Bakersfield Foods Co., Inc.

National Labor Relations Board - Board Decisions

May 14, 1959

123 N.L.R.B. 1130 (N.L.R.B. 1959)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Dairy Transportation Drivers, Helpers and Terminal Employees , Local Union
No. 770 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging Owen Edgerly, Joe Ford , and George Champignon and by
refusing to reinstate Melvin Leek, thus discriminating in regard to their hire and
tenure of employment , because each of them have engaged in protected concerted
and union activities for the purposes of collective bargaining or other mutual aid
or protection or because of his membership and activities on behalf of the Union,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) and ( 1) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has committed unfair labor
practices within the meaning of Section 8 (a)( 1 ) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Bakersfield Foods Co., Inc. and Teamsters, Chauffeurs, Ware-
housemen & Helpers Local No. 87, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of
America. Cases Nos. 21-CA-3059, 21-CA-3063, 21-CA-3173,
and 21-CA-3.76. May 14, 1959
DECISION AND ORDER
On February 27, 1959, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding
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. The Trial Examiner
also found that the Respondent had not engaged in certain other un-
fair labor practices and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the Respondent
filed exceptions to the Intermediate Report with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel ( Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings,' conclusions, and
1 No exceptions were taken to the Trial Examiner ' s findings that Respondent did not
discriminate against Smith, Joe Castaneda , and Emigean and Vincent Sanchez, and those
findings are hereby adopted.
123 NLRB No. 145.
BAKERSFIELD FOODS CO., INC. 1131
recommendations 2 of the Trial Examiner, with the modifications and
additions noted below.
The Trial Examiner found that the Respondent discriminatorily
failed to recall Alice Hernandez, Rosie Perez Padilla, Juan Perez,
Jessie Luera, and Angeline Ponce following their layoff oii June 13,
1957. We do not agree with this finding.
Unlike the Trial Examiner, we do not find that the General Counsel
has established a prima facie case in favor of the above-mentioned
complainants. All five complainants were laid off for business rea-
sons at the end of the cannery run on June 13. When the flake line
was started in July, they were not hired to work thereon. Our dis-
agreement with the Trial Examiner as to these complainants stems
from the fact that we are unable to connect Respondent's failure to
rehire the complainants in July with any union activity of theirs
known to, or suspected by, Respondent. Thus, Ponce is not shown by
the record to have engaged in any union activity. As found by the
Trial Examiner, Hernandez, Padilla, Luera, and Perez attended the
union meeting of May 14 which was under surveillance by Respond-
ent. However, upon interrogation in connection therewith, Hernan-
•dez and Padilla thereafter satisfied Respondent that they did not
attend the meeting and were permitted to continue at work, as was
Luera, until the end of the cannery run. Perez was not an employee
'of Respondent on May' 14 and, although in attendance at the union
meeting of that date, he was subsequently given employment by the
Respondent, which he retained until the June 13 layoff. It does not
.appear that any of these complainants engaged in, or that Respond-
ent had reason to believe that they engaged in, any activity subsequent
to the May 14 meeting. Many other employees laid off about the same
time as the complainants were also not recalled to work following the
plant's reopening in July. Under all the circumstances, we are un-
able to find that Respondent's failure to recall the five employees in
issue was discriminatorily motivated. Accordingly, we shall dismiss
the complaint insofar as it alleges otherwise.
ORDER
Upon the entire record in these cases and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bakersfield
Foods Co., Inc., Bakersfield, California, its officers, agents, successors,
and assigns, shall:
In its exceptions , Respondent takes issue with the recommended order of the Trial
Examiner on the ground that it does not take into account Respondent' s financial plight,
including the pending bankruptcy proceeding instituted by it subsequent to the hearing in
this case . The issues thus raised by Respondent in its exceptions may be considered when
compliance with our Order is undertaken.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in Teamsters, Chauffeurs, Ware-
housemen & Helpers Local No. 87, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in
any other labor organization of its employees, by discriminating in
regard to hire or tenure of employment or any term or condition
thereof, except to the extent permitted under Section 8(a) (3) of the
Act.
(b) Engaging in surveillance of union activities and meetings.
(c) Interrogating employees concerning their union activities, and
utilizing application forms which require prospective employees to
disclose their union affiliation, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(d) Threatening employees with discharge or reprisals for engag-
ing in union activities.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to join or assist Teamsters,
Chauffeurs, Warehousemen & Helpers Local No. 87, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to re-
frain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the 16 employees named. in Appendix A of this Order
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to seniority or other rights
and privileges and make them whole for any loss of earnings suffered
by reason of the discrimination against them, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Post at its plant at Bakersfield, California, copies of the
notice attached hereto marked "Appendix A." 3 Copies of said notice,
8In 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 "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
BAKERSFIELD FOODS CO., INC. 1133
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained for a
period of 60 consecutive days thereafter in conspicuous places in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Order, as to what steps
it has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that Respondent has discriminated
in regard to the hire and tenure of employment of Joe Castaneda,
Mary Smith, Emigean and Vincent Sanchez, Alice Hernandez, Rosie
Perez Padilla, Juan Perez, Jessie Luera, and Engeline Ponce.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activity in behalf of,
Teamsters, Chauffeurs, Warehousemen & Helpers Local No. 87,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or any other labor organization of
our employees, by discriminating in any manner in regard to hire
or tenure of employment, or any term or condition thereof, except
to the extent permitted under Section 8(a) (3) of the Act.
WE WILL offer the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to seniority or,other rights and privileges,
and make them Whole for any loss of pay suffered as a result of
our discrimination against them:
Bob G. Bunch Mildred Mann
Mary J. Calderon Sophia Merck
Lupo Castaneda Angela Prendez
Mary Fitch Felicitas Prendez
Violanda Hinojos Martha Sagayno
Tom P. Humecky Isabel Sanchez
Joe Lopez Myrtie Stamper
Henry W. Mann Virginia Woods
WE WILL NOT interrogate our employees concerning their union
activities, or use application forms which require prospective
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to disclose their union affiliations, in a manner con-
stituting interference, restraint, or coercion in violation of Section
8 (a) (1) of the Act.
WE WILL NOT threaten employees with discharge or reprisals
for engaging in union activity.
WE WILL NOT engage in surveillance of union meetings and
activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist any labor organization, to join or
assist Teamsters, Chauffeurs, Warehousemen & Helpers Local No..
87, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,.
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the National
Labor Relations Act.
All our employees are free to become or remain, or refrain from.
becoming or remaining, members of the above-named or any other-
labor organization.
BAKERSFIELD FOODS Co., INC.,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint, as amended, alleges that Respondent discriminated against 36
named employees 1 by layoff, discharge, and failure to recall to work on various,
dates between May 14 and July 30, 1958, because of their activities in behalf of
Teamsters, Chauffeurs, Warehousemen & Helpers Local No. 87, International.
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein
called the Union. The complaint further alleges that Respondent engaged in conduct.
constituting unlawful interference, restraint, and coercion of employees by inter-
rogation of, and threats to, existing and prospective employees; failure to hire-
prospective employees who were union adherents; causing employees to work late.
so as to forestall their attendance at a union meeting; and engaging in surveillance
of a union meeting. Respondent's answer denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Bakersfield, California, on October 6, 7, 8, 9, 10, and 30, 1958. The parties were
represented by counsel and were afforded full opportunity to be heard, to examine
During the hearing, the General Counsel's motion to dismiss the cases of 11 was,
granted.
BAKERSFIELD FOODS CO., INC. 1135
and cross-examine witnesses, and to introduce relevant evidence. Motions to se-
quester witnesses and to take a view of Respondent's premises were granted. The
parties were given an opportunity to argue orally and to file briefs. Oral argument
was waived and a brief has been received from the General Counsel. On November
28, 1958, Respondent's counsel wrote that no brief was being submitted because
its representation of Respondent had ceased.
It is to be noted that on December 29, 1958, Respondent's counsel notified the
Trial Examiner that Respondent, together with an affiliated company, had filed
bankruptcy proceedings and that a first meeting of creditors was scheduled for
January 9, 1959; a copy of this latter communication was forwarded to the General
Counsel. Nothing further on the topic has been submitted by either side and the
present status of the bankruptcy proceeding is not known.
A communication from the General Counsel dated December 23, 1958, consisted
of a motion to amend the complaint and reopen the hearing to add one dischargee.
Thereafter, on January 14, 1959, the General Counsel moved to withdraw his motion;
the motion to withdraw is hereby granted. Ruling having been reserved upon Re-
spondent's motion to dismiss the case of certain of the complainants, it is disposed
of consistent with the findings hereinafter made.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Bakersfield Foods Co., Inc., is a California- corporation which maintains its prin-
cipal office and plant at Bakersfield, California, where it is engaged in the processing
and canning of fruits and vegetables, primarily potatoes. During the course of its
business operations, Respondent annually ships fruit products valued in excess of
$50,000 to points outside the State of California. I find that the operations of
Respondent affect commerce and that it would effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers Local No. 87, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a
labor organization admitting to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues; introduction
The primary issue herein is whether Respondent engaged in wholesale discrimi-
nation against its employees in terms of layoffs, discharges, and failure to reinstate
laid-off employees in an effort to combat their organization by the Union.
Respondent's plant is a relatively new operation and was unorganized at the time
material herein. The operation had three divisions. The first, known as the fresh
line, involved the grading and sacking of fresh potatoes which were then sold as
such. Certain smaller potatoes were diverted from the fresh line and transferred
to the opposite side of the plant where they were processed through the canning line;
this was a second phase of the operation. Still a third operation, which did not
commence until July, was known as the flake line; therein potatoes were treated
by a new process and packed in flake form. It appears that the potatoes used on
the flake line were those which would otherwise have been canned. Only the fresh
line and the canning line were in operation at the time the Union commenced its
organizational campaign.
Respondent's supervisory structure commenced at the top with President Marvin
Berry who, with his wife, owns all the corporate stock. Next in line are Vice Presi-
dent and Office Manager George Jackson and Plant Manager Richard Schilling.
The remaining supervisors identified herein were Foreman Harold Dean Barker who
was primarily in charge of the outside grader; George McCraw, foreman of the fresh
line; Marion Lawhorn, canning supervisor; Frank Duarte, canning foreman; and
Viola Buono, floorlady in the canning department and in charge of all female
employees.
It is to be noted that Respondent's fresh line operations would have come to a
temporary close at the end of the potato season in California although there is
evidence that Respondent had planned to purchase potatoes from growers in other
States. Accordingly, the claim of discrimination, in part at least, is predicated upon
an alleged acceleration of the reduction in force.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union commenced organizational efforts at Respondent's plant during the
first week of May 1958, after several union officials had notified Plant Manager
Schilling of their intent to organize the plant. On or about May 12, union representa-
tives appeared at the plant gate and distributed union cards to employees. Many
were signed forthwith in the observation of company officials and others were
retained and subsequently mailed in. As of May 14, 39 or 40 employees had signed
cards and on that date, the Union sent a wire to Respondent requesting recognition
as bargaining representative; it also scheduled a meeting of employees for the eve-
ning of May 14. A representation petition was filed on a date not disclosed herein
and a hearing thereon was held on or about June 4. There is considerable evidence
that Respondent's top officials took immediate steps to counteract the union campaign.
B. Opposition to the Union; interference, restraint, and coercion
Before turning to Respondent's steps to meet the union organizational campaign,
it is in order to point out that even before the commencement of the union campaign
in May, Respondent had striven to eliminate all members of labor organizations from
its employ. From the inception of its operation in March 1958, Respondent required
applicants for employment` to fill out an application- which included two questions
asking the applicant if he was a member of a union and, if so, to identify it.2
Thus, Viola Buono, the head floorlady in charge of all the female employees, entered
Respondent's employ early in April of 1958. Originally in charge of the fresh line,
she was soon transferred to supervision over the canning line and, as part of her job,
interviewed female applicants for work. Buono testified, and I find, that her instruc-
tions from Berry were to tear up the application and not hire the applicant if the
particular form disclosed union membership by the applicant; Buono followed these
instructions.3
At the commencement of the union campaign in May, Berry took steps consistent
with his prior instructions to Buono. He spoke to Foreman Harold Barker of the
outside grader, as the latter testified, and told him to ascertain who had signed union
cards and to discharge them immediately as he did not want them in his employ.
He also told Buono that he had learned his employees were signing union cards,
that he would not allow anyone in his plant who had signed a card and that she was
to immediately discharge anyone she detected "talking union."
Indeed, Berry participated personally in this antiunion campaign. Foreman
Barker testified land I find that Berry told the crew of girls on the outside grader that
if he found out who had joined the Union he did not want them around the plant; this
took place several times early in May after the distribution of literature com-
menced. Rosie Perez of the grader crew similarly testified arid I find that Berry
questioned the group whether they knew anything about the Union; when they
replied in the negative, Berry responded that if he learned they had joined the Union
he would fire them.4
Barker further testified, and I find, that on or about May 15, Berry again told him,
in the presence of Vice President Jackson, that if he learned the identify of any card
signers he was to discharge them, that he was to inform the employees that there
was no work, and that he was to hire a replacement employee. As will appear,
Respondent's records disclose that it proceeded in precisely this manner, specifically
discharging employees and simultaneously,. hiringreplacements.5
Foreman George McCraw of the fresh line also participated in this conduct.
Several'times during the morning of May 14 McCraw approached Employee Henry
Mann , a jigger in the fresh line. He asked Mann, who had previously signed a. card,
2 Date in May or early in June and after much of the conduct attacked herein had
taken place the form was changed to eliminate these queries ; this was done pursuant to
advice from a labor relations consultant in the area.
3 Berry denied ever giving such an instruction to Buono. Not only was Buono a forth-
right and meticulous witness with an excellent recollection, but the record, as will appear,
is replete with instances of similar statements and expressions of discriminatory motive
by Berry. Accordingly I do not credit his testimony in this respect as well as in other
instances to be set forth below. In addition, as it would unduly lengthen this report to
set forth all instances of employer resistance to the union organizing campaign, some are
not included herein.
4 Berry testified that the girls would ask him what he thought of the Union and that he
merely replied that it would not do them any good. His denial is not credited here as
elsewhere where in conflict with the testimony of other witnesses.
6 Jackson was not questioned concerning this incident but personally took steps to
ascertain the identity of those who attended a union meeting, as described below.
BAKERSFIELD FOODS CO., INC. 1137
if he had done so. Mann did not reply and soon thereafter McCraw repeated the
question. Mann replied that this was none of McCraw's concern. McCraw replied
that Mann would be discharged if he had signed a card, again asked Mann's opinion
of the Union and Mann replied that he was in favor of the Union 100 percent. Both
Mann and his wife, who also worked on the fresh line, were discharged that
afternoon.6
The credited testimony of Robert Bunch discloses that McCraw, similarly and
repeatedly during a 1- or 2-day period culminating on May 14, asked Bunch and
employee Tom Humecky if they had signed union cards; stated that Respondent
would keep out the Union; and said that anyone who accepted a union card would
be. discharged. McCraw discharged these two employees on May 14 almost im-
mediately after announcing that he had heard they had signed cards. I do not credit
McCraw's testimony that these two men were discharged because they were not
competent and that he did not know whether they had signed a union card. The
record is entirely silent as to McCraw ever discussing with either of these two em-
ployees any matter involving their competence. It is further to be noted that
McCraw's testimony was contradictory. In the case of Mann, assigned to the B
line, the discharge was predicated on lack of work. Mann however was a jigger but
was not assigned to the job of Bunch or Humecky who performed similar work else-
where on the fresh line and were discharged one-half hour later. Moreover, new
employees were seen in the Mann jobs 3 days later.
Surveillance of the Union Meeting
A union meeting was scheduled at 8 p.m. on the night of May 14 and leaflets
announcing the meeting and the meeting place, a hall in Bakersfield, were distributed
to employees at the plant. Many employees attended but some were required to
work late that evening and finished work too late to attend.? This was discussed by
Foreman Barker, Foreman McCraw, and Vice President Jackson after the latter
brought tip the topic. Foreman Harold Barker testified and I find that Vice Presi-
dent Jackson stated to Barker and Foreman McCraw that someone should attend
the union meeting and that he would like to find out which of Respondent's employees
did attend. Both the testimony of McCraw and Jackson discloses that Jackson sug-
gested management coverage of the meeting.
Charles Ciolino, an organizer for the Union, had arranged for the meeting and was
present at the union hall. As employees Myrtie Stamper and Virginia Woods testi-
fied, various girls entered the hall and informed Ciolino that other employees were
reluctant to enter because they had observed Jackson in the vicinity. The record
discloses that Jackson drove a white Thunderbird and that his car was well known to
employees. Ciolino requested that someone who knew Jackson accompany him out-
side and point out Jackson; Woods volunteered for the job. She observed Jackson
standing on the sidewalk near the hall alone, and pointed him out to Ciolino. This
was shortly before 8 p.m.
According to Ciolino he-saw Jackson sitting in a car; noticed that he was alone;
and asked what he was doing there. There was no answer. Ciolino returned to the
vicinity of the hall and observed Jackson alight from the vehicle. Jackson proceeded
to walk up the street, stop at each car, gaze at the license plate and make a brief
notation, manifestly a recording of the license number. Jackson covered both sides
of the street and then returned to his car. According to Ciolino, Jackson was on the
scene for over 1 hour culminating at approximately 9 p.m. at which time Ciolino
returned to the union hall.8
0 McCraw • testified that Mann was laid off because that portion of the fresh line to
which Mann was assigned, the B line, closed down that day ; that Mann asked if this
had anything to do With the distribution of union handbills ; and that he, McCraw, replied
in the negative. McCraw, however, together with Jackson, was interested enough to
engage in surveillance of the union meeting that night. Accordingly I credit the testi-
mony of ,Bann, an intelligent and honest witness in my belief, and reject that of McCraw.
a I find that the evidence is not sufficiently clear to support a finding that Respondent
deliberately caused a machine to break down in order to bring about night work that
evening and a reduced attendance at the meeting. In this respect, I credit the testimony
of Plant Manager Schilling, who impressed me as the most reliable of Respondent's
witnesses, that this was not done.
s These findings are based upon the testimony of Ciolino which is corroborated by that
of Woods and Stamper. Jackson and McCraw testified in substantial accord that they
both went in the former's car , that both at all times sat in the car and that their stay
lasted from 10 to 20 minutes ; they denied copying any license numbers. Jackson further
508889-60-vol. 12 3-7 3
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Late that night or the following morning Jackson returned to the plant and told
Foreman Barker that he had a list of names of those who had attended the meeting.
He asked if Barker was prepared to discharge anyone he named and Barker replied
that he was. Jackson told Barker that he was proceeding to the plant parking lot
to check the registrations of the cars whose licenses he had copied.9
Jackson proceeded to the parking lot, returned to the plant and told Barker that
he had a list of persons for him to discharge. He specifically named Stamper and
Woods among others whose names Barker did not recall and, as will appear, Barker
did discharge these two employees around noon on May 15. Jackson also had
Barker look over another list of persons he had selected for discharge but Barker
pointed out that none of them were in his department.io
The Decision to Reduce Operations
It is the contention of Respondent that a special meeting of the board of directors
was held on May 14. The purported minutes thereof, as allegedly prepared by
Mrs. Seneva Berry, the wife of Marvin Berry and his personal secretary, were intro-
duced in evidence; they read as follows:
MINUTES OF SPECIAL MEETING
OF THE
BOARD OF DIRECTORS
OF
BAKERSFIELD FOODS CO., INC.
A CORPORATION
A special meeting of the Board of Directors of the Bakersfield Foods Co., Inc.,
a corporation, was held at 220 Industrial Street, Bakersfield, California, on May
14, 1958 at two o'clock P.M., and consented to in writing by all of the Directors.
Present were the following Directors: Marvin E. Berry, Seneva J. Berry and
George V. Jackson. Also present was R. H. Schilling, Plant Manager.
The meeting was called to order by Marvin E. Berry, President.
On motion of Seneva J. Berry, seconded by George V. Jackson, the
following Resolutions were adopted by unanimous vote:
RESOLVED: That due to the depressed fresh potato market, it was decided
that we would cut the labor supply to half production on our fresh line. We
are advising our field crews that we will not work on weekends and we will
only dig on orders. It was decided that we would cut all maintenance
workers, welders and clean-up crews to a bare minimum. It was agreed that
we would inform all of our foremen to cut everyone off of the payroll as
much as possible.
It was decided that we did not need the floor lady for the few days
remaining and that we would give her her salary in full, plus $200.00 for
moving back and forth from Santa Maria. It was also decided that we would
lay off the lye peeler man because of the mistakes that he had been making
in handling the lye peeler. It was also decided to lay off the No. 10 can line
as we have plenty of No. 10 canned potatoes on hand.
Due to the fact that we have so much money invested in our new project
and we have so much money invested in stored canned potatoes that we
have been unable to sell, we decided that as soon as possible to cancel our
contracts with all peewee potato growers that we have contracts with and
as soon as possible, close down our cannery at this time.
No other business coming before the meeting, it was adjourned.
DATED: May 14, 1958.
(S) SENEVA J. BERRY,
Secretary-Treasurer.
testified that he never saw Ciolino prior to this hearing. I have credited the ;testimony
of Ciolino who impressed me as an honest witness. Furthermore, it is buttressed by that
of Foreman Barker concerning Jackson's conduct on the following day.
° In California the owner of an automobile is required to display the registration certifi-
cate prominently in the vehicle so that the certificate with the name and address of the
registered owner may be read by one outside the vehicle.
10 This finding is based upon the credited testimony of Barker ; Jackson denied dis-
cussing this topic with him but here as elsewhere Jackson's testimony is not credited.
Respondent developed testimony that Barker threatened at one time to quit on the spot if
he was not given a raise, presumably to show his bias against Respondent. The simple
answer however is that Barker did receive the raise he requested and I attach no sig-
nificance to this line of inquiry.
BAKERSFIELD FOODS CO., INC. 1139
Floor-lady Viola Buono testified that she was called in by Berry at 9:30 p. m: on
May 14 with the only other.person Mrs. Berry present. Berry announced that he
had received a wire from the Union announcing the signing up of 95 percent of his
employees and requesting a meeting. He then stated, according to Buono, that
"his plant was not going union. He was closing. He wasn't going to operate under
any union organization whatsoever . I am closing the plant down tonight." He
announced his intention to notify Plant Manager Schilling immediately to the same
effect. Berry further said that he and his wife had discussed the matter at dinner
that night; that he was pleased with Buono's work; and that he was going to give
her $200 toward expenses as well as a letter of recommendation.
Vice President Jackson, Berry, and Mrs. Berry testified that the three of them
were present when this conversation with Buono took place. According to Jackson„
Berry stated that the canning operation was not successful and that they could no
longer afford a floorlady. According to Mrs. Berry, her husband announced that
they were encountering financial difficulties and that it was best to let Buono go•
because they were shutting down the cannery; she denied, as did her husband, that
there was any reference to the Union. Berry testified that be told Buono the com-
pany was short of funds, that Respondent had decided to cut down by letting her
go, and that they were shutting down; he added that he and his wife were going on
their vacation.
I credit the testimony of Buono herein and reject that of the two Berrys as well
as that of Jackson for the reasons set forth below. I also find that the minutes
were either false or in large measure do not reflect what actually took place at
this special meeting, assuming that such a meeting was held.
(1) Buono has been found to be a truthful witness whereas the contrary has
already been demonstrated with respect to the testimony of Berry and Jackson.
(2) If Jackson knew at 2 p.m. on May 14, the hour of the special meeting as
reflected in its minutes, that Respondent was reducing its force, laying off Buono,
laying off the No. 10 can line and deciding "as soon as possible to . . . close down
our cannery at this time," one fails to see how he could have been sufficiently inter-
ested to engage in surveillance of the union meeting later that evening. As office
manager his interests lay elsewhere, yet he proceeded to spend considerable time
ferreting out the identities of those who attended a union meeting at a time when
Respondent was allegedly about to close for economic reasons.
(3) Berry testified that he told Buono they were shutting down and that he and
his wife were going on vacation. The fact is that Respondent did not shut down
and that the Berrys did not go on a vacation. Indeed, as will appear, Respondent
hired new employees at this very time and on succeeding days.
(4) Schilling was allegedly present at this special meeting but was not questioned
about it. Buono's testimony demonstrates that he was to be spoken to after she
was.
(5) Mrs. Berry testified that Buono was told the cannery was being closed down.
But the cannery was not closed down until June 13 when canning was stopped,
presumably for legitimate reasons.
(6) The very language of the minutes of the special meeting is inconsistent
with the testimony of Jackson and that of the two Berrys. The minutes state that
"as soon as possible [Respondent would] close down our cannery at this time."
The urgency of the special meeting is hardly to be appreciated in view of the fact
that the cannery operated for another month.
(7) Buono's testimony as to Berry's remarks on this occasion is entirely con-
sistent with his operation of the application card system whereby union employees
were screened out; his statements to Foreman Barker to discharge anyone who had
joined the Union; and his previous statements to Buono to dismiss any union
supporters.
(8) The minutes state the foremen were to be told to lay off employees. While
employees were laid off, discriminatorily as will appear, Respondent proceeded to
hire replacements.
(9) Other testimony discloses that Respondent's claimed reason for terminating
Buono is false, thus casting further doubt upon Berry's credibility herein. Mary
Lauria, not a complainant herein, was laid off on or about May 12; she testified that
she sought work on or about May 16 and was interviewed .by Berry. In the course
of the interview he questioned Lauria, who had worked in the cannery under Buono,
whether Buono had spoken to her about joining,the Union. When Lauria replied
in the negative, Berry replied that "he had to let her [Buono] go because she was
probably the one that started everything." Lauria impressed me as an honest wit-
ness and her testimony has been credited herein.
I can only conclude on this record that for reasons not disclosed herein, whether
relating to her knowledge of Respondent's activities in resisting the union campaign
1_140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or otherwise, Respondent decided to get rid of Buono and to prepare the minutes
so as to reflect action consistent with their testimony. Indeed, Berry's own testi-
mony discloses that regular meetings of the Board were held monthly and that the
procedure for holding a special meeting was simply for Berry to call over his wife
and Jackson from their adjacent desks and hold the meeting. And while he claimed
that he considered a shutdown no more important than a reopening, subsequent
reopenings appear to have been carried out without the need of any special meetings.
Hence, while there may have been a special meeting, I believe it was not called
for the purpose reflected in the minutes but rather to prepare a self-serving docu-
ment to support discriminatorily motivated action against its employees.
I find, as alleged in the complaint, that Respondent unlawfully interrogated its
prospective and existing employees concerning union activities, threatened employees
with discharge and reprisal for engaging in union activities, and engaged in surveil-
lance of a union meeting, thereby interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act, within the
meaning of Section 8(a) (1) thereof.
C. The discharges
Bob G. Bunch and Tom Humecky were employees on the fresh line under Fore-
man McCraw. They worked together and their job was to jig or pack potatoes and
sew them into sacks. Bunch testified that he and Humecky had received union
cards at the plant gate. Soon thereafter, Foreman McCraw asked if they had re-
ceived such cards and the men admitted that they had. McCraw promptly an-
nounced that anyone who signed a card would be discharged. McCraw kept re-
peating this and similar remarks to the two men as well as other employees for
several days during the period immediately preceding May 14.
On the last day of their employment which Respondent's records disclose to
have been May 14, McCraw approached the two men and stated, according to
Bunch, "I heard you two signed cards. You guys have talked to the Union." The
two men made no reply and McCraw left only to return with their pay checks "a
little later." The men asked the reason for their discharge and McCraw merely
replied that he could discharge anyone "for any reason any time I get ready."
McCraw testified that he discharged the two men approximately one-half hour
after he terminated two other employees, Henry and Mildred Mann, whose cases
are discussed below. Henry Mann worked on the B line whereas it appears that
his wife Mildred was assigned to the No. 2 line where potatoes not meeting the
quality of grade 1 potatoes are sacked. McCraw claimed that Bunch and Humecky
were "playful and energetic" and did their work sloppily by allowing potatoes to
run over the sacks. He was asked if he had ever warned them about doing their
jobs improperly but, significantly, replied only that he had tried on several occasions to
show them how to do the job properly. I find that Bunch, who also appears in
the transcript as Robert Bunch, and Humecky received no warnings about their
work.
What is -noteworthy herein is that the two Manns, at least one of whom worked
on the nearby B line, a most similar operation, were discharged one-half hour
previously, allegedly for lack of work because the B line, this being the line which
handled potatoes smaller than the A size, was being closed down. Yet the two
Manns were not offered these jobs; to the contrary, McCraw proceeded to hire two
new employees later that day. Furthermore, as has been noted, the purported
minutes of the meeting of the board of directors at 2 p.m. on May 14 contains a
resolve to "cut the labor supply to half production on our fresh line." Respondent
has not managed to reconcile these two conflicting policies.
Here as elsewhere I do not credit McCraw's version and find, on a preponderance
of the credible evidence, that McCraw selected Bunch and Humecky for discharge
because he considered them to be union members or supporters. And even on his
own testimony, McCraw drove to the vicinity of the union meeting later that eve-
ning and engaged in surveillance, hardly an act by one who was indifferent to union
activities.
Henry Mann was a jigger and his wife Mildred Mann a grader on the fresh line
under Foreman McCraw. It appears that he was on the so-called B line while she
was assigned to the No. 2 line. Mann's job consisted of filling sacks of potatoes
and setting the sacks on the scales.
On the morning of May 14, Foreman McCraw spoke to Mann three or four
times. On the first occasion McCraw asked Mann, who had previously signed a
union card, if he had signed a card but Mann made no response. Later that morn-
ing, McCraw returned to Mann's work station, again asked if Mann had signed a
BAKERSFIELD FOODS CO., INC. 1141
card and questioned him as to his opinion of the Union. Mann replied that he did
not consider this any of McCraw's business. McCraw then stated "If you sign that
card you will be fired; and what do you think of the Union?" Mann replied that
he was in favor of the Union "100 percent." McCraw made no reply and left
immediately.
At approximately 1:30 p.m., Mann observed Berry hand some papers to McCraw;
the latter immediately approached Mann and handed some of the papers to Mann,
stating that these were the pay checks in full for the two Manns. McCraw stated
that Mann was fired and when Mann asked for the reason McCraw replied only that
his work had been satisfactory; Mann then informed his wife of the decision.
As the two Manns left, they encountered Berry and Mrs. Mann asked why they
had been discharged. Berry replied that Respondent was shutting down the plant;
as indicated, this was not true. Mrs. Mann, an intelligent and straightforward wit-
ness, testified, and I find, that she asked Berry why she had been discharged and
Berry replied that she was on the B line and that it had been shut down. She replied
that such was not the case because she had been working on the No. 2 line. Berry
then stated that "Well . .. we don't intend to have this plant go union." 11
McCraw testified that on May 14 he had four people including Mann, but not his
wife, on the B line. That morning he allegedly told Mann that the B line was being
closed down because of the low price of potatoes, that Mann was to be laid off and
that if Mann so desired he, McCraw, would also terminate Mrs. Mann from the No.
2 line so that the two could go to another plant where they could continue to work
together; Mann allegedly agreed to this. Mann then asked if the layoff had any-
thing to do with the distribution of handbills at the plant gate and McCraw replied
that it did not.12
McCraw further testified that he had used Mann at various posts in the plant but
that he had not performed too well; in essence he claimed that Mann had tried hard
but that the results were not satisfactory. I do not credit McCraw's testimony herein
as elsewhere for several reasons.
(1) McCraw conceded that he might have used Mann on the No. 2 line at some
time or other. Yet approximately one-half hour after Mann was fired, McCraw
discharged two employees of the No. 2 line, Bunch and Humecky, and did not
consider Mann therefor. McCraw's testimony was silent as to any deficiencies on
the part of Mann on the No. 2 line.
(2) Mann testified, and I find, that 3 days after his discharge he and his wife
drove back to the plant to ascertain whether it was running and Mann observed two
new employees working at both his post and that of his wife.i3
(3) The record is silent as to Mann receiving any warnings about unsatisfactory
performance of his duties. McCraw displayed no reluctance to threaten employees
with discharge for union activities and I do not believe therefore that he would have
been reluctant to warn an employee of the possibility of discharge for unsatisfactory
work had such been the case.
(4) Berry handed the pay checks for the two Manns to McCraw and shortly
thereafter told Mrs. Mann that he did not intend to have a unionized plant.
(5) Respondent's records show, as the General Counsel's brief points out, that
nine new employees were hired by Respondent on May 15.14 In addition, 8 new
employees were hired on May 17; 3 on May 18; 3 on May 19; 1 on May 20; 1 each
on May 22, 23, and 26; 4 on May 27; 2 on May 28; 12 on May 29; 2 on May 30; 2
on May 31; 3 on June 1; 2 on June 2; 2 on June 4; 1 on June 6; 2 on June 9; 1 on
June 10; and 1 on June 11. This is hardly indicative of a reduction in force. More
particularly, it does show that vacancies existed at Respondent's plant at this very
moment. Furthermore there were 88 employees on May 14; 94 on May 19; 81 on
"Berry testified that the two Manns asked him why they were fired and that lie told
them lie did not know why they were laid off. Mann allegedly asked if it was because of
union activities and Berry then stated that if they were on the B line there was no
alternative but to release them. He denied any knowledge of their signing union cards.
For reasons heretofore expressed as well as those set forth below, I do not credit Berry's
testimony in this respect.
12This closing down of the B line meant that the B size potatoes then went into
processing for canning; the remainder of the fresh line continued in operation until
June 1.
13 Obviously someone would have been in his wife's post because the No. 2 line did not
close down. Respondent's claim was only that the B line closed.
14 The brief states that these nine were hired on May 16, whereas Respondent's records
seem to disclose May 15 as the date. In either event the conclusions herein would not
be affected.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 21; and 91 on May 29 . At best this indicates a fluctuating work force but
hardly a reduced one.
I find therefore that Respondent discharged Henry Mann because he was con-
sidered a union sympathizer . _ I further find that his wife was selected for discharge
because of their relationship . But for the discriminatory selection of her husband
for discharge , Mildred Mann would not have been terminated . Accordingly her dis-
charge is equally discriminatory.
Mary Calderon was an inspector of potatoes in the cannery under Floorlady
Buono. Calderon was one of a group which Buono rated as the best qualified
workers on the day crew in the cannery and no claim is made that her work was
unsatisfactory ; nor is any such claim made with respect to the group of girls whose
cases are discussed hereinafter . On the evening of May 15 Foreman Lawhorn told
Calderon and a group of cannery girls that Berry was closing the plant but that they
would be called back when the flake operation started. It was also announced that
Respondent wished them to work on the following morning; Calderon and other
girls reported at that time , worked 3 hours and were paid off by Berry. The latter
told them on this occasion that he and his wife were leaving on a 3-month vacation.
The girls spoke up and pointed out that there were potatoes on the canning line
which had not been finished but Berry told them to leave the potatoes as they were,
stating "They are just going to stay there . I am going to just close up everything."
. While Calderon 's union activities were negligible , consisting solely of signing a
union card at her home , this is not relevant herein , for the record is clear and I find
that she along with others were terminated as part of a plan to eliminate suspected
union adherents or to materially reduce operations so as to forestall the union
campaign.
(1) The cannery , despite the termination of the girls , operated some additional
days until May 21, closed down until May 27 , and then resumed operations until
June 13. Accordingly it is clear that the cannery was not closing at that time.
(2) As pointed out on May 15 or 16 Respondent hired nine new employees,
hardly an action consistent with a shutdown.
(3) Berry and his wife never left on their vacation . Although Berry testified
that this was brought about because of economic reasons , he further testified that
the negative decision was reached either June 1 or 15. This however is not deemed
to be compatible with a claim that there was a layoff of employees on May 15 be-
cause Berry was leaving on his vacation.
(4) A more probative reason for the close down is Berry's statement to Buono
at 9:30 p.m. on May 14 that he was closing down because he would not operate
under a union organization.
(5) It is also in order to treat with another of Respondent 's claims in this respect
which bears upon the case of Calderon and a number of others . The cannery line
put out two sizes of cans , a size 300 which contains 0.6 pound of potatoes and a
size 10 can for commercial usage which contains 4.8 pounds . The respective cases
with less cans in the number 10 case are identical in total weight.
Respondent has attempted to show that on May 21 it ceased production of the size
300 cans and that on May 27 when it reopened it proceeded only to process size
300 cans. This overlooks the fact that the canning line was so constituted that pro-
duction could be divided between the two sizes in any manner or confined solely to
one. The fact is that after May 27 Respondent concentrated solely on the size 300
can, as it claims, but its production records show a marked increase in the produc-
tion of that size after May 27. This took up the slack caused by the dropping of
production of the size 300 cans in large measure if not in full. As Foreman Barker
of the grader testified , this change did not affect the total volume of potatoes
processed.
In sum, Respondent did eliminate production of one size but stepped up produc-
tion of the other . This hardly supports Respondent 's claim of a reduced operation
particularly in view of the fact that it was hiring employees at that time . Indeed
Respondent's payroll shows more employees immediately after May 27 than prior to
the shutdown . This is corroborated by the testimony of Mary Lauria, not a com-
plainant, who worked on the canning line during the period after May 27, that the
number of girls on the line was not reduced.
Mary Fitch was a filler in the cannery under Floorlady Buono . The roster of
the regular crew maintained by Buono discloses that Fitch was one of the best
qualified group which Buono hired first when work was available. The facts sur-
rounding her case are substantially the same as those involving Calderon , i.e., she
was paid off by Berry around noon on May 16 and the latter announced that he
was going on a vaction and closing down the plant . There is the additional fact
that approximately 2 weeks later Fitch called the plant office and was told that
BAKERSFIELD FOODS CO., INC. 1143
Respondent was not hiring; as shown Respondent was indeed hiring throughout this
entire period and the plant was in operation except for the May 21 to 27 shutdown.
I find under all the circumstances that for the reasons set forth above in the case
of Calderon, Fitch was discriminatorily laid off.
Violanda Hinojos also on the top cannery crew worked with Mary Fitch and
Mary Calderon and was laid off under identical circumstances. Felicitas Prendez
worked as a sorter in the cannery under Floorlady Buono as did Complainant Angela
Prendez who did not testify herein; both Prendez girls were at work on May 16
when they were discharged by Berry along with Fitch and Calderon. Also in the
group was Martha Sagayno and Isabel Sanchez both workers on the cannery line.
Lupe Castaneda who did not testify was another girl in the top cannery crew of
Floorlady Buono. Vice President Jackson testified that her termination resulted
because she did not show up for work one day. However, he based this answer solely
on the claim that her card was absent from the timecard box. Respondent's payroll
records disclose that Lupe Castaneda worked 3 hours on May 16, exactly the same
number of hours as the rest of the cannery girls in this group that were terminated
by Berry. Accordingly I do not accept Jackson's testimony that this complainant
was not terminated by Respondent and to the contrary I find that she was on May
16 together with the others.
Any lingering doubt as to Berry's motivation herein is dispelled by the following
evidence of specific discriminatory motivation in the case of Sagayno. Mary Lauria,
whose testimony has previously been credited, was laid off on or about May 12 and
applied for work on or about May 16. Lauria, who had worked under Buono in
the cannery, was referred to Berry who checked a list of names and announced that
Lauria's name was not upon it. He then asked if she had been given any union
cards and Lauria replied in the negative. He further asked if she had a friend who
wanted work and Lauria named Martha Sagayno. Berry checked his list, apparently
found Sagayno's name and stated "That name wasn't good." As noted, Sagayno's
employment had just been terminated along with many of the cannery crew. Berry
instructed Lauria to report for work on Sunday, 2 days later, and Lauria was put
to work then as were some others. I find that Berry's conduct in this instance
demonstrated unwillingness to employ Sagayno, despite the vacancy. And despite
Respondent's attempt to demonstrate the contrary, the fact is that there is no evidence
that Sagayno, on Buono's preferred list, was anything but a competent employee.
I find for the reasons previously stated that Hinojos, Felicitas Prendez, Angela
Prendez, Martha Sagayno, Isabel Sanchez, and Lupe Castaneda were discrimina-
torily laid off or discharged by Berry on May 16 as part of his shutdown to combat
the union organizational campaign.
Myrtie Stamper and Virginia Woods worked on the outside grader under Foreman
Barker. They accepted and signed union cards at the gate on or about May 13 and
were questioned by Barker as to whether they had signed cards. Both attended the
union meeting on May 14 in Woods' automobile which was parked outside the hall.
On the following day, May 15, the entire grading crew was sent home after 5
hours of work, Barker stating that he would call them when needed. Both Stamper
and Woods returned to the plant on May 16 and noticed that the outside grader was
in full operation, but with an entirely new crew. They asked Barker why they had
been terminated and he replied that Berry had instructed him to discharge the two
girls because their names were on a list of those who had joined the Union. Woods
and Stamper specifically observed two employees performing their (the complain-
ants ) customary work assignments.
Barker's testimony is entirely corroborative of that of Stamper and Woods. He
testified that on the day after the union meeting, Berry told him he knew Stamper
and Woods had attended the meeting and he believed they would support the Union.
He told Barker to discharge the two girls and merely tell them that there was no
further work for them. Barker protested that they were his two best graders, but
Berry replied, as Barker testified, that "he didn't give a damn if he had to shut the
place down to get rid of them." Barker carried out his instructions. He also fully
supported the testimony of Woods and Stamper that a new crew was hired for
both he and Berry got busy that very afternoon and recruited a new grader crew
by telephone. It is clear and I find that Respondent discharged Stamper and Woods
because of their union activities.15
15 It is of interest to note that Berry at about this time first told Barker, according to
the latter, to discharge employees Alice Hernandez and Rosie Perez because he believed
they had attended the union meeting. Within 5 minutes Berry revisited Barker and told
him he had given him the wrong names. Barker, who in the interim had told the latter
two girls of the decision, then reversed himself. It was immediately after this that
Berry selected Stamper and Woods for discharge.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sophia Merck was a cannery employee under Foreman Duarte and attended the
union meeting of May 14.16 She was employed as a sorter of potatoes for several
days ending on or about May 20 at which time Berry shut down the cannery, as
set forth , for the period between May 21 and 27, telling Merck that he would call
her back. Merck was not called 'back and returned several times in search of em-
ployment, including a visit on or about May 30. On the last occasion she saw
Berry engaged in a demonstration to girls of how to sort potatoes. She asked
Berry for work and he replied that he did not need anyone . Merck, who is listed
in Floorlady Buono's book as one of the top crew , observed someone else in her
former position at the time and has never been called back despite the heavy hiring
at the plant.
While her case is not free from doubt several incidents support the General
Counsel's position herein . Thus employee Alice Hernandez , whose case is discussed
below , was -telephoned by Berry the day after the union meeting and was asked if
she had attended . Hernandez replied in the negative and was told by Berry to
maintain silence on the topic as anyone who discussed it would be terminated; he
then told Hernandez to report for work which she did . Berry similarly telephoned
Rosie Perez Padilla 17 approximately 3 days after the union meeting and held a
similar conversation . As a result Padilla was put back to work and worked almost
full time until June 13. 1 find under all the circumstances that Merck was not re-
called to work after the May 21 to 27 shutdown because of her suspected union
sympathies.
Joe Lopez was employed on the No. 10 can line and his duties involved the
placing of these cans in the machine . He signed a union card outside the plant
gate in the presence of Foreman Barker approximately 2 days before the union
meeting but did not attend the meeting . On May 15 Foreman Duarte of the can-
nery discharged him stating only that Lopez was not needed.
On or about June 1 Lopez went to the plant , spoke with a supervisor substantially
identified as Cannery Supervisor Lawhorn and was put to work washing floors.
Some hours later Duarte came by and in the presence of Lopez told Lawhorn that
Berry did not want Lopez "around the plant any more . That's why he fired me."
Lawhorn promptly discharged Lopez, stating that he did not know Lopez had been
previously discharged.
There is no evidence that Lopez ' employment had been unsatisfactory or criticized
in any manner . Moreover he had been previously terminated on May 15 at a time
when the No . 10 can line was still in operation . Accordingly I conclude on a
preponderance of the evidence that his original termination of May 15 was dis-
criminatorily motivated.
Joe Castaneda was assigned to the cannery department and his duties included
the preparation and pumping of a lye solution from an outside tank to the plant
for use in the canning process . He testified that he signed a union card but did
not attend the union meeting because he arrived too late; it is to be noted that
Respondent 's records do not show him as working after May 8 although Castaneda
claimed that he had been laid off prior to the union meeting but on the same evening
by Foreman Duarte.
Plant Manager Schilling testified that he received a number of reports that
Castaneda was not mixing the lye solution properly, that he personally witnessed
a dangerous boilover of the lye peeler due to Castaneda's negligence and that on two
occasions he observed Castaneda not wearing the required eye shields . Schilling and
Duarte jointly decided to replace Castaneda with another employee whom they
rated more highly and this was done. Although Schilling testified that this was
done at the time the No. 10 can line shut down which would have been May 20,
I find that the evidence does not preponderate in favor of the position of the General
Counsel herein and recommend that this case be dismissed.
Emigean Sanchez and Vincent Sanchez were employees of Respondent until
approximately June 1 but are not mentioned in the testimony except by Vice Pres-
ident Jackson who testified that they were husband and wife , that Vincent Sanchez
was a jigger and sewer on the fresh line and that Sanchez left to work at another
plant. June 1 , it is to be noted, was the date that the fresh line shut down , ostensibly
for economic reasons which are not challenged by the General Counsel. Mary
Smith is not identified for the record except as an employee who worked until
approximately May 19 according to Respondent 's records and there is no other
evidence bearing on her case. In view of the foregoing it is recommended that these
three cases be dismissed for lack of proof.
19 Respondent's records indicate that she was not working on that date.
17 This is the Rosie Perez named in the complaint whose case is discussed hereinafter.
Subsequent to the time material herein, Perez married.
BAKERSFIELD FOODS CO., INC. 1145
This leaves for consideration the cases of five cannery employees who were ter-
minated on or about June 13, 1958, at the end of the cannery run but were not
recalled for the flake department when it commenced operations approximately
July 9 or 10. It is clear that all cannery department employees except a small
nucleus engaged in preparatory work were laid off on June 13. Respondent's payroll
records disclose that some employees hired as replacements in mid-May and there-
after in place of the discriminatorily terminated group in the cannery and the grader
were called back to work in July. However, and this is the crux of the General
Counsel's position, old and valued employees were not. He has drawn attention
to the fact that Respondent hired approximately 94 new employees on various dates
in July as well as one on June 30, but did not recall any of the complainants whose
cases are discussed below.
There is no evidence that the operation of the flake line called for any higher
degree of skill than the cannery line. Both operations require a certain amount
.of dexterity and it would appear that the respective skills are similar.
Alice Hernandez worked on the outside grader under Foreman Barker and had
attended the May 14 union meeting together with her sister Rosie Perez Padilla and
her father Juan Perez. She was allowed to continue work thereafter only after
assuring Berry that she had not attended the meeting. Several weeks after she
had been laid off on June 13, she, together with her sister and father, visited the plant
seeking employment on the flake line. They spoke with Foreman Duarte about
2 days before production got started, early in July, and Duarte told the three that
Respondent needed no help. Hernandez was listed in Floorlady Buono's book as a
regular girl on the outdoor grader.
Her. sister Rosie Perez Padilla had an almost identical history at the plant. The
father of the girls, Juan Perez, did not testify but Respondent's records show that
he was hired during the last canning season on or about May 27 and was termi-
nated along with his daughters on June 13.18 Jessie Luera, also an outside grader,
worked until the June 13 layoff. She uncontrovertedly testified that a poster was
put up on the bulletin board to the effect that the plant would be closed down for
10 days to 2 weeks in order to set up the flake line and that most of the workers
would be called back; however she was not recalled. Angeline Ponce, the last of
the group, did not testify in the case-in-chief. She was on the grader crew along
with the above named group of girls, was laid off with the others, and was not
recalled.
President Berry of Respondent testified concerning a large number of lists offered
in evidence by Respondent which were allegedly utilized in calling people back to
work. These five employees appear prominently in the lists, together with their
respective telephone numbers; in fact, one of the telephone numbers was changed,
apparently to reflect a move. Nevertheless none of this group, despite timely at-
tempts by at least some of them to get work, was called back for the flake line.
To the contrary there were numerous hirings during the month of July and this
group of workers, all regulars with the possible exception of Juan Perez, was not
called back.
In view of the weighty evidence previously set forth concerning Respondent's dis-
criminatory motivation and the admitted difficulty that Respondent had in obtaining
experienced employees, I believe there is sufficient prima facie evidence to support
the position of the General Counsel herein so as to shift the burden to Respondent
to go forward and sift these failures to reemploy from its conduct on a broad scale
previously found to be unlawful; this it has not done. I find therefore that Respond-
ent discriminatorily failed and refused to recall this group of five employees to
work when it reopened the plant with its flake line operation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with its operations set forth in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
18 The two girls did attend the union meeting. They were in their father's automobile
but the record indicates that.the car was registered in the name of a son.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that Respondent has discriminated with respect to the hire
and tenure of employment of the 21 complainants. I shall therefore recommend
that Respondent offer them immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to seniority or other rights and
privileges. See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827. The number of complainants involved herein
is far less than the number of new hires and there appears to be no need for setting
up a preferential hiring list. If, on the other hand, the plant happens to be tem-
porarily shut down due to seasonal or other factors, it is the sense of this remedy
that the complainants shall be offered employment at such time as the plant opens
for operations. I shall further recommend that Respondent make these complainants
whole for any loss of pay suffered by reason of the discrimination against them.
Said loss of pay, based upon earnings which each normally would have earned from
the date of the discrimination to the date of offer of reinstatement, less net earnings,
shall be computed in the manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344.
While Respondent has abandoned the use of the unlawful employment appli-
cation form, a provision in the recommended order is deemed necessary in order
to prevent a return to the old form.
Because of Respondent's demonstration of its willingness if not eagerness to
resort to unlawful methods to counteract an attempt by its employees to achieve
self-organization through a labor organization of their own choosing, the inference
is strongly warranted that the commission of other unfair labor practices may be
anticipated. It will therefore be recommended that Respondent be ordered to cease
and desist from in any manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case I make the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen & Helpers Local No. 87, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a
labor organization within the meaning of Section 2(5) of the Act.
2. Bakersfield Foods Co., Inc., is an employer within the meaning of Section 2(2)
of the Act.
3. By discriminating in regard to the hire and tenure of the 21 complainants,
thereby discouraging membership in a labor organization, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By the foregoing; by utilizing application forms which inquire concerning
union affiliation; by engaging in surveillance of union activities; by interrogation of
employees concerning their union activities; and by threats of reprisal for engaging
in union activities; Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not discriminated with respect to the hire and tenure of
employment of Vincent Sanchez, Emigean Sanchez, Mary Smith, and Joe Castaneda.
[Recommendations omitted from publication.]
Plant City Welding and Tank Company and International
Brotherhood of Boilermakers , Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO. Case No. 12-CA-262.
May 14, 1959
DECISION AND ORDER
Upon a charge duly filed on November 29, 1957, by International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board, herein called the
123 NLRB No. 140.