Foreign Trade Export Packing Co.

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 785 (N.L.R.B. 1975)

FOREIGN TRADE EXPORT PACKING CO.
Foreign Trade Export Packing Co . and Bakery and
Confectionery Workers International Union of
America, AFL-CIO; Local 163. Cases 23-CA-
5338, 23-CA-5365, and 23-RC-4156
November 26, 1975
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On August 7, 1975, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, General Counsel, Charging
Party, and Respondent filed exceptions and support-
ing briefs, and Respondent also filed a brief in
answer to the exceptions of General Counsel and
Charging Party.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
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, as
modified below, and hereby orders that the Respon-
dent, Foreign Trade Export Packing Co., Houston,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
Delete subparagraph 1(d) and substitute therefor
the following:
"(d) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Bakery and Confec-
tionery Workers International Union of America,
AFL-CIO, Local 163, and that said labor organiza-
tion is not the exclusive representative of all the
employees, in the stipulated unit herein involved,
221 NLRB No. 158
785
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
i General Counsel, Charging Party, and Respondent have excepted to
credibility findings of the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge's resolu-
tions with respect to credibility unless a clear preponderance of all the
relevant evidence convinces us that the resolutions are incorrect Standard
Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3,
1951) We have carefully examined the record and find no basis for
reversing or modifying his findings.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Based upon
charges filed by Bakery and Confectionery Workers
International Union of America, AFL-CIO, Local 163,
herein called the Union, in Cases 23-CA-5338 and 23-
CA-5365 on November I 1 and 25, 1974,1 respectively, the
Regional Director for Region 23 issued a consolidated
complaint on December 27. The complaint, as amended at
the hearing, alleged the Respondent terminated eight
employees on November 8 and discharged eight more
employees on November 25, all in violation of Section
8(a)(1) and (3) of the Act. The complaint further alleged
unlawful Section 8(a)(1) conduct by admitted supervisors,
Martin Cortes and Bill Anglin. In its answer, the
Respondent denied the commission of any unfair labor
practices.
On October 18, the Union filed an RC petition (Case 23-
RC-4l56). Pursuant to a Stipulation for Certification
Upon Consent Election entered into by the parties and
approved by the Regional Director on November 4, an
election was held on January 10, 1975, in a unit comprised
of all packaging, shipping and receiving employees,
excluding all office clerical employees, guards, watchmen
and supervisors' as defined in the Act. Of the 26 valid votes
counted, I1 were for and 15 were against the Union.
Twelve ballots were challenged and were sufficient in
number to affect the results of the election. On January 24,
1975, the Regional Director issued, an order directing a
hearing on 1I of the challenged ballots and consolidated
the matter with the instant case. Nine of the eleven
challenged ballots were those cast by alleged discrimina-
tees named in the complaint. Hearing was held before me
on March 4, 5, and 6, 1975, at Houston, Texas.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
all the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a Texas corporation, with its principal
office and place of business in Houston, Texas, is engaged
in the business of packing and forwarding of merchandise.
During the 12-month period preceding the issuance of the
complaint, a representative period, the Respondent pur-
chased materials valued in excess of $50,000 from suppliers
and enterprises in the State of Texas, who, in turn,
I Unless otherwise indicated, all dates hereinafter refer to 1974
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased and received said materials from points outside
the State of Texas. The complaint alleges, the answer
admits, and I find that the Respondent is an employer
engaged' in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that the Union is a labor organization within the
,meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent is a service company with about 90
percent of its business oil field oriented. Its customers drill
far oil all over the world. The Respondent acts as a conduit
from the seller of oil rig equipment and replacement parts
to the purchaser (its customer) for the storage of such
equipment. The equipment is initially stored in Respon-
dent's warehouse. Respondent's business involves the
receipt of the materials for storage and verification and
proper reporting to its customers of the material 'taken in.
The Respondent is subsequently notified by its customers
of the shipping schedule and then it prepares the
warehoused materials for export and delivers the material
to the dock for loading on a specific seagoing vessel. In
addition to the above, the Respondent is called upon to
package and crate dismantled oil rig equipment on a
customer's site for export. The Respondent maintains three
departments in its operations-shipping, receiving, and the
shop department. The shop department includes packing,
boxing, sawmen, and tow motor operators.
On October 11, Dudley Gordon contacted Samuel Pryor,
the Union's secretary-treasurer, seeking to get the Union to
represent the employees.2 A meeting was held on October
15 in a restaurant where an unspecified number of
authorization cards were signed. There are 16 alleged
discriminatees involved herein. Cards dated and signed by
14 of the alleged discriminatees on October 15 were
received in evidence. A 15th card, signed and dated
October 23 by Ofeho Salais, another alleged discnmmatee,
was received through the mail by the Union. ,There is
nothing in the record to show that the remaining alleged
discriminatee, Adan Garcia, signed a card.3 On the
morning of October 18, Pryor, accompanied by another
union representative, Hernandez, visited the Respondent's
facility and met with Clayton Hatz,' Respondent's presi-
dent. Office Manager Cortes was also present. Pryor
requested recognition and stated a majority of employees
had signed up with the Union. Hatz declined to recognize
8 Gordon is named as one of the eight discriminatees alleged to have
been unlawfully discharged on November 25 Contrary to the Respondent's
contention that he is a supervisor , I find, as more fully explicated below, he
was an employee and not a supervisor as defined in the Act
a Pryor testified that other employees also signed cards at the October 15
meeting attended by about 40 employees The other cards were not offered
in evidence , the General Counsel stated he did not wish to reveal the
identity of other employees who signed cards In any event, the record does
disclose the Respondent was aware that most of the employees supported
the Union See, e g., Cantu 's testimony infra, concerning his conversation
with Cortes on October 24
the Union.4 None of the cards were shown to the
Respondent. The Union filed thet representation petition
this same day. The General Counsel, in his complaint
alleged that Cortes, in conversations with employees on
various dates in October, engaged in various forms of
interrogations and threats and solicited employees to
discourage other employees from supporting the Union.
Bill Anglin, is also alleged to have threatened more
stringent work requirements on about November 1 and 6.
As noted above, on November 4, the Union and the
Respondent entered into a consent election agreement to
be held on January 10, 1975. They agreed the eligible
voters would be the employees in the unit who were
employed on the payroll period ending November 2.
Thereafter on November 8, the Respondent laid off nine
employees allegedly for economic reasons-insufficient
work on hand. The Respondent contends these employees
were permanently laid off. One, of those laid off, Walter
Wunebruger, whose brother, Barney, is a foreman, was
reemployed after the election. The General Counsel
contends that the other eight employees terminated on
November 8 were laid off by the Respondent because of
their union support in violation of Section 8(a)(1') and (3)
of the Act.5 Thereafter on November 25, the Respondent
discharged eight more employees.6 The Respondent
contends they were discharged because of their failure to
report for work on Sunday, November 24. The General
Counsel contends this second group of eight employees
was also discharged because of their support for the Union.
B. Independent Acts of Interference, Restraint, and
Coercion
The native tongue of a number of the witnesses for the
General Counsel is Spanish. Several testified through the
use of an interpreter although they understood and spoke a
little English. Still others who testified in English appeared
to experience difficulty in expressing themselves clearly in
English. In determining whether alleged unlawful state-
ments by supervisors were made, I have, been, concerned
that what employees testified to may have been honest but
miscontrued or, improperly expressed `versions of what was
said rather than what actually was said. In resolving
credibility, I have borne in mind the burden of proof is on
the General Counsel in the prosecution of a complaint.
1. The conduct of Martin Cortes
Jose Toledo Morales, employed as a sawman in the shop
department since December 1971, testified through an
interpreter, under subpena as a witness for the General
4 Cortes testified the Union representatives were already in Hatz' office
when he was called in and he heard Hernandez say 35 percent of the
employees had signed cards I have grave reservations that the Union would
admit to having less than a majority and concurrently claim recognition I
credit Pryor
Abraham D Gonzalez , Victor M. Delgado, Ismael Rojas , Donaciano
Espinoza, Henry Johnson, Erasmo Velez, Eulialdo M Toledo, and Adan
Garcia
6 Ernesto Cantu Cano, Dudley S Gordon, Amado Gamboa, Jose Salais,
Ofelio Salais, Pablo Ayar, Juan Grimaldo, and Arthur Brown
FOREIGN TRADE EXPORT PACKING CO. 787
Counsel. He testified concerning three conversations
relating to the Union with Cortes during October.? In mid-
afternoon on October 18, he was called to Cortes' office.
Cortes asked him if he knew anything about the Union,
whether he favored the Union and inquired where the
Union meetings were being held. Toledo expressed lack of
knowledge of any union activities. The second conversa-
tion took place on October 23. Cortes spoke to him about
raises. Toledo's version of what Cortes said is not entirely
clear but a fair interpretation of his testimony as to this
conversation was that Cortes said there wouldn't be any
raises for a time until the Union question was disposed of.
Cortes also told him the employees would not have the
benefits they had in the past and asked Toledo to talk to
the other employees and try to discourage them from
supporting the Union. The third occasion was on October
29 when Toledo and employee Rodrigo Guzman were
called to the office where Cortes spoke to them about the
Union.8 Cortes told them the Union wasn't good for the
employees and the only thing the Union could possibly get
for the employees was a 25- or 50-cent increase but they
would end up with a smaller paycheck because they would
have to pay union dues and social security payments would
be increased. Cortes also said the employees would work
only 40 hours if the Union came in .9 Cortes told them to
discourage other employees from supporting the Union.
Guzman, employed by the Respondent since March 1974
as a forklift operator, corroborated Toledo's account of the
October 29 meeting.'°
Ernesto Cantu Cano, one of the employees discharged
on November 25 and named in the complaint as a
discrimmatee, testified as a witness for the General
Counsel through an interpreter. On October 24, Cortes
asked him if he knew "anything about the Union men."
Cantu replied he did and that almost all of the men except
for two or three had signed union cards. Cortes told him he
had promised raises to employees but now "it wasn't going
to be possible." Cortes said that "the workers that weren't
legal" were going to be laid off.ii Cortes also told him
employees would not be permitted to report late for work
and employees would not be permitted to take 2-3 days off
to visit in Mexico as in the past. Cortes related that even if
the Union won and employees received a raise the
employees would have smaller paychecks because they
would have to pay union dues and social security payments
would be increased.
Alfonso Guerrero Leal testified as a witness for the
General Counsel through an interpreter. Guerrero started
working for the Respondent in May 1974. He left for
Mexico in August and then returned to the Company in
early October. He left for Mexico again in late December.
He returned to work for the Respondent the day before he
testified as a witness. He testified that before he went to
Mexico in August, Cortes had promised him a raise. When
he returned he asked Cortes for a raise and Cortes replied
7 Cortes was one of the few supervisors who was able to converse with
the Spanish speaking employees in their native tongue.
8 Cortes' secretary, Dolores Becerra, was present but was not called as a
witness.
9 The employees were putting in considerable overtime during this
period
10 However, he did not state whether or not Cortes asked them to
there would be no raises because "the Union was
involved." 12 About November 1, Guerrero again asked
Cortes about a raise and Cortes again said raises were not
possible because of the "Union question" and told
Guerrero to tell other employees not to support the Union.
Cortes testified he did talk to employees about the
Union. His reasons were that he didn't believe the Umon
was good for either the employees or the Company. He
singled out Cantu because Cantu's brother was a foreman
at the plant and he, together with Toledo and Guzman,
appeared to be individuals the employees sought out to
talk to. He admitted asking Cantu and Toledo what they
knew of the Union activities. He testified he told Cantu
and Guerrero the Respondent would hold off granting
raises until after the election because the Umon would
accuse the Respondent of trying to buy the employees'
support through raises. He testified that at the time of the
Union's request for recognition some employees were
"scheduled" to get raises. He explained that employees had
been recommended by their supervisors for raises but the
raises were not "finalized" - they were awaiting approval
by Hatz, Respondent's president. Cortes also testified that
while discussing the Union with Guerrero, he was asked by
Guerrero if he would be permitted to visit in Mexico again.
Cortes' reply was - he didn't know. Cortes also told Cantu
that if the Union won the election those employees desiring
to take time off to visit in Mexico would have to seek
permission from the Union steward rather than from the
Respondent. He further testified he told employees that if
the Union got in it would try to eliminate the overtime so
more employees would be hired and it would get more
members. He admitted talking to Cantu about employees
who did not have immigration papers. Cortes' version of
what he said was as follows: "that there was probably some
guys out in the shop who were trying to get their papers
legalized, and that probably we wouldn't be able to help
them." He admitted explaining to the employees that if the
employees did receive a raise through the Union their
paychecks would be smaller because of the increased
deductions. He also admitted asking Toledo, Cantu, and
Guzman to discourage other employees from supporting
the Union.
2. The conduct of Bill Anglin
Anglin is the Respondent's head foreman in overall
charge of the operations. The complaint alleged that on or
about November 1 Anglin told employees that since they
now desired the Union they would not be able to take it
easy on the job anymore. In support of this allegation,
Rodrigo Guzman testified he was sitting around in the
work area with other employees at about 7:05 a.m. when
Anglin walked by.13 The employees had not yet begun
working. Anglin said, "You guys wanted the Union, so let's
go to work." The complaint also alleged that on or about
discourage other employees from supporting the Union.
11 A reference to employees from Mexico who did not have immigration
papers.
12 This conversation with Cortes about a raise took place sometime
between October 18 and November 1
13 Starting time was 7 a.m, Guzman had already punched in.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 6 Anglin told employees that because of the
Union changes would be made and employees wouldn't be
allowed to report late too often. Henry Johnson testified
that a few days before the November 8 layoff, sometime
between 7:30 and 8 a.m. another employee, Jerry Robin-
son and he were on their way to punch in when Anglin
stopped them. Quoting Johnson: "Anglin said, `there were
going to be some changes made now because we weren't
going to be able to come to work late and miss days like we
had been.' But he didn't specify why." Johnson testified he
had been late on other occasions but no supervisor said
anything about it. Robinson was not called as a witness.
Although Anglin was a witness in this proceeding he was
not questioned specifically concerning his remarks to
Guzman or Johnson. His only testimony which remotely
touched upon it was during the direct examination as
follows:
Q. Did you ever have any conversation with
employees about the Union?
A. No, not conversations, no, sir.
Q. Did the- employees-did any employees ever
come to you and talk about the Union with you?
A. No, sir.
Concluded findings with respect to the alleged
independent Section 8(a)(1) violations
I find that Cortes interrogated employees as to their
knowledge of union activities and whether they supported
the Union. He also sought to ascertain from Toledo where
the Union meetings were being held.14 In absence of any
showing of a legitimate purpose or assurance against
reprisal in interrogating the employees and where Cortes
had manifested his opposition to the Union, I find such
conduct violative of Section 8(a)(1) of the Act. I also find
that Cortes threatened employees with elimination of
overtime if the Union was successful in becoming the
bargaining representative of the employees. I was im-
pressed with the sincerity of the witnesses testifying for the
General Counsel and I do not accept Cortes' testimony
that he told the employees it was the Union that would
attempt to eliminate the overtime. It may be that his
explanation while testifying was only an afterthought to
make his testimony less damaging to the Respondent. I
believe, in his attempt to intimidate the witnesses from
supporting the Union, he was attributing the elimination of
overtime to the Respondent if the Union was successful.
Such threat of elimination of overtime violated Section
8(a)(1) of the Act. With respect to those employees who did
not have immigration papers, I find that Cortes told Cantu
that the Respondent would not assist those employees in
processing their papers as it presumably did in the past,
and conveyed the impression this would result in their
termination. Such conduct violated the Act. Additionally, I
find that Cortes unlawfully threatened employees with
withdrawal of benefits previously enjoyed by the employ-
ees. In this connection, I rely upon his statement to Cantu
14 It should be noted that on the very day the Union requested
recognition-October 18-Cortes embarked on his drive to seek informa-
tion about the Union activities of the employees as evidenced by his
discussion with Toledo
that employees would not be permitted to report late, his
statement to Toledo that the Respondent would not grant
benefits to employees as in the past,15 and his statements
that employees would not be as free to take time off to visit
in Mexico.
The General Counsel contended that, the Respondent,
through Cortes, engaged in unlawful conduct by telling
employees it was withholding wage increases because of
the Union presence. The Respondent argues that Cortes
was "merely paraphrasing a well-established Board policy
that granting of unscheduled, unannounced wage increases
during the pendency of an election proceeding violates the
Act." Guerrero testified he had been promised a raise by
Cortes. He was hazy-in his recollection of time frames. At
one point he testified he didn't talk to Cortes until October
30 but later said he had been promised a raise by Cortes
before he left for Mexico.16 Cortes, on the other hand,
testified Guerrero asked him about a raise in August.
Cortes denied promising Guerrero an increase but rather
told Guerrero he would take it up with Guerrero's
supervisor. I find Cortes' version more plausible, particu-
larly because Cortes himself could not, mtiate raises for
plant employees; his authority in this area was limited to
the office employees. Cantu had also testified Cortes told
him it wasn't possible at that time to give any promised
raises. Here too, I credit Cortes' testimony regarding raises.
I find he told employees, in effect, the Respondent would
not grant increases during the pendency of the representa-
tion question. Specifically he did not tell any employees
that promised raises would be withheld. The record
discloses that the Respondent had not promised or
committed itself to granting any wage increases prior to the
commencement of the Union campaign. As Cortes
testified, employees had been recommended for raises by
their supervisors but Respondent's president, Hatz, did not
take any action on the recommendations. Thus, it cannot
be said that the Respondent cancelled any previously
announced wage increases . At best, the Respondent
decided to withhold further consideration of raises recom-
mended by the immediate supervisors of the employees
pending resolution of the representation question. Nor was
anything said that any future raises were dependent upon
the outcome of the election. Under these circumstances,
the allegations concerning withholding of wage increases
are without merit and I shall recommend dismissal of these
allegations.
It is undisputed Cortes explained to employees that even
if the Union was successful in obtaining a 25- or 50-cent
wage increase for the employees they would have a smaller
take-home paycheck because of union dues and additional
amounts would be withheld for social security benefits.
The General Counsel contends such attempts to discourage
employees from supporting the Union constituted unlawful
interference. Obviously not all appeals by, an employer to
discourage employees from supporting a labor organiza-
tion fall within the proscription of the Act. Contrary to the
General Counsel's contention , I find Cortes' statements
15 Cortes did not spell out any specific benefits
16 As stated above, he left for Mexico in August, before the advent of the
Union and returned in early October.
FOREIGN TRADE EXPORTPACKING CO.
here permissible campaign propaganda protected by
Section 8(c) of the Act.
It is undisputed Cortes solicited employees to talk to
other employees and discourage them from supporting the
Union. He selected Toledo, Guzman, and Cantu because
he felt they could influence the other employees. Cortes'
solicitations here of employees was undertaken in the
context of other acts of unlawful interrogation and threats.
Accordingly, I find Cortes' solicitation of employees to
discourage other employees from supporting the Union in
violation of Section 8(a)(1) of the Act.
With respect to the allegations concerning Head Fore-
man Anglin, I credit the undisputed testimony of Guzman
and Johnson. I am mindful that Anglin did not mention
the Union when he told Johnson changes would be made
and employees wouldn't be permitted to come late to work
or miss days as in the past. However, Anglin's statement
was made after the petition had been filed by the Union
and about the time the election was being scheduled. The
consent election agreement was executed on November 4.
Thus, it is clear that Anglin was conveying the impression
that working conditions would be more stringent because
the employees were seeking to have the Union become
their bargaining representative. Accordingly, I find his
statements to Guzman and Johnson violative of Section
8(a)(1) of the Act.
C. The November 8 Terminations
The General Counsel's complaint alleges that on
November 8 the Respondent terminated and thereafter
failed and refused to reinstate the employees named in fn.
5 because of their support for the Union. The Respondent
asserted and adduced evidence that the employees were
permanently laid off for economic reasons.
Dave Moring, assistant to Respondent President Hatz,
testified the Respondent has limited control over the
amount of business it can normally anticipate. As stated
above, the equipment and material purchased by the
customer is normally shipped to the Respondent where it is
warehoused. The Respondent is then notified by, the
customer to prepare specified equipment for delivery to the
dock for loading on a specific vessel. Moring testified that
in early 1974 its customers attempted to expedite and
overorder replacement parts in anticipation of a threatened
longshoremen strike later in the year and a resultant
shutdown of the Port of Houston.17 Moreover, its principal
customer who represented about 45 percent of the
Respondent's business was displeased with the Respon-
dent's performance timewise. To cope with these condi-
tions the 'Respondent hired additional personnel. In
August, Hatz felt the labor costs and employee comple-
ment were too high and directed a reduction in force. Both
Moring and Anglin testified about six to eight employees,
all from the shop department, were terminated. The
employees selected for layoff were considered to be the
least productive. No consideration was given to seniority.
Nothing was said to the employees about recall. None of
11 Ultimately, the strike did not materialize
18 Walter Wunebruger was also laid off on November 8 but was absent
on that day He was separately notified of his separation He was not named
as a discriminatee in the complaint
789
the employees laid off came back looking for work. In the
last week in October, Moring and Anglin met with Hatz
and discussed cutting down the employee complement
because it did not appear there was sufficient work to keep
everyone in the shop department busy. As Anglin testified,
each day he had been detailing eight to nine men to
perform clean-up work while the Respondent hoped for
additional work to come in. In the first week in November,
the decision was made to reduce the shop department by
nine employees. The employees were selected by seniority
for this layoff because, as Anglin testified, he did not want
to be accused of using union partisanship as a basis for
selecting employees for layoff. On November 8, Anglin
notified the eight alleged discriminatees they were being let
go because there was not enough work to keep busy. All
the employees terminated were employed in the shop
department working on building and packing crates.18
Monng and Anglin testified, without contradiction, the
Company policy is not to contact employees for rehire
when openings develop. If a laid off employee applies for
work at a time when work is available, he would be rehired
provided he had performed satisfactorily in the past.
Walter Wunebruger had worked for the Respondent on
several occasions but yet his seniority dated back only to
October 5, 1974, when he was most recently employed
before the layoff. In late January, 1975, after the Board
conducted election, he applied for a job and was rehired as
a foreman. Apart from Wunebruger's return to work, the
only testimony relating to any laid off employee applying
for work was that of Cortes who testified that one of the
employees' laid off on November 8 came looking for work
sometime in December but at a time when the Respondent
was not hiring anyone. He was unable to identify the
individual., Henry Johnson, of the alleged discriminatees
laid off on November 8, testified that when Anglin
announced the layoff to the assembled employees on
November 8, Anglin said it could be 2 weeks or 6 months
before they were called back. Anglin specificially denied
anything was said about recall. In light of the credited
testimony that the Respondent had no recall policy and
because I was favorably impressed with Anglin's demeanor
as he testified, I credit his denial. After the meeting,
Johnson asked 'Anglin if he could stay another 2 weeks but
Anglin refused, explaining it would show favoritism.19
In August, the Respondent had permanently laid off six
to eight employees because of lack of work. That layoff
was effected before any union organizational activity
arose. The November 8 layoff which is in issue here was
effected 3' weeks ' after the Union filed its petition for
representation and only days after the Respondent had
executed the agreement for a Board conducted election.
With respect to, this latest layoff, the Respondent decided
to use different criteria in the selection process. This time
the Respondent resorted to seniority as the basis for layoff
regardless of the productive capacity of individual employ-
ees. The Respondent opted for the seniority method to
avoid any charge of discriminatory selection based on
19 Shipping department Foreman McWilliams also asked Anglin to put
Johnson in the shipping department but Anglin refused, again for the same
reason
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union consideration . Prior to the November 8 layoff, there
were about 27-32 employees in the shop department. Of
this number, the record shows 24 were employed in 1974.20
The nine with the least seniority were selected for layoff.
The General Counsel challenges the Respondent 's asser-
tion of a business decline as a justification for the
reduction in force. He contends the remaining employees
continued to work overtime . But this was in accord with
the Respondent 's policy of providing employees with 50-55
hours of work weekly. The exhibit introduced in evidence
summarizing overtime hours of employees shows a decline
in the number of overtime hours worked by shop
department employees immediately before and after the
layoff.21 To show that Respondent effected the layoff on
November 8 as a pretext to eliminate or to effectively
throttle the Union support rather than for business
considerations, the General Counsel points out that the
Respondent added an employee in September and four in
October for the shop department . In his brief, the General
Counsel also points out the Respondent hired additional
employees for the shop department after the November
layoff. An examination of General Counsel's Exhibit 622
shows that 18 employees were hired during this 3 1/2
month-period for the shop yard department but no date of
hire is shown . I do not believe this evidence supports the
General Counsel 's case to any noticeable degree. For after
the Respondent laid off six to eight employees in August
because of a legitimate reduction in force , it still hired five
employees within the next 2 months for that department.
Keeping in mind the transient nature of the employees
herein involved, I would speculate the employees hired in
the September-October period were hired as replace-
ments for the existing complement after the August layoff.
Similarly, it would logically follow the employees hired
during the 3-1/2 month-period following November 8 were
hired as replacements to the existing complement as it
existed after the November 8 layoffand as replacements for
shop department employees discharged on November 25 to
be discussed below .23 In support of his theory of the
illegality of the November 8 terminations , the General
Counsel stresses that good business practices would dictate
that an employer would recall skilled employees rather
than hire new, employees . He points out that here none of
the alleged discri minatees laid off on November 8 were
recalled yet Respondent hired new employees . But, simply
put, it is not our function to determine whether an
employer exercises sound judgment in his business prac-
tices. ' We are only concerned with any illegality in his
conduct . As stated heretofore , the Respondent 's policy was
not to recall laid off employees . An employee laid off who
applies for reemployment is taken back as a new employee
provided an opening ' exists at the time and he had
performed satisfactorily in the past. This was the policy
before the Union came into the picture . In failing to recall
20 G C Exh 5 This is indicative , as Respondent's witnesses testified, of
the large turnover of employees.
21 GCExh7
22 This exhibit lists all the employees by classification hired between
November 8, 1974, and February 28, 1975 This was furnished in response
to the General Counsel 's subpena.
23 The exhibit also shows four employees hired for the shipping
department during this period Prior to the layoff this department had five
any of the employees laid off in November, the Respon-
dent followed its practice be it sound or not in the eyes of
the beholder . The employees laid off on November 8 were
not given any expectation of recall nor was there any
intention by the Respondent to recall them when openings
occurred . Thus I find and conclude the employees named
in the complaint who were laid off on November 8 were
permanently laid off. I am satisfied and further find that
the General Counsel has not sustained the burden of
proving the Respondent was motivated by unlawful
considerations in terminating the eight employees nor that
it was motivated by hostility toward the Union activities of
its employees by failing to recall them . Accordingly, this
allegation of the complaint will be dismissed.
D. The November 25 Discharges
When one of the Respondent 's customers desires to ship
a complete oil rig to an overseas destination , it employs a
fabricating concern to put it together and to make sure that
everything is run properly . The Respondent is then called
upon to process it for export . This involves the dismantling
of the rig , bundling of the rig, spraying it with a rust
preventative , boxing electric motors and generally covering
up anything that will rust or get damaged in transit. After
the rig components are processed , they are trucked to the
Port of Houston to be loaded on a ship . The Respondent
has had only one job which required the Respondent's
crew to process the rig at the dock itself . That job is
referred to herein as the Manchester Terminal job and it
was this operation which led to the discharge of the eight
employees involved herein.24
Anglin was informed by Monng on either November 16
or 17 of the Manchester Terminal job . He was told they
had about 8 days to complete the operation . On November
18, the equipment for processing the rig was moved in.
Work began on the Manchester Terminal on Tuesday,
November 19. The employee crew initially was composed
of Cantu, Jose and Ofelio Salais, Pablo Ayar, Gnmaldo,
and Brown together with Supervisors Anglin, Dugan
Bloomfield , and Barney Wunebruger . The employees
would first punch in at the Respondent's shop and then
would be transported to the terminal to work on the oil rig.
At the end of each day , they would return by truck to the
Respondent's shop where they would punch out. On
Saturday , November 23, Anglin called the plant for
additional personnel and Gordon and Gamboa were sent.
They reported about 1 : 30 p.m. and worked the remainder
of the day at the oil rig 25 The eight employees on the crew
failed to report for work at the terminal on Sunday,
November 24. On the morning of November 25, as they
reported for work Anglin told them they were discharged
for their failure to report for work on Sunday. The
Respondent contends these employees were discharged
because they violated company policy - a policy which
employees but in March 1975 it only had four This obviously supports
Anglin's testimony that employees "come and go "
24 See fn . 6, supra
25 Gordon said he reported to the rig with two other employees. The
record shows only Gamboa accompanied him, Cantu testified employee
Guadalupe Saucedo worked on Saturday; the record however, shows
Saucedo first worked on the oil rig on Monday , November 25
FOREIGN TRADE EXPORT PACKING CO.
requires employees working on an oil rig job to work
straight through, regardless of the day of the week. An
employee who misses work without having notified the
supervisor with a valid excuse is discharged.26 The General
Counsel contends the reason given for the discharges was
pretextual to mask the real reason - to stifle the
employees ' organizational efforts.
Anglin testified the processing of the oil rig away from
premises is always of an urgent nature and unlike the work
at the Respondent's premises, each day is another workday
- Sunday included. He testified that on the Manchester
job he constantly kept °telling the employees to hurry., He
said the urgency of the operations must have been obvious
to the employees because "as soon as we would get through
with a piece, a truck would come pick it up and carry it
down to the ship, and it wasn't but approximately a 1000
yards from where we were working." During the course of
the afternoon on Saturday, Anglin told Gordon they had
to hurry and he had been pushing the men hard.27 At or
about 5:30 p.m. Anglin told Gordon to take the'men back
to the shop and, "make sure you tell all of them to be here
at 7 o'clock in the morning." Gordon asked if they really
had to work the next day and Anglin replied they did -
the ship was already receiving cargo and the work was
behind schedule. As the crew was leaving, Anglin ap-
proached the truck and said to the employees, in Spanish
as well as in English, "7 o'clock in the morning." 28 None of
the crew reported for work Sunday and on Monday they
were all discharged. None had called in to be excused.
Gordon testified that at the end of the workday on
Saturday, Anglin told him to take the men back to the shop
and "tell the rest of the fellows 7 o'clock in the morning."
Gordon then told the men Anglin had said "7 o'clock in
the morning." 29
It is undisputed Sunday work at the Respondent's shop
is not mandatory although employees often times do work
Sundays. The parting words of a supervisor on any given
day, including a Saturday customarily was, "7 o'clock in
the morning." But yet if an employee didn't come in on a
Sunday nothing was said . Anglin acknowledged that
Sunday work at the shop was not mandatory but work on
oil rigs off the premises ran on a tight schedule and every
day was a workday until the job was completed. Anglin,
who had been with the Respondent for 13 years and is the
overall foreman of the operations, stated that over, the
years he had discharged 30 to 40 employees for being
absent ' without an excuse -on an oil rig site or on a job
outside the Company's premises. Prior to the Manchester
Terminal job, the most recent complete oil rig job off the
premises was in November 1973. On that project he had a
crew of eight and discharged two employees who did not
report for Sunday work. Since the Manchester Terminal
job, he, discharged one employee for not reporting on a rig
job away from the premises on a Sunday.30
Cantu testified he had understood that Sunday was not a
mandatory workday. However he acknowledged he never
26 The testimony of Anglin.
27 Gordon had been employed since about 1967 or 1968. Although I do
not consider him to have been a supervisor , he was an experienced
employee who could be characterized as a Ieadman
28 The employees normally started at 7 a.m.
29 Cantu was the only other crew member who testified . He stated he
791
had worked away from the Respondent's premises prior to
the Manchester Terminal job. Gordon had been working
for the Respondent for a number of years and had worked
on several oil rig jobs away from the Respondent's
premises31 He testified he had always considered it to be
optional to work on Sunday. He said he had worked
without a day off from November 11 through November
23 and explained, "They say come to work every day and I
just got tired. I got tired and I didn't show up for work the
24th "
I was not impressed with Gordon's testimony. He did
not appear to testify convincingly but seemed to grope and
calculate before responding to questions, particularly on
cross-examination. When asked on cross-examination
whether there was any urgency in working on the rigs, the
following exchange took place:
A. Well, they say it be urgent.
Q. Who is they?
A. The supervisors.
Q. O.K. Were you ever told that on any other rig
besides this one at Manchester Terminal, that the work
was urgent?
A. No.
Q. This was the first time?
JUDGE NESS: Did anyone say this°one was urgent?
THE WITNESS: Didn't anyone tell,me on this one that
it was urgent.
Q. (By Mr. Martin) Well, you said they said and I
asked you who that was.
A. The supervisors.
JUDGE NESS: I don't think he was referring to the
-November 23 incident.
MR. MARTIN: Well, I was asking him which time did
that occur.
THE WITNESS: Did what?
Q. (By Mr. Martin) That you were told that the
work was urgent.
A. Well, it had been two or three years. They didn't
tell me directly. They just said--,the work was urgent,
that they need to do it.
Gordon testified as follows on cross-examination concern-
ing employees' failure to work on Sundays:
Q. You testified earlier that you had known that
other employees failed to report to work on Sunday
and nothing was done about it, right?
A. Right.
Q. Did that ever happen to your knowledge with
the dismantling of an oil rig?
A. Yes.
Q. When?
A. I don't know when.
Q. Which employees were involved?
asked Gordon what Anglin had said and Gordon replied, ."seven in the
morning."
30 An employee named Burton hired since November 8 and shown on
G.C. Exh. 6 as "Bruton."
31 Corroborated by Anglin.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, I was one for instance. Some of the guys
that were there, when they said come to work on
Sunday they didn't show up. Some, they came if they
wanted to and if they didn't, they didn't think nothing
of it. There wasn't nothing,said.
Q. When was that? When was that?
A. That's all the time. That was all the time until
we tried to get a Union and then all of a sudden
everything was mandatory.
Q. Oh, I see O.K.
JUDGE NESS: When you say it was done all the
time -
THE WITNESS: I mean all the time I was there.
JUDGE NESS: Did it ever happen before when you
were working on an oil rig.
THE WITNESS: Yes.
JUDGE NESS: Do you recall whether in dismantling
an oil rig, packaging the parts of an oil rig, that you all
were asked to come in on Sunday?
THE WITNESS: I don't recall.
JUDGE NESS: You don't recall the day of the week?
THE WITNESS: I don't recall the days.
Q. (By Mr. Martin) Have you ever known of any
other time, Mr. Gordon, when an entire work crew
failed to report for work when instructed on Sunday to
your knowledge?
A. To my, knowledge on - It was the 17th or the
10th of November that J.C. said 7 o'clock in the
morning and it wasn 't but three of us there.
Q. Was that to the shop?
A. That was the shop.
Gordon was the only one of the crew that had previously
worked on an oil rig job 32 It may well be that the other
employees did not realize it was mandatory for them to
report for work at the oil rig on Sunday. For all they were
told was the usual , "7 o'clock in the morning." However, I
believe Anglin made it clear to Gordon he wanted the men
to work on Sunday. In absence of any credible testimony
or evidence to the contrary and because I was impressed
with Anglin's forthrightness as he testified, I credit his
testimony that he had discharged employees in the past
and since for failing to report for work on an oil rig job.
The Respondent had been cooperative in furnishing
subpenaed data. No request was made for documentary
evidence to challenge Anglin's testimony in this regard.
With respect to the Manchester job, Gordon himself
testified this was the first time to his knowledge that an
entire crew failed to report. One may consider the
treatment of the other crew members harsh when we
recognize that they may not have known the' mandatory
nature of the Sunday work here.,However that may be, the
issue before me is solely whether or not the real reason was
because of the employee support for the Union and was an
attempt on the part of the Respondent to thwart the
interest of the employees in seeking a bargaining represen-
tative . Recognizing the General Counsel's burden of proof,
32 Anglin said the last such job was in November 1973. Gordon was the
only employee of the eight who had been employed at the time. Cantu
began his employment in December 1973. The other six had all begun their
employment in the first part of 1974.
33 1 do not credit Cortes' testimony that he asked Gordon to be a
such burden has not been sustained. The Respondent in
the past had discharged employees for not reporting for
work on Sunday at oil rig jobs and followed that practice
when it discharged the eight employees for failing to report
for work. Accordingly, this allegation of the complaint will
be dismissed.
E. - The Alleged Supervisory Status' of Gordon
In light of the findings above, it becomes unnecessary to
decide the status of Gordon. However, because this issue
may arise in the appellate process, if indeed this matter
may go further, I shall consider this question.-Gordon had
been working for the Respondent since 1967 or 1968 and
for the past 4 years he has worked principally as a packer.
He was the senior packer. The Respondent's contention
that Gordon was a supervisor is based principally on a
conversation between Cortes and Gordon in early 1974,
followed by An increase in pay to Gordon.
In February 1974, Cortes asked, Gordon to help out
Supervisors Adams and John Cantu since there was so
much work to be done 33 Gordon responded he would help
in anyway he could but wanted more money. Cantu
assured him he would get an increase. In the pay period
ending March 2 Gordon's hourly rate was increased from
$3.05 to $3.25.34 Cortes told,him he "would be helping Mr.
Cantu pulling material , fitting boxes, helping the men
there. " Gordon testified when Adams or Cantu was too
busy he would check the shipping orders in the shop office,
would tell the forklift operator what materials, to bring up
for packing and then he would check to see that the proper
materials were boxed.35 He had no authority to hire or fire
or to effectively recommend either. Cortes testified he
observed Gordon "tell some of the other employees to -
how to pack some material and told different individuals to
go and cut out some timbers for blocking and what-have-
you on the boxes." But Cortes admitted he observed
Gordon perform these same functions' even in 1973. Anglin
testified Gordon would occasionally be called upon to take
a crew with him to work at another company's facility but
readily admitted this was a function Gordon had been
performing in past years. Based upon the entire record, it
appears that any added responsibility given to Gordon in
early 1974 was not cloaked with any of the supervisory
indicia under the Act. Rather, he functioned in the role of
a senior and more experienced employee in assisting the
other employees in his department, particularly at times
when the immediate supervisors were busy with other
matters. Accordingly, I find that at the time of his
discharge, Gordon was, not a supervisor within the
meaning of the Act.
IV. CASE 23-nC=4156 - THE CHALLENGED BALLOTS
Twelve ballots were challenged at the Board conducted
election held on January 10, 1975. They were sufficient in
number to affect the results of the election. Of the 20 valid
"foreman." Even so, a change in title alone does not transform an employee
into a supervisor.
34 Gordon erroneously stated he did not receive an increase after this
conversation
35 Also corroborated by Anglin.
FOREIGN TRADE EXPORT PACKING CO.
votes counted 11 were for and 15 were against the Union.
Nine of twelve challenged ballots were those cast by
alleged discnmmatees named in the complaint. Three of
this group of nine were among those employees laid off on
November 8.36 Since I have found they were permanently
laid off for nondiscriminatory reasons, I shall recommend
the challenges to their ballots be sustained. The remaining
six were included in the November 25 discharges.37 As I
have found they were not unlawfully discharged, I shall
recommend the challenges to their ballots be sustained.
Remaining for resolution are the ballots of Juventino
Quintanilla and Walter Wunebruger. Quintanilla's name
did not appear on the eligibility list and his ballot was
challenged by the Board agent conducting the election. At
the hearing all the parties agreed Quintanilla was an
eligible voter and his ballot should be counted. Counsel for
the General Counsel stated that with the agreement of the
parties as to the disposition of the ballot, the Regional
Director had no objection to the counting of the ballot.
Accordingly, I shall recommend that the challenge be
overruled. Wunebruger's ballot was challenged by the
Board agent because his name had been marked off the list
of eligible voters. The Company contends he was an
ineligible voter because he was permanently laid off on
November 8. The record" shows he was rehired as a
foreman in the latter part of January - after the election.
The Union takes no position with regard to his eligibility.
As I have found the November 8 terminations constituted
a permanent layoff and Wunebruger was included in that
group, it will be recommended the challenge to his ballot
be sustained. The ballot of Jerry Robinson was also
challenged by the Board agent. The issue concerning his
eligibility was not noticed for hearing but remained with
the Regional Director for disposition. Thus, having
recommended that the ballots of 10 of the 12 challenged
ballots be sustained, the remaining 2 challenged ballots,
those of Qumtanilla and Robinson, could not affect the
results of the election.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By unlawfully interrogating employees concerning
union activities , by threatening employees that overtime
would be eliminated, working conditions would be more
stringent and that employees would be discharged if they
selected the Union, and by soliciting employees to dissuade
other employees from supporting the Union, Respondent
has interfered with, restrained, and coerced employees in
the exercise of their rights guaranteed by Section 7 of the
Act.
36 Henry Johnson, Ismael Rojas, and Euhaldo M. Toledo
37 Pablo Ayar, Ernesto Cantu, Amando Gamboa, Dudley Gordon, Juan
Gramaldo, and Ofeho Salais.
38 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
793
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Except for the foregoing, Respondent has committed
no unfair labor practices.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found' that 10 of the 12 challenged ballots be
sustained and it appearing that the remaining 2 challenged
ballots are not sufficient in number to affect the results of
the election, I shall recommend that a certification of the
results be issued.
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:
ORDER38
Respondent, Foreign Trade Export Packing Co., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union activities.
(b) Threatening elimination of overtime, more stringent
working conditions, and the discharges of employees if
they selected a labor organization as the bargaining
representative of the employees.
(c) Soliciting employees to dissuade other employees
from supporting a labor organization.
(d) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at Respondent's facilities at Houston, Texas, in
both the English and Spanish language, copies of the notice
attached hereto as "Appendix." 39 Copies of said notice, on
forms provided by the Regional Director for Region 23,
after being duly signed by an authorized representative of
Respondent shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Decision, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative of the Act be
dismissed.
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
39 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
794 DECISIONS OF NATION AI] LABOR RELATIONS BOARD
IT IS RECOMMENDED that the challenges of the following
named individuals be sustained ' Pablo Ayar, Ernesto
Cantu, Amado Gamboa, Dudley Gordon , Juan Grimaldo,
Henry Johnson , Ismael Rojas , Ofelio Salais, Eulialdo M.
Toledo , and Walter Wunebruger ; that the challenge to the
ballot of Juventino Quintanilla be overruled and that a
certification of results issue.
APPENDIX
NOTICE To EMPLOYEES
POSTED ,BY ORDER OF THE
NATIONAL , LABOR , RELATIONS BOARD
An Agency of the United States Government
After a hearing m , which all sides had an opportunity to
present evidence and state their positions , the National
Labor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice.
The Act gives employees the following rights:
To.engage in self-organization
To form, join, or assist any union
To bargain collectively through , representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other ' mutual
aid or protection
To refrain from the exercise of any such
activities.
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to these
rights. More specifically:
WE WILL NOT interrogate employees concerning their
union activities or the union activities of other
employees.
WE WILL NOT threaten to eliminate overtime or make
working conditions more difficult because the employ-
ees want a labor organization to represent them as their
collective-bargaining representative.
WE WILL NOT threaten employees with loss of jobs if
employees select a union to represent them. ,
WE WILL NOT ask employees to discourage other
employees from supporting a ,union.
FOREIGN TRADE 'EXPORT
PACKING CO.