000, of which the
major portion was for vegetables which were purchased in the State of Texas . During the
same period the Respondent sold products consisting principally of canned and packed
vegetables valued in excess of $ 500,000 , of which more than 50 percent was shipped in inter-
state commerce from its place of business at Mission , Texas, to points outside the State of
Texas.
The Trial Examiner finds that the Respondent is engaged in commerce within the meaning
of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Citrus , Cannery Workers and Food Processors Union No. 24473, AFL, is a labor organiza-
tion within the meaning of Section 2, subsection (5) of the Act
i The original charge reads in part:
On the dates set opposite their names ... [ the Respondent] refused to employ: Juanita
Lopez- 11/7/51 [and others] ... because they filed charges and gave testimony under
the Act ... and because of their membership and activity in [the Union], and at all times
since said dates it has refused and does now refuse to employ the above-named persons
AKIN PRODUCTS COMPANY
III. THE UNFAIR LABOR PRACTICES
Prior Board Proceedings
407
At the hearing in this case, the Trial Examiner was requested on motion of the General
Counsel to notice the Decision and Order of the National Labor Relations Board in Akin
Products Company, Case No. 39-CA-108 (99 NLRB 1270), and the findings contained therein
This is the case referred to in the complaint in the instant case in which it is alleged that
Juanita Lopez appeared and gave testimony at the hearing held at Edinburg, Texas, in the
month of July 1951. In that case, the Board found that the then Respondent (now Respondent
herein) had violated Section 8 (a), subsections (1) and (3) of the Act , and ordered the Re-
spondent to cease and desist from such violations and to take certain specified affirmative
action including offer of reinstatement to some 10 employees found to have been discriminated
against by the Respondent. 2
The attention of the Trial Examiner was drawn to Akin Products Company, Case No. 39-
RC-207 (not reported), in whichtheBoard, onjune 21, 1951, ordered a secret ballot among the
production and maintenance employees of the Respondent (including the seasonal production
employees mentioned below) to determine whether they desired the Union as their exclusive
representative for the purposes of collective bargaining.
The Trial Examiner has noticed Case No 39-CA-108, as moved and requested by the
General Counsel, and having done so regards the facts found and set forth in the Decision
and Order of the Board in that case as conclusive insofar as any of those facts are relevant
to the issues or any of them inherent in the instant case.
Employment of Seasonal Workers
A number of the seasonal employees, who are from time to time employed by the Re-
spondent, live within the city of Mission, while others live within a radius of a comparatively
few miles
The times of the packing and canning operations of the Respondent are governed by the
availability of the several crops of agricultural products as they are harvested. The harvests
from which the Respondent draws its commodities for canning and packing occur within a
fairly small area in and around Mission. Normal seasonal operations begin in October of each
year with the canning of blackeyed peas and string beans and, to a lesser extent, green beans
The fall tomato crop is then handled and after that the packing and canning of beets and car-
rots occurs, these operations usually lasting about 3 weeks into March Then there may be a
"layover" period of a few weeks , after which the canning of the spring bean crop is carried
on until late May After that the spring tomato pack begins and continues until summer,
usually through late June or early July
The Respondent , in its operations , usually or almost always , is well advised and will know
within a day or two when a certain crop will be harvested and when deliveries will begin to be
made to its plant When the Respondent learns that the harvest of a particular commodity is
about to begin, news of the imminent starting of work is communicated orally to some of the
workers in the vicinity who customarily are employed in its packing and canning operations,
and they tell others.
Tomatoes constitute the largest volume of pack, both in the late fall and early winter, and
in early summer . The tomatoes packed are ripe tomatoes, and are the ones left over after the
market has absorbed the number of green tomatoes customarily shipped out of the region
Consequently, when the tomatoes reach the Respondent's packing sheds, they must be handled
immediately to avoid loss. To some extent, this is true with other commodities
The Respondent has four permanent all-year employees--the secretary to the president,
the bookkeeper , the plant superintendent , and an assistant superintendent All other em-
ployees are considered seasonal employees: Women who are employed exclusively on the
production lines, and a number of men employed as maintenance and warehouse workers.
2 The Respondent has not complied with the order of the Board in Case No. 39-CA-108, nor
has the Board instituted enforcement proceedings
291555 0 - 54 - 27
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The number of women who are employed varies 3 When word goes out in the neighborhood
and environs that the plant is to start packing operations, and on the day set for the start of
such operations , or on the day before , a large number of girls customarily congregate in an
area around the time clock in the Respondent ' s plant Upon being designated as one who is
chosen to work, an employee presents her timecard to the forelady who makes the appro-
priate record of the worker, and the hiring continues until the necessary crew is obtained
for the particular operation
Seniority in the strict sense has never been followed, nor has past employment or con-
tinuity of employment been observed, with respect to the hiring of any of these female em-
ployees. On the other hand, it has been generally regarded by the Employer and many
seasonal employees that certain girls will be chosen because of their prior experience , speed,
and their demonstrated ability to do good work No individual has been employed to work
solely in the packing or canning of a single commodity
In Case No. 39-CA-108, it was found:
At or shortly before the season is open, the Respondent causes word to be passed out
that it will open on or about a certain day or date. A number of the older employees
living in different localities pass the word along via the "grapevine" that the plant will
open at such and such a time. On 1 or 2 days before the expected opening day those
wishing to work during the coming season report to the plant where , normally, Salinas
takes their names and social security numbers and tells them on what day to report. On
the day that the plant gets under way Salinas , with the assistance of some two or three
3 The following list of workweeks and number of female seasonal employees on each weekly
payroll for the weeks ending January 3, 1951, through February 25, 1953, as shown by the
payroll records of the Company, was entered into the record by stipulation of counsel:
Weeks ending:
No. of
Employees Weeks ending.
No. of
Employees Weeks ending.
No of
Employees
1951 Jan. 3 9 1951 Nov. 7 21 1952 June 11 148
10 10 14 38 18 139
17 9 21 39 25 104
24 35 28 37 July 2 0
31 35 Dec. 5 38 9 18
Feb. 7 16 12 38 16 17
14 38 19 40 23 0
21 0 26 38 30 0
28 0 1952 Jan. 2 105 Aug. 6 12
Mar. 7 43 9 82 (Aug. 7
14 0 16 63 Oct. 17 0)
21 5 23 22 22 15
28 24 30 24 29 16
Apr. 5 0 Feb. 6 25 Nov. 5 25
11 0 13 26 12 48
18 0 20 26 19 47
25 0 27 26 26 46
May 2 26 Mar. 5 26 Dec. 3 43
9 37 12 26 10 77
16 34 19 25 17 124
23 34 26 20 24 132
30 34 Apr. 2 20 31 129
June 6 35 9 16 1953 Jan. 7 136
13 111 16 14 14 122
20 112 23 0 21 106
27 110 30 28 28 70
July 4 120 May 7 60 Feb. 4 23
11 121 14 90 11 28
18 116 21 123 18 23
25 0 28 138 25 23
6 June 4 198
AKIN PRODUCTS COMPANY 409
checkers , assigns the employees to the line or lines then put in operation and there-
after oversees and checks the work of those women who perform the different func-
tions.
The practice as described generally still obtains except that Harold Akin, president of the
Respondent corporation , testified at the hearing in the instant case that Faustma Salinas, the
forelady and a checker , hires only the girls that he, Akin, has instructed her to hire Akin
here testified that prior to the beginning of operations on November 7, 1951, he had made up
a list of girls which he had given to Salinas and to Henry Sampson, his plant superintendent,
with strict instructions that they were tohireonly the girls on that list and no others , and that
in the hiring neither Salinas nor Sampson was to mention the Union or union membership or
in any way infer that selections were made because any person was or was not a member of
the Union Prior to November 1951, Salinas had always made the selection of the girls who
were to work Akin was particularly emphatic in his instructions , he said , because of the
order entered in the prior case.
According to him, he is now and, sincethe Board decision in Case No 39-CA-108, has been
the only person who hires and fires any employee
Although Akin may have issued instructions to Sampson and Salinas , they could not have
been followed very closely Salinas, who was found by the Board to have been a supervisor
prior to and during the season ending July 18, 1951, was at her usual post with all of her
apparent former authority on the first day of hiring in the subsequent season which began
November 7, 1951 The revocation or limitation of the authority formerly held by her, if
made, certainly was not communicated to the employees , and on November 7 and succeeding
days she gave every appearance , and the girls were justified in believing , that there had been
no change in her status as a supervisor
Further , on the basis of the facts disclosed , Salinas as a so-called checker had supervisory
duties over the female seasonal employees while they were at work on the production lines
Clearly, she was, and is , a supervisor within the meaning of the Act4 when the sum of her
activities is -considered Her supervision , if not the actual hiring , of seasonal employees, the
assignments by her of girls to work at various stations on the production lines, her rating
of their work and the checking by her of quality and quantity production by the girls under her
direction , all combine to make her a supervisor
Discrimination Against Juanita Lopez
Juanita Lopez, a seasonal female employee of Respondent , was first employed in the year
1946.5
4Section 2 (11} of the Act defines supervisor : " The term 'supervisor ' mea ,s any individual
having authority , in the interest of the employer , to hire, transfer , suspend, lay off, recall,
promote, discharge, assign, reward , or discipline other employees , or responsibly to direct
them, or to adjust their grievances , or effectively to recommend such action , if in con-
nection with the foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment."
5 Payroll records of the Company referred to at the hearing showed the following record of
employment of Juanita Lopez after 1946:
Weeks ending:
1947 1949
January 9 - February 20
May 29 - June 27
October 30 - December 24
April 14 - June 30
1950
1948 April 5
April 19 - June 7
February 5
February 26 - March 4 1951
April 8 - June 24
July 1 - July 8 May 9 - July 18
December 30 - March 24, 1949
1952
May 14 - June 26
41 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lopez acted as an observer on behalf of the Union at the National Labor Relations Board
election held during the month of June 1951 There is no question but that she was active in
the Union prior to the beginning of the 1951-52 season She was a witness called by the
General Counsel in Case No 39-CA-108 She is now, and at all times has been since prior
to the 1951 season, a member of the Union
On November 7, 1951, after the middle of the day and early in the afternoon, Lopez, ac-
companied by Olivia Rodriguez, went to the plant of Respondent after hearing that they were
putting on girls that day and starting the seasonal pack She and Rodriguez applied to Salinas
for work on that day but were passed over The two girls then, according to their statements,
left the group of girls and went forward in the plant to Akin's office with the idea of asking
him why they could not obtain employment on that day When they reached the office they
found he was not there They thereupon left the plant and went downtown in Mission, not
finding Akin, they returned to the plant On their return, they found that Salinas had com-
pleted picking the girls and that the crew was made up Lopez and Rodriguez again went
downtown where they found Akin sitting in an automobile talking to another man According
to Lopez and Rodriguez, they approached Akin and asked him why they were not permitted
to go to work. They were told by Akin that the Respondent had notified girls the day before to
report to work and that it had hired all the girls needed for a very short pack, and that there
was no more work available at that time. According to Akin's testimony, Lopez and Olivia
Rodriguez both addressed him vehemently and demanded that they be given work, he replied
that he could not furnish them work when there was no work available
Lopez again applied for work after noonday on November 12, 1951, and again was refused
employment
On about October 18, 1952, at the beginning of that season and before work actually had
begun, Lopez once more applied for work and was told by Salinas that no work was available
She went back a week or so later and Salinas again told her that no work was available and that
she had hired all the girls she needed Lopez made a final effort to obtain reemployment on
November 17, 1952, without success
Lopez was employed by the Respondent for the period May 14 through June 26, 1952 Her
employment in May occurred when a comparatively large number of seasonal employees were
being hired, and the circumstances described by her, which are uncontradicted, were these
I heard through the whistle and I called Mr Akin He was the one who answered the
phone, and I asked him if they were going to work that day and lie told me yes and I asked
him if they were going to hire more workers and lie said yes and then I told him I was
going to go, but I did not give him my name because he did not ask me who was speak-
ing, and when I arrived at the plant, I asked Faustma if they were going to hire more
workers and she told me that they did not need any more because Mr Akin had told her
there were enough And then I told Faustina that I had talked over the telephone with Mr
Akin, that he was going to hire more workers, and that'was when she hired me
Although the Respondent apparently had adequate employment records available at the
hearing , it did not contradict the testimony of Lopez concerning the prior length of employ-
ment and experience of the women employed on November 7 and 12, 1951, as compared to her
own 6 Her testimony deserves credence in the face of the failure of the Respondent to produce
regularly kept employment records to refute her recollection
On the facts presented in this case, it is plain that at the beginning of, and during, any season
the Respondent hires seasonal workers as individuals, and not as a member of a group, that
certain individuals are given preference in luring, and that they have grown to expect that
because, if they are capable of doing the work demanded, and if they have been chosen to
work before, and if work is available, they reasonably may expect to be hired again in pref-
erence to others with less experience, ability, or prior employment In an ordinary case,
where there are no formal seniority rights conferred or secured by common agreement, a
seasonal employee conceivably may have a right by implication to reemployment in any
season, present ability and willingness to do the work.
6On November 7, 20 women were hired and worked; on November 8, all of the ones employed
the day before worked except Anita Cerdas; and on November 12, the next working day after
November 8, 32 women, including all of those who were hired and who worked on November 7
had been hired and were at work. Of these 32 seasonal employees, the record shows that with
the possible exception of one Selferina C Ortega, none had been employed prior to the first
employment of Lopez. and that 3 of them had been employed for the first time on November 12:
AKIN PRODUCTS COM 'ANY 411
Here, Lopez, as such a seasonal employee, had a reasonable right to expect reemployment
in the fall of 1951 but, as the circumstances show, she was prevented from employment then,
and is now prevented (except under limited conditions), from working for the Respondent.7
Related Acts of Discrimination
Olivia Garcia, one of the female seasonal workers, a witness in Case No 39-CA-108, is one
of those ordered reinstated to former employment by the Board' s order there She first was
employed by the predecessor company of the Respondent in 1942 and continuously in seasons
during the following years including the season beginning in the fall of the year 1950 She has
not been employed by the Respondent since that season ended in the summer of 1951
Her uncontradicted testimony shows that about 2 weeks after the conclusion of the hearing
in that case in July 1951, Salinas told her that "if the Union won," Akin would recognize it,
make Lopez a forelady, and then fire her, Salinas, also that Salinas told her in that con-
versation that she, Garcia, "like a fool, went into the Union, or you would be working every
season " Thereafter, on November 12, 1951, Garcia, together with her sister , Lydia Forquer,
sought employment at the plant She said that after the crew was hired that day she, her
sister , and Lopez, "just us three," remained unhired
On May 16, 1952, she approached Akin for work--he told her that Sampson "had the order
to hire the people he needed", she then went to Sampson, who told her that he had not been
given orders to hire her, she then returned to Akin who in effect told her there was no work
available.
Hired Hired Hired Dates of first
Nov. 7 Nov 8 Nov. 12 employment for those
Employees 1951 1951 1951 hired subsequent to Lopez
Manuela Alvarado x x x After
Maria G, Alvarez x x x After
Florencia Balderas x x x After
Anita Cerda x x About 1949
Josefa Flores x x x After
Emma Garcia x x x About 1950
Florencia Gomez x x x After
Rosa Gonzales x x x After
Esperanza Longoria x x x After
Eulalia R Lopez x x x After
Martina M. Martinez X x x After
Guadalupe Morin x x x 1950 or 1949
Maria C Rodriquez x x x After
Maria C Salazar x x x 1949 or 1950
Guadalupe Sartana x x x About 1949 or 1950
Celia Soliz X x x About 1949 or 1950
Delia Soliz x x x About 1949 or 1950
Delfina Tilerina x x x About 1949 or 1950
Paulina Tijerina x x x About 1948 or 1949
Josefa Torrez x x x After
Alicia Ibarra x Nov. 12, 1951
Concepcion G. Maciel x After
Dora G. Martinez x Nov 12, 1951
Dora S Martinez x Nov 12, 1951
Rebeca Ochoa x After
Lydia Ohvarez x About 1950
Seferma G. Ortega x Juanita L o p e z does not
know this person
Susana Pena x About 1948 or 1949
Maria Estela Ramos x 1949 or 1950
Martina Rodriquez x After
Santos Rodriquez x After
Elodia V. Sanchez x 1948 or 1949
7 At the hearing, Lopez was offered employment in the next tomato packing season, and other
work if Respondent was short of help.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the beginning of the following season, in October 1952 , Garcia sought work at the plant,
but received no definite promise Again , on November 8, 1952, she was refused employment
Olivia Rodriguez, like Lopez and Garcia, was unable to obtain employment at the beginning
of the 1951-52 season 8 Her testimony as a rebuttal witness substantiates that of Lopez re-
garding their futile efforts to obtain employment on November 7, 1951.
November 3, 1951, saw freezing weather at and around Mission, the freeze being of suf-
ficient severity to result in smaller deliveries from the fields to the Respondent's plant,
especially as to those crops which had been planted under contract According to Akin, when
packing operations were begun on November 7, he had use for less than the usual number of
seasonal workers usually employed at that time of year 9
Again, between January 30 and February 2, 1952, the area was struck with freezing
weather which, as a matter of common knowledge, destroyed many crops, citrus and vegetable,
in the lower valley of the Rio Grande.
Through laborious effort, by means of examination and testimony from code books ii which
show the daily pack during this time of that season, as compared to another pack in the time
of a subsequent season, the Respondent undertook to show its inability, or to justify its refusal,
to hire some formerly regular seasonal employees at the beginning of the 1951 and 1952
seasonal packs because of crop conditions
Although the weather may have curtailed packing operations at some times, it did not
greatly interfere with usual hiring practices insofar as they concerned the Respondent It
continued , and has continued , its practice of selecting the female seasonal employees by
individual and by choice of its own in making its selections , it appears as an inescapable
conclusion that the Respondent followed certain rough standards which included, among
others, former employment and demonstrated ability for a nonskilled or, at the most, semi-
skilled job
The circumstances are too strong to evade a conclusion that the instructions of Akin, at the
beginning of the 1951-52 season , as to which girls were to be hired, were of pretense only,
and never actually were enforced by him or followed by Salinas or Sampson In preparing
the list of girls to be hired at the beginning of the 1951 season, Akin seems to have de-
liberately omitted from the list names of seasonal employees, including Lopez, Garcia, and
Rodriguez, who previously had been active in behalf of the Union So far as appears from the
record herein, not a single employee known as the result of the July 1951 hearing to have been
active in the Union was employed on November 7, 8, or 12, the first days of hiring in the fall
of 1951 The list from which Salinas is purported to have hired was not produced at the hear-
ing, the inference here to be drawn is that the list contained the names of some or all of the
persons actually hired on those days, and that it did not contain the names of any persons
known to have been active in the Union prior to or at that time
An apparent effort was made to show that because of the purchase of machinery by the
Respondent, it has need for fewer employees at certain times. It had purchased an automatic
tomato filler in 1948, an automatic bean sheller in 1949, and some beet peelers in 1950
The times of these purchases are too remote and the testimony regarding such too vague to
demonstrate any possible effect upon employment during the times relevant hereto.
On the whole of the evidence in this case, it is clear that the membership and activity of
Lopez in the Union outweighed with the Respondent her acknowledged willingness and ability
to work She therefore was kept from usual employment except for the May-June 1952
interim, because of her union partisanship . Whether advised or not, she appears to have
obtained employment in May and June 1952 only because she used the telephone to inquire
whether work was available
BRodriguez is one of the employees ordered reinstated to employment by the order of the
Board in Case No. 39-CA-108.
9 This testimony is not consistent with previous testimony of Akin when he said that "We use
approximately 25 or 30 girls" at the beginning of the normal packing season And see foot-
note 3, supra.
ii The Respondent produced the complete record of the pack of each commodity for each day
of the seasons 1951-52, and considerable time was spent in extracting information from these
books The daily pack record substantiates the testimony of Akin regarding the packing of cer-
tain commodities at particular times; however , when compared with the employment records
of the Respondent for the same periods of time they do not substantiate the claimed peculiar
impact upon normal operations with regard to employment practices following the freeze of
November 3, 1951, and that of January 30-February 2, 1952.
AKIN PRODUCTS COMPANY 413
Concluding Findings
The antiunion remarks attributed to Salinas, wholly unrefuted, ii by credible witnesses,
together with the apparent exclusion of any female seasonal employee known to have been
engaged in concerted union activity from employment on November 7, 8 and 12, 1951, re-
quires a finding that the Respondent has engaged in and is engaging in an unfair labor prac-
tice within the meaning of Section 8 (a), subsection (1) of the Act The Trial Examiner also
finds that the Respondent has refused and continues to refuse to employ Juanita Lopez
because she joined and assisted the Union, and because she gave testimony under the Act;
and that in so doing the Respondent has violated and is violating Section 8 (a), subsections
(1), (3), and (4) of the Act. The statement of the president of the Respondent, made at the
hearing, as to the willingness of the Respondent to employ Lopez during the next tomato
packing season, with no assurance of work during any other season or part of a season, does
not constitute an unqualified offer of employment
In Case No. 39-CA-108, the Board said:
Where, as here, it appears affirmatively that certain employees were rejected because
of their union activity, it can be no defense to the complaint that the Employer could not
hire both the women it did select and the ones it rejected. As the Board has long held, an
Employer may not utilize an economic reduction in its over-all employment as a means
for discriminating against those employees who were union members or otherwise active
on behalf of the Union.
That comment is precisely applicable here
The Respondent's motion to dismiss, made toward the closing of the hearing, is disposed
of by the Trial Examiner by the findings of fact and conclusions of law expressed herein
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 the Respondent described in section I of this Intermediate Report, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act The Trial Examiner has found that the
Respondent has discriminated in regard to the hire and tenure of employment of Juanita
Lopez. It will be recommended that the Respondent offer to her immediate and full rein-
statement to her former or a substantially equivalent position and make her whole for the
loss of pay she may have suffered as a result of the discrimination against her by payment to
her of a sum of money equal to that which she would have earned as wages from on or about
November 1, 1951, to the date of the offer of reinstatement, less her net earnings.
The loss of pay will be computed on a quarterly calendar basis, in accordance with the
formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289 Earnings in one
particular quarter will have no effect upon back-pay liability for any other quarter It is
further recommended that the Respondent make available to the Board, upon request, payroll
and other records to facilitate back-pay computations. F. W. Woolworth Company, supra
The Trial Examiner is of the opinion that the unfair labor practices found herein, in con-
nection with prior unfair labor practices set forth in the findings of the Board in Case No
39-CA-108, disclose a planned course of conduct displaying a deliberate intent of the part
of the Respondent in opposition to the purposes of the Act and indicates the likelihood of the
Respondent resorting to other and further acts of interference, restraint, and coercion in
violation of the Act. It will be recommended that Respondent be ordered to cease and desist
from in any manner infringing upon the rights of employees as guaranteed in Section 7 of the
Act.
"Salinas did not testify at this hearing.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner further will recommend that the Respondent place the name of Juanita
Lopez on a preferential hiring list and offer employment to her in her former or substantially
equivalent position in this or any subsequent season, she to take her place on the preferential
hiring list in accordance with her length of accumulated service as compared with the length
of accumulated service of any other employee on such a preferential list.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Citrus, Cannery Workers and Food Processors Union No. 24473, AFL, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of Juanita Lopez, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
3. By discriminating against Juanita Lopez because she has given testimony under the Act,
the Respondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (4) of the Act.
4. By such discrimination and by interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2, subsections (6) and (7) of the Act.
[Recommendations omitted from publication.]
WEST COAST LUGGAGE CO. and LEATHER WORKERS UNION
OF LOS ANGELES, LOCAL 213 OF INTERNATIONAL FUR
AND LEATHER WORKERS UNION. Case No. 21-CA-1311.
June 8, 1953
DECISION AND ORDER
On June 11, 1952, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices in violation of Section 8 (a) (1)
and (3) of the Act, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in
certain other unfair labor practices in violation of Section 8 (a)
(5) of the Act, and recommended dismissal of those allegations.
Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a brief. The Respondent filed no exceptions.
The Board has reviewed the rulings made by the Trial Exam-
iner at the hearing, and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner,
with the additions and modifications discussed below.
1. No exceptions were taken to the Trial Examiner's find-
ings that the Respondent, by threats and interrogation, vio-
lated Section 8 (a) (1) of the Act. We therefore adopt these