El Sol Mexican Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1972

200 N.L.R.B. 804 (N.L.R.B. 1972)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
El Sol Mexican Foods, Inc , and Natalia Cervantes
d/b/a La Paloma Foods Co and Meat & Provision
Drivers Local 626, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America Case 21-CA-10768
December 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 10, 1972, Administrative Law Judge'
Jerrold H Shapiro issued the attached Decision in
this proceeding Thereafter, Respondent La Paloma
Foods Co filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and a
brief in support of the cross-exceptions and in answer
to La Paloma's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Natalia Cer-
vantes d/b/a La Paloma Foods Co, Los Angeles,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in said Order
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of Section 8(a)(1) not specifically found by the
Administrative Law Judge
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed in its entirety, insofar as it
alleges violations of the Act by the Respondent, El
Sol Mexican Foods, Inc
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 The General Counsel contends that the Administrative Law Judge
should have ordered Respondent La Paloma affirmatively to bargain in
good faith with the Union However the complaint alleges that Since on or
about June 1971 Respondents have honored the collective bargaining
agreement and have recognized the Union as the collective-bargaining
representative of their employees in the unit Further the only
violation of Section 8(a)(5) alleged in the complaint relates to Respondents
conduct in encouraging and assisting employees to sign the decertification
petition In view of the complaint allegations we find that the Admimstra
tive Law Judge s remedy recommendation, omitting an affirmative
bargaining order was proper
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERROLD H SHAPIRO, Trial Examiner The hearing in
this case held on June 29 and 30, 1972, is based upon
charges filed by the Union named above on March 14,
1972, and a complaint amended at the hearing issued on
April 28, 1972, on behalf of the General Counsel of the
National Labor Relations Board (the Board) by the Acting
Regional Director of the Board, Region 21 The complaint
alleges that El Sol Mexican Foods, Inc, and Natalia
Cervantes d b a La Paloma Foods Co, herein separately
referred to as Respondent El Sol and Respondent La
Paloma and together as Respondents, have engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act)
Respondents filed an answer denying the commission of
the alleged unfair labor practices
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs submitted to me, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
El Sol Mexican Foods, Inc, is a corporation with its
place of business situated in Los Angeles, California, where
it distributes Mexican food
Natalia Cervantes is an individual doing business under
the name of La Paloma Foods Co, with a place of business
situated in Los Angeles, California, where she manufac-
tures Mexican food products
Respondent El Sol and Respondent La Paloma each
annually purchase and receive goods valued in excess of
$50,000 shipped from points outside California either
directly to Respondents or directly to firms located in
California which in turn ship these goods directly to
Respondents Respondent El Sol and Respondent La
Paloma separately are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Meat & Provision Drivers Local 626, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act
III THE ISSUES
On February 11,1 in Case 21-RD-1062, an employee of
Respondent La Paloma filed a petition for decertification
asking the Board to hold an election to determine whether
or not the Union was still the bargaining representative of
the production and maintenance employees employed by
Respondent La Paloma The petition, among other things,
alleged it was supported by at least 30 percent of the
i Unless otherwise specified all dates hereafter refer to the year 1972
200 NLRB No 119
EL SOL MEXICAN FOODS 805
production and maintenance employees who had asserted
that the Union was no longer their representative The
General Counsel contends that Respondents violated
Section 8(a)(1) and (5) of the Act by soliciting and
directing the production and maintenance employees to
prepare and sign the decertification petition, and by
promising them improved benefits of employment and
threatening them with loss of employment for the purpose
of persuading them to sign the petition Additionally, the
General Counsel contends that Respondents violated
Section 8(a)(1) of the Act by interrogating an employee
about the decertification petition he filed concerning the
Union's representation of the truckdrivers, by interrogating
an employee about the affidavit he had given to an agent
of the Board, and by stating to employees that the
company intended to form its own labor organization
General Counsel contends that Respondents constitute
one employer for purposes of the Act and that each is
responsible for the conduct of the other
IV THE UNFAIR LABOR PRACTICES
A The Operations of Respondents and Their
Business Relationship with Each Other
Respondent El Sol's predecessor was El Sol Spanish
Foods, a partnership of Tony Reyes (Reyes) and his
mother, Natalia Cervantes (Cervantes) On April 3, 1969,
the partnership ceased to exist and in its place Respondent
El Sol was incorporated Reyes was president, his mother,
stepfather, and son occupied the other corporate offices
Respondent El Sol manufactured tortillas and distributed
tortillas and other Mexican foods On October 12, 1971, for
$1 Respondent El Sol sold and conveyed all of its
manufacturing assets to Respondent La Paloma, a sole
proprietorship owned by Cervantes At the same time,
Cervantes severed her connections with Respondent El Sol,
and she was dropped as an officer of the corporation
From that date Respondent La Paloma has manufactured
tortillas and Respondent El Sol which retained its delivery
equipment does no manufacturing It distributes Mexican
foods throughout Southern California Reyes credibly
testified that the reason Respondent El Sol ceased
manufacturing tortillas was it had become physically
impossible for him to manage both production and
distribution
Respondents share the same facilities, the property taxes
being paid by Cervantes Respondents' employees punch
the same timeclock Respondent El Sol's employees
(truckdrivers) spend very little time in the plant, most of
their working time is spent away from the plant making
deliveries Thus, it takes them only 45 minutes each day to
load their trucks On occasion they may return to the plant
for another load At the end of the day they park their
trucks in the back of the plan:. and go into the office to turn
in the day's receipts
Respondents employ the same bookkeeper but maintain
separate business records including personnel records, file
separate tax returns , have separate business licenses,
separate telephone numbers , and pay their employees
using separate payroll checks signed for El Sol by Reyes
and for La Paloma by Cervantes 2 Their top management
officials maintain separate offices with Cervantes using as
her office a room adjacent to Reyes' office
Respondent La Paloma manufactures tortillas which it
sells to the public at retail and to distributors , one of whom
is Respondent El Sol The undemed testimony of Cer-
vantes while not free from ambiguity is to the effect that a
substantial amount of La Paloma's tortillas are sold to
customers other than El Sol The evidence does not
demonstrate that La Paloma sells all or even the majority
of its tortillas to El Soli El Sol distributes throughout
Southern California a wide variety of Mexican foods, of
which 50 percent is purchased by El Sol from suppliers
other than La Paloma
La Paloma employs about 16 production employees who
are employed on two shifts They are under immediate
supervision of two shift foremen who report to Cervantes
who manages the operations of the company El Sol's five
truckdrivers are supervised by Reyes with some assistance
from a friend, Bob Saravia Reyes manages the operations
of El Sol There is no evidence that Cervantes exercises any
direction or control over the operations of El Sol or its
employees The evidence concerning Reyes' relationship
with La Paloma is as follows He testified that the nature
of his work kept him away from the plant-he was in the
plant only infrequently-that he did not manage or direct
La Paloma's employees except on a few occasions when he
happened to observe an employee in need of work he
instructed the employee to do something Reyes ' testimony
is corroborated by La Paloma employee Orozco who
testified that after the production end of the business was
taken over by La Paloma he considered Cervantes as his
boss, and further testified Reyes spent most of his time
away from the premises Flores, an employee of La
Paloma , hired in January 1972, testified he was hired by
Cervantes Based on the foregoing , it is my opinion that a
preponderance of the evidence does not demonstrate that
Reyes controls either the hiring, firing , or the management
of Respondent La Paloma I have considered the general-
ized testimony of Manuela Hurtado, a La Paloma
employee , that she received orders from Reyes and have
rejected it in view of her signed sworn written statement
given to the Board wherein she stated , "Tony Reyes was
never my foreman or supervisor , and I never received work
orders from him" Also considered was the testimony of
Alfredo Hurtado that Cervantes was in the plant daily and
that during a course of a week Hurtado would receive
instructions from Cervantes and Reyes "once or twice "
This amount of instruction given to Hurtado by Reyes was
not sufficient to establish that he exercised control over the
management of La Paloma and is consistent with Reyes'
testimony that on occasion if he observed an employee
needed work he would instruct the employee to do
Y It is not disputed that since October 12 1971, the La Paloma employees were La Paloma checks signed by Cervantes
have been paid by check signed by Cervantes rather than Reyes However 3 La Paloma s tortillas are still being packaged in bags which state that
La Paloma employee Hurtado testified that once he was paid by personal they are made by El Sol This is because La Paloma has not used up its
check signed by Reyes Reyes credibly denied this and it was stipulated original inventory of bags purchased when El Sol was in fact doing the
that all payroll checks made out to Hurtado on and after October 12 1971, manufacturing
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something Finally, I have considered the testimony of
employee Ohvarez that he was recalled to work in
February at La Paloma by Reyes or his wife Reyes
testified that the only time either he or his wife phoned
Olivarez was when a driver for El Sol did not show up for
work and Olivarez was then called to substitute for the
absent driver That Ohvarez was confusing the call he
received in February with a call by Reyes' wife to
substitute as a driver at El Sol is demonstrated by his
answer to the following question
Q Have you ever received phone calls from Mrs
Reyes concerning La Paloma, El Sol?
A Yes She calls me sometimes, like I said, she
might have called me that time [referring to the
February phone call] to come in because sometimes
she called me for a route, that someone doesn't show
up, and [Reyes ] is not always there to call
Regarding the question of who controls the labor
relations policy of Respondents, it is undisputed that Reyes
controls El Sol's policy in this area The record does not
establish that Reyes also exercises control over the labor
relations policy of Respondent La Paloma Insufficient to
establish Reyes' control over labor relations or even
management is the fact that Cervantes on occasion asks his
advice about the price of supplies Likewise, control by
Reyes over labor relations policy is not demonstrated by
the fact that he executed the collective-bargaining contract
with the Union which La Paloma later agreed to honor
There is no evidence that it was Reyes on behalf of La
Paloma who agreed to recognize the Union or to honor the
terms of the contract Also, insufficient to establish control
by Reyes over La Paloma's labor relations policy is the fact
that his mother consulted with him and apparently relied
upon his advice in connection with the Union's demands in
January and February that La Paloma deduct from the
paychecks of certain of its employees back dues and
initiation fees At most this constitutes an isolated instance
of Reyes' involvement in La Paloma's labor matters
Based upon the foregoing I find that the record does not
establish by a preponderance of the evidence that El Sol
and La Paloma constitute a single employer within the
meaning of the Act It seems to me that as opposed to the
relatively insubstantial indicia of a common relationship
between Respondents, there are much more significant
factors which establish their separate identity There is no
common ownership or financial control The companies
are in different businesses They do substantial amounts of
business with customers other than with each other There
is a de minimis amount of employee interchange, or
transfer Each company has its own supervision who
supervise only their own employees Payrolls, telephones,
offices, and business records are separate There is no
common management nor common or centralized control
over labor relations policy for the two companies
Accordingly, I find, contrary to the position of the General
Counsel, that Respondent La Paloma and Respondent El
Sol are not a single employer within the meaning of the
Act Lassus Fuel Co, Inc, 196 NLRB No 109, Internation-
al Union of Operating Engineers Local 428, 169 NLRB 184
B The Interference, Restraint, and Coercion
Respondent El Sol on March 3, 1971, entered into a
collective-bargaining agreement with the Union effective
from March 8, 1971, until November 30, 1971 The
contract covered El Sol's production employees and
truckdnvers On October 12, 1971, El Sol sold and
conveyed the manufacturing portion of the business to La
Paloma After the sale, El Sol continued to recognize the
Union as the representative of its remaining employees, the
truckdnvers, and continued to honor its contract with the
Union covering these employees Likewise, La Paloma
recognized the Union as the representative of the remain-
ing unit employees and honored the contract with the
Union covering these employees
By virtue of the terms of the union contract, Respon-
dents had agreed that upon written authorization from
employees they would deduct from the employees' pay and
remit to the Union, Union dues and initiation fees With
the expiration of the contract on November 30, 1971,
Respondents ceased to check off and remit to the Union
the dues and initiation fees of employees who had not
revoked their Union checkoff authorizations On Wednes-
day, February 3, Respondents received a letter from the
Union which listed the names of eight employees-six
from La Paloma and two from El Sol-stated that certain
of these employees had not paid their initiation fees and all
owed dues for December 1971 through February Upon
receipt of this letter Cervantes, the owner of La Paloma,
according to the testimony of Reyes, consulted him about
the letter because as put by Reyes, "she was not familiar
with the Union proceedings or what the document meant "
One of the employees named in the Union's letter was
Juan Orozco who had signed a union dues checkoff
authorization in 1971 Regarding Orozco and five of the
other employees, the Union asked the company to remit to
the Union for each employee the sum of $71 50 covering
dues for December 1971 through February and an
initiation fee Orozco was employed by La Paloma on the
night shift which began at about 11 p m On Tuesday,
February 8, during the day he was summoned by telephone
to the plant by Reyes who stated it was important he talk
to him Reyes spoke to Orozco in the office in the presence
of Cervantes and Maria Harrington 4 Reyes told Orozco
that he was no longer the boss at La Paloma, that
Cervantes did not want any problems with the Union, that
since the expiration of the Union's contract employees
were 3 months behind in dues payments and owed the $50
initiation fee, that Cervantes was going to pay this money
to the Union, and that it would be withheld by the
company from their paychecks because the Union would
not accept payment any other way Reyes stated that the
employees could prepare a petition so that all the workers
would sign it to remove them from the control of the
Union, explaining to Orozco that he had in mind all the
tortilla manufacturers forming a union composed of people
who knew more than the Union did about the type of work
done inside a tortilla factory The Union, said Reyes, was
good for truckers but not for the work that was done inside
4 Harrington the companion of Cervantes is a relative of Reyes and
Cervantes and helps out Cervantes at the plant doing as Reyes puts it
whatever is needed
EL SOL MEXICAN FOODS 807
the plant Reyes also promised to Orozco that the new
union would result in more benefits for the workers Not
only did Reyes suggest the employees could prepare a
petition to remove the Union but at this meeting Orozco
was given a yellow piece of paper by either Reyes or
Harrington which contained language for such a petition
This paper was taken home by Orozco who prepared a
petition by copying the language verbatim on another
piece of paper The petition was addressed to the NLRB
and dated February 9 (hereafter called the decertification
petition or petition) and reads as follows
Representing the majority of the employees of La
Paloma Foods, previously (El Sol Mexican Foods) and
since the contract between the company and the
Teamsters Union Local No 626 terminated on the 30th
of November 1971
We respectfully request the NLRB permit us to have
elections to remove the control of the Teamsters Local
626 over us
Sincerely yours,
(signatures)
(dates)
Orozco at that time did not sign the decertification petition
but took it back to the plant, enclosed it with the yellow
sample copy in an envelope bearing Reyes name and left
the envelope on the clip outside Reyes' office door where
messages are usually left This was the morning of
Wednesday, February 9, the company's regular payday
Later that day Reyes telephoned Orozco at home and
asked him why he had not signed the petition Reyes
replied that he would sign the petition that evening upon
his arrival at work
The foregoing is based upon the testimony of Orozco In
crediting Orozco I have considered the fact that he
exhibited a confusion with respect to dates In particular I
find Reyes solicited him over the phone to sign the petition
on February 9 which was Respondent's payday and not
February 10 However, this inability to place dates is not
uncommon in entirely honest and reliable witnesses
Orozco gave me the impression that he was conscientiously
trying to give an accurate account of the events that
transpired connected with the decertification petition, and
in particular of his conversation of February 8 with Reyes
Reyes on the other hand when testifying about the conduct
described above imputed to him by Orozco and what took
place at the meeting of February 8 did not give me the
impression that he was telling the truth
Regarding the meeting of February 8 Reyes denied that
either Harrington or Cervantes were present Harrington, a
relative of Reyes and Cervantes and the companion of
Cervantes who helped out Cervantes in the plant, was not
called by Respondent to corroborate Reyes Cervantes, at
the hearing, when asked if she ever had a "conference with
Orozco, Harrington and Reyes" answered "no [Harring-
ton] would come out to the car I never saw Orozco I gave
the checks to [Harrington] to hand out The only time I
saw him is when I went there " I was not impressed by
Cervantes' demeanor and for this reason and for the
additional reasons set out later in this Decision I do not
regard her as a credible witness in matters relating to the
decertification petition
Regarding what was said at the meeting of February 8,
Reyes testified
Q Mr Orozco testified that on February 8 he had
a conversation with you Was this a conversation with
respect to initiation fees and dues9
A Yes He did not want to pay the initiation or the
dues
Q Tell us about that conversation you had on
February 89
A Well, the thing was this that my mother told
him-they had to be deducted otherwise she would
have to pay them and he just flatly refused He said, no,
if you deduct them I won't show up for work So Mrs
Cervantes asked me to call him and just tell him-or
talk to him-that they had to be deducted, there was
no way out of it He was quite unhappy about it
Orozco credibly testified he never said he would not work
if the company deducted union dues from his paycheck,
and more specifically that he did not make such a
statement to Reyes Cervantes, although called by Respon-
dent as a witness, did not corroborate Reyes' assertion that
the basis for his meeting with Orozco on February 8 was
that Cervantes had asked Reyes to talk to Orozco because
he was threatening to quit work if the company deducted
his union dues To the contrary, Cervantes' testimony is to
the effect that she was not even aware that the company
was making dues payments to the Union in 1972, that she
never discussed with employees the size of their paychecks,
and in connection with the checking off of union dues,
ended her testimony with the remark, "I don't know
anything about the Union since I took over La Paloma, the
bookkeeper has prepared everything I don't know any-
thing "
To recapitulate, I am convinced and find that in
response to Cervantes' request for advice in dealing with
the Union's request that Respondent La Paloma checkoff
and remit dues and initiation fees owed by La Paloma's
employees that Reyes on February 8 acting on behalf of
and as an agent of La Paloma in the presence of Cervantes
and Harrington informed Orozco that the employees of La
Paloma could escape from the Union by preparing and
signing a petition to remove the Union, suggested to
Orozco that the employees join a new union which the
tortilla manufacturers would form and which would result
in more benefits for the employees I further find that
Reyes at this time either directly or indirectly through
Harrington transmitted to Orozco sample language for
Orozco to use to prepare a petition to remove the Union
The first employee of La Paloma to sign the decertifica-
tion petition was Francisco Flores who signed it on
February 9 in the room adjacent to Reyes' office which is
used by Cervantes as her office February 9 was a regular
payday At the end of the workday at 5 p in Flores went to
this room to get his paycheck Present were Cervantes,
Maria Harrington, and several other workers there to get
paid Harrington gave Flores his paycheck and at the same
time Cervantes told Flores and the other employees that
"she did not want any union problems and if [the
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees ] did not accept it [the employees ] should sign
the paper," referring to the decertification petition which
was on a table in the room Flores signed Shortly after, at
about 5 30 p in , employees Alfredo Hurtado and Manuela
Hurtado, husband and wife , went into this room to get
their paychecks Cervantes told the employees to sign the
decertification petition "to retire the Umon" and stated she
did not want to have the Union there and that whoever
wanted to work with a union should leave and go where
there was a union Mr and Mrs Hurtado at that time
signed the petition
The foregoing is based on the credible testimony of
employees Flores and Alfredo Hurtado who impressed me
as reliable and forthright witnesses making a conscientious
effort to tell the truth 5 The demeanor of Cervantes did not
impress me In addition , when asked , "did you ever ask
any employee to sign [decertification petition ]," Cervantes
answered, "no, I don't remember " And, when asked "was
there any discussion with any employee with respect to the
decertification petition," answered "no, we never spoke
much about that, business was all ," hardly unequivocal
denials of the conduct attributed to her Nor, was her
testimony that she was physically unable to go into the
plant during the month of February convincing 6 In
substance , she testified that due to a broken leg she was
confined to the wheelchair, that her husband drove her to
the plant on paydays, that she would stay in the
automobile and distribute the checks to employees from
the automobile, and that she could not leave the automo-
bile Neither Maria Harrington nor the husband of
Cervantes was called by Respondent to corroborate this
story Not explained is why if it was possible to get the
incapacitated Cervantes from her residence into the
automobile it was impossible for her to get from the
automobile into the plant Moreover, Cervantes' own
testimony indicates that by February she was no longer
confined to a wheelchair She testified she broke her foot in
March 1971 and was confined to a wheelchair "for about
six months " That in fact Cervantes in February was no
longer confined to a wheelchair and was inside the plant
supervising the operation is established by the credible
testimony of employee Olivarez that during the month of
February Cervantes was in the plant usually every day
To recapitulate, I am convinced and find that on
February 9 Cervantes told the employees she did not want
a union in the plant, solicited them to sign the decertifica-
tion petition, and invited employees to quit their employ-
ment with the Company if they did not sign the petition or
reject the Union
General Counsel contends that Respondent violated the
Act based on Reyes' interrogation of one employee about a
decertification petition filed with the Board and of another
employee about an affidavit given a Board agent
Regarding the interrogation about the affidavit, Orozco
on Sunday, April 9, gave an affidavit to a Board agent who
was investigating the unfair labor practice charges filed in
the instant case Orozco testified that at 3 o'clock on
Monday morning, April 10, that his telephone rang, his
wife answered the phone, turned the call over to him, at
which time Reyes who was on the phone engaged Orozco
in the following conversation "Mr Reyes asked me why I
had given Mr Lombardo [ the Board agent] that statement
And I replied that I had told him what had happened
Then, he spoke to me very angrily with bad words and he
hung up " I was not impressed by this portion of Orozco's
testimony The entire sequence of events does not ring true
Also, when asked at the hearing if he had discussed his
affidavit with anyone from management at the plant
Orozco first answered "yes, Manuel Rodriquez" and then
answered he had no such discussion It was only in
response to a leading question that he finally testified that
Reyes discussed his affidavit with him Finally, Orozco's
reply to Reyes' alleged question makes little or no sense-it
is in no way responsive to the question Reyes testified he
did not call Orozco at 3 a in on Monday, April 10, and
denied he knew Orozco had given a statement to a Board
agent, Lombardo Orozco's wife was not called to
corroborate his assertion that there was a phone call or that
Reyes called at the highly unusual hour of 3 a in Under all
of these circumstances , I find that on this particular matter
the testimony of Orozco is not reliable
Regarding the interrogation of an employee about the
decertification petition filed with the Board, employee
Padilla, a truckdnver employed by El Sol, filed with the
Board on February 9 a petition in Case 21-RD-1061
asking the Board to hold an election to determine whether
or not the Union was still the bargaining representative of
the truckdrivers employed by Respondent El Sol There is
no evidence that Reyes or anyone from the management
had anything to do with the filing of this petition To the
contrary, Padilla credibly testified that the idea to file the
petition was the drivers' because they were dissatisfied with
the Union Thereafter, Respondent El Sol received a copy
of the petition from the Board which on its face indicated
Padilla had filed it and also received a copy of a notice
from the Board to post informing the employees that such
a petition had been filed At this time Reyes somewhere in
the plant made the following remark to Padilla , "I hear you
filed a petition " Padilla answered "yes " That was the
extent of the conversation Based on the foregoing I find
that the evidence is not sufficient to establish that in the
circumstances of this case that Reyes' remark to Padilla
tended to interfere with, restrain , or coerce employees in
the exercise of their Section 7 rights
C Ultimate Findings Regarding Interference,
Restraint, and Coercion
"Section 8(a)(1) of the Act makes it unlawful for an
employer to instigate and promote a decertification
proceeding or induce employees to sign any other form of
union-repudiating document , particularly where the solici-
tation is strenghtened by express or implied threats of
reprisal or promises of economic benefit " N L R B v
Birmingham Publishing Co, 262 F 2d 2, 7 (C A 5) Guided
5 Manuela Hurtado did not impress me as a trustworthy witness I have through February Cervantes couldn t be inside the plant' because of her
rejected her testimony wherever it is not corroborated by her husband leg injury As in the case of his testimony relating to the decertification
Alfredo Hurtado petition I had the impression that Reyes was not being candid when he gave
6 Likewise unimpressive was Reyes testimony that from November 1971 this testimony
EL SOL MEXICAN FOODS 809
by this well-settled principle I find that by Reyes' conduct
of soliciting employee Orozco to prepare a petition to
decertify the Union, by assisting him in drafting the
petition, by soliciting him to sign the petition, and by
promising him unproved benefits of employment for the
purpose of encouraging him to reject the Union and
prepare and sign the petition,7 Respondent La Paloma
engaged in the type of conduct which interferes with,
restrains, and coerces employees in the exercise of their
rights guaranteed by Section 7 of the Act and violated
Section 8(a)(1) of the Act Likewise, Respondent La
Paloma violated Section 8(a)(1) of the Act by Cervantes'
conduct of soliciting employees to sign the decertification
petition and by mvitmg the employees to quit their
employment with the company if they did not sign the
petition or reject the Union 8
The allegations in the complaint alleging that Respon-
dents violated the Act by Reyes' interrogation of one
employee about the affidavit he submitted to the Board
and of another employee about his filing of a petition to
decertify the Union are not supported by a preponderance
of the evidence Accordingly, I shall recommend that these
portions of the complaint be dismissed
I shall further recommend that the complaint insofar as
it alleges that Respondent El Sol violated the Act be
dismissed in its entirety As described in detail earlier in
this Decision El Sol and La Paloma are not one employer
for purposes of the Act Regarding the conduct of Reyes,
El Sol's president, in soliciting Orozco to prepare and sign
the decertification petition, I am convinced and find that
the evidence establishes that he was not acting within the
scope of his employment as an official of Respondent El
Sol, but solely as an agent for Cervantes-Respondent La
Paloma (See Dearborn Oil and Gas Corporation, 125 NLRB
645) Reyes engaged in this conduct in the presence of
Cervantes and pursuant to Cervantes' request that Reyes
advise her in the matter of the Union's demand that La
Paloma check off and remit dues and initiation fees Reyes
made it plain that he was in fact talking to Cervantes, for
he started the conversation by declaring he was no longer
the boss at La Paloma and that it was Cervantes who did
not want any problems with the Union Also, the unlawful
conduct engaged in by Reyes was directed solely against
the employees of La Paloma There is no evidence that
Reyes' conduct was calculated to chill the unionism of the
truckdrivers employed by El Sol Quite the contrary, Reyes
in speaking to Orozco stated that while the Union was not
a good one for the production employees, it was good for
the truckdrivers This was hardly conduct calculated to
chill unionism among the truckdrivers Nor is there
evidence that his unlawful conduct had the natural effect
of chilling unionism among the employees of El Sol
Indeed truckdnver Padilla as described in detail earlier in
the Decision credibly testified that Reyes had nothing to
do with the filing of the decertification petition by the
r Reyes suggestion to Orozco that the employees join a new union wlucn
would result in their receiving more benefits constituted a not too subtle
promise of improved benefits of employment if they rejected the Union and
supported a petition to decertify the Union
8 Stoutco Inc 180 NLRB 178 (invitation by employer to employee to
qu.t employment)
9 This is the description of the bargaining unit contained in the Union s
truckdrivers, it was the drivers' idea because they were
dissatisfied with the Union I find, based on the foregoing,
that there is no warrant for taxing Respondent El Sol with
responsibility for Reyes' violations of the Act I shall,
therefore, recommend that the complaint be dismissed as
to El Sol
D The Refusal To Bargain
If Respondent La Paloma had an obligation to recognize
the Union as the representative of its employees, then its
unlawful conduct which was part of a plan designed to
oust the Union as the bargaining representative and was
inconsistent with La Paloma's obligation to recognize and
bargain with the Union was not only violative of Section
8(a)(1) of the Act but violated Section 8(a)(5) as well
Suburban Homes Corp,173 NLRB 497, and Wahoo Packing
Company, 161 NLRB 174
Upon commencing operations on October 12, 1971,
Respondent La Paloma recognized the Union as the
representative of all its employees covered by the Union's
contract with its predecessor El Sol Also, La Paloma at
that time agreed to honor and in fact honored the portion
of the Union's contract with El Sol insofar as it covered the
employees employed by La Paloma These employees-the
La Paloma employees covered by the contract-performed
functions distinct from those performed by the truckdriv-
ers employed by El Sol , there was separate supervision of
the two groups of employees , they had little if any contact
with each other , and there is no evidence of any significant
transfer or interchange of employees between the groups
In these circumstances including La Paloma's recognition
of the Union in such a unit , I find that all of the production
and maintenance employees and deli-workers employed by
Respondent La Paloma, excluding all office and clerical
employees , professional , laboratory, technical , and re-
search employees , guards and supervisors as defined in
Section 2( 11) of the Act , constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act 9 I further find that since on or
about October 12, 1971, the Union has been and is now the
exclusive representative of all employees in the aforesaid
bargaining unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act Respondent
La Paloma did not rebut the presumption of majority
status created by its conduct of voluntarily recognizing the
Union as the representative of these employees and
agreeing to honor, and in fact honoring, the terms of the
unexpired contract the Union had covering the employees
with the predecessor employer, El Sol 10 Barrington Plaza
and Tragniew Inc, 185 NLRB No 132, N L R B v Frick
Company, 4,23 F 2d 1327 (CA 3), N LRB v Broad
Street Hospital and Medical Center 452 F 2d 302 (C A 3)
There is no evidence that La Paloma has ever informed the
Union that it doubted its majority status or has refused to
contract with Respondent El Sol minus the truckdrivers
10 Whereas here Respondent La Paloma has voluntarily recognized the
Union and honored the unexpired contract it is not relevant whether in fact
Respondent was a successor employer obligated by law to recognize the
Union By its conduct Respondent waived any right now to question its
status as a successor employer Cf Wek Drilling Co 174 NLRB 607 608
and King Radio Corp v N L R B 398 F 2d 14 (C A 10)
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to recognize and deal with the Union Nor is
there any evidence or contention that the Union has not
actively continued to seek to represent the unit employees
In these circumstances La Paloma's evidence of employee
turnover presented at the hearing is not sufficient to rebut
the presumption of the Union's majority status (See
N L R B v John S Swift Company, Inc, 302 F 2d 342,
345-346 (C A 7) and N L R B v Little Rock Downtowner,
Inc, 414 F 2d 1084, 1091 (C A 8)
To sum up, I find that Respondent La Paloma was
obligated to recognize the Union during February and by
engaging in its unlawful conduct calculated to oust the
Union as the representative of its employees La Paloma
violated Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
1 El Sol Mexican Foods, Inc, and Natalia Cervantes
d/b/a La Paloma Foods Co, each is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
2 Meat & Provision Drivers Local 626, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act
3 All production and maintenance employees and deli-
workers employed by Respondent La Paloma, excluding
all office and clerical employees, professional, laboratory,
technical, and research employees, guards and supervisors,
as defined in Section 2(11) of the Act, constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act
4 At all times material the above-named labor organi-
zation has been the exclusive representative of all the
employees in the aforesaid appropriate bargaining unit for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act
5 By soliciting employees to prepare and sign a
petition to decertify the above-named Union, by promising
them benefits to induce them to reject the Union and sign
the decertification petition, and by inviting them to quit
their employment if they did not reject the Union and sign
the decertification petition, Respondent La Paloma has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
7 Respondent La Paloma has not otherwise violated
the Act
8 Respondent El Sol has not violated the Act
THE REMEDY
Having found that Respondent La Paloma engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 11
ORDER
Respondent, Natalia Cervantes d/b/a La Paloma Foods
Co, Los Angeles, California, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Promising employees benefits and inviting or suggest-
ing employees to seek employment elsewhere for the
purpose of inducing employees to repudiate the Union and
decertify the Union as their exclusive bargaining represent-
ative
(b) Assisting employees to repudiate or decertify the
Union as their exclusive bargaining representative in order
to avoid its obligation to recognize and bargain with the
Union
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Post at its place of business in Los Angeles,
California, copies of the attached notice marked "Appen-
dix " 12 Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Said notices to be
posted in Spanish as well as in English Reasonable steps
shall be taken by Respondent La Paloma to insure that
said notices are not altered, defaced, or covered by any
other material
(b) Notify the Regional Director for Region 21 in
writing, within 20 days from receipt of this Decision, what
steps Respondent La Paloma has taken to comply
herewith 13
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent El
Sol violated the Act and that Respondent La Paloma
violated the Act otherwise than as found herein
11 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order and all objections thereto shall be
deemed waived for all purposes
12 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 21 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith
EL SOL MEXICAN FOODS
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that La Paloma Foods Co has violated the law
and has ordered us to post this notice
WE WILL NOT promise you better terms and
conditions of employment or invite and suggest that
you seek work elsewhere for the purpose of inducing
you to repudiate or decertify Meat & Provision Drivers
Local 626, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America and
decertify this Union as your bargaining representative
WE WILL NOT assist you to repudiate the above-
named Union or to decertify this Union in order to
avoid our obligation to recognize and bargain with this
Union
811
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of your
rights guaranteed under the National Labor Relations
Act
Dated By
NATALIA CERVANTES D/B/A
LA PALOMA FOODS Co
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Eastern Columbia Building, 849 South Broadway, Los
Angeles, California 90014, Telephone 213-688-5229