IBEC Packing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1971

194 N.L.R.B. 417 (N.L.R.B. 1971)

IBEC PACKING CO., INC. 417
IBEC Packing Company, Inc. and Confederacion
Laborista de Puerto Rico . Case 24-CA-2971
December 2, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On August 24, 1971, Trial Examiner Arthur M.
Goldberg issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
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 Trial Examiner and hereby orders that
Respondent, IBEC Packing Company, Inc., Maya-
guez, Puerto Rico, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
r In adopting the Trial Examiner's finding that the dischargee, Carmen
Rodriguez, was not a supervisor, we do not rely on the stipulation in the
agreement for consent election that leadgirls be included in the unit. The
record supports the Trial Examiner's finding that Rodriguez did not
exercise any of the indicia of supervisory status set forth in Section 2(11) of
the Act.
supervisor and therefore not protected by the Act and that
the discharge was effectuated for good and sufficient
reasons connected with her employment. Additionally, on
the basis of a lack of information, belief, and knowledge,
the answer denied that the Umon is a labor organization
within the meaning of the Act.
At the opening of the hearing, over Respondent's
objections, General Counsel was permitted to amend te
complaint in the following respects. First, paragraph IV 'of
the complaint, naming alleged supervisory personnel, was
amended to add the names of Emma Padilla as forelady
and Hiram Diaz as supervisor of the packing and chilling
room. Second, a new paragraph IV-A was added alleging
that Hiram Diaz, on various dates in July 1970, told
employees that if the Umon won the election the plant
would be closed. Third, a new paragraph VI-B was added
alleging that on July 31, 1970, Forelady Emma Padilla
asked an employee if she was going to vote in the election to
be conducted that day and told the employee that if she
voted for the Respondent she had nothing to fear.
Respondent's answer was amended to include a general
denial of these allegations and to assert the further defense
that Diaz is a supervisor "in the same way and to the same
extent that Mrs. Carmen Rodriguez was a supervisor."
Finally, the Respondent asserted that if the alleged
statements were made they were protected under the
freedom of speech provision of the Act.
All parties participated in the hearing in Mayaguez,
Puerto Rico, on May 5 and 6, 1971, and were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, and to present oral argument.
Oral argument was waived by all parties and a brief was
filed by the Respondent only.
Based upon the entire record in the case, my reading of
the Respondent's brief, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Based upon a
charge filed on January 12, 1971, by Confederacion
Laborista De Puerto Rico (herein called the Union or the
Charging Party) the complaint herein issued on March 17,
1971, alleging that IBEC Packing Company, Inc. (herein
called the Company or the Respondent), violated Section
8(a)(3) of the National Labor Relations Act, as amended
(herein called the Act). The Respondent's alleged unlawful
conduct consisted of the discharge of Carmen I. Rodriguez
on January 7, 1971, because of her membership in and
activities on behalf of the Union. The Company's answer
admitted the discharge but denied all material allegations
of the complaint. The answer set up as affirmative defenses
assertions that Rodriguez was at all times material herein a
IBEC Packing Company, Inc., is a corporation of the
Commonwealth of Puerto Rico engaged in the processing
and canning of tuna fish at its plant located at Mayaguez,
Puerto Rico. During the year 1970 the Company purchased
and had shipped directly to its Mayaguez, Puerto Rico,
plant tuna fish' and other materials necessary for the
conduct of its business valued in excess of $50,000. During
the same period the Company processed and canned tuna
fish valued in excess of $50,000 which was shipped to points
located outside of the Commonwealth of Puerto Rico.
The complaint alleged, the answer admitted, and I find
that the Company is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and meets the
Board's standards for the assertion of its jurisdiction.
194 NLRB No. 65
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
Confederacion Labonsta De Puerto Rico admits employ-
ees to membership and maintains collective-bargaining
relations with a number of employers. The Union complies
with the filing requirements of the Labor-Management
Reporting and Disclosure Act of 1959. Pursuant to a
petition for election filed by the Union the Company, the
Union and the Seafarers International Union entered into
an agreement for consent election on May 26, 1970,1 under
the terms of which the Union participated in a representa-
tion election on July 31 seeking to represent the employees
of the Company for the purposes of collective bargaining. I
find that the Union is, and was at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The Company's Operations
The Company employs approximately 400 persons in its
Mayaguez plant. Approximately 300 of the employees are
production workers assigned to six departments. Only the
organization and operations of the packing room, where
between 150 and 160 persons including acknowledged
supervisors, leadgirls and leadmen are employed, are of
significance in this proceeding.
In the packing room the precooked fish is brought from
the chilling room2 to tables where employees, working with
their hands and knives, clean the fish preparatory to the
actual packing. There are a total of three Imes in the
packing room. Carmen Rodriguez, the alleged discrimina-
tee, was employed as a leadgirl assigned to line 1 in the
packing room. On line 1 three cleaners are assigned to each
table and there are a total of 20 to 21 tables in operation at
all times depending upon the daily attendance. When the
fish arrives at the table on line 1 the first employee, called
the "cleaner," removes the skin, opens and removes the
bones from the fish, and passes it on to the second girl. The
second employee at the table, called "pet food," removes
the blood and meat in which the blood is present and any
bones which remain. The third employee polishes the loin
of the fish with her hand. As this employee polishes the loin
and removes any remaining bones she also removes small
pieces of fish which fall off in the polishing operation.
These small pieces of fish are called the "grated." The
grated appears not only at the polishing stage but in the
operation of removing the pet food as well. These small
pieces of the tuna are too small to be packed in the loin and
are canned separately for use in sandwiches.
After polishing, the loin is placed on a conveyor belt
where it is scrutinized by inspectors who report to and are
supervised directly by the forelady and assistant forelady.
As the grated accumulates on the table it is put into a
loose pile. Carmen Rodriguez, at the time of her discharge,
was assigned to the task of going to each of 10 tables in line
I Unless otherwise noted all dates herein were in 1970.
2 The chilling room is part of the packing room
3 This description of the packing room operations is based on plant
superintendent Seda's testimony
4 While there is evidence that certain of the other leadgirls exercise
1 to inspect the grated. If she found that it was clean and fit
for human consumption, without bones or blood, she would
then pat the grated into a firm pile and move on to the next
table. Rodriguez was followed by a man with a tray who
would remove the piles of grated which she had inspected
and passed.3
B. The Discharge of Carmen Rodriguez
1. Rodnguez's asserted supervisory status
The packing room line of supervision, as testified to by
Jaime Seda, the plant superintendent, is head by Rafael
Vazquez, the production coordinator who is in charge of
the entire packing room, including the chilling room, with
responsibility for the cleaning of the fish. Sixto Nieto is
Vazquez' assistant. Emma Padilla is the forelady of the
packing room and Ines Lebron, with the title of leadgirl, is
assistant forelady under Emma Padilla. There does not
appear to be any contention that the foregoing named
persons are not supervisors within the meaning of the Act.
In addition to the production coordinator, assistant
production coordinator, and forelady, there are seven
women employed in the packing room who bear the title
"leadgirl" and one male employee, Hiram Diaz, who is the
"leadman" in the chilling room. Included among the seven
leadgirls, as noted above , is Ines Lebron, who was
designated in Seda's testimony as assistant forelady.
Carmen Rodriguez, the alleged discriminatee, is also
included among the seven leadgirls. Respondent contends
that as a leadgirl Rodriguez was a supervisor within the
meaning of the Act and therefore not protected by the
provisions of Section 8(a)(3).4
On May 26 the parties entered into an agreement for
consent election following filing of the Union's petition for
election.5 Miguel J. Pla, personnel manager, signed for the
Company. That consent-election agreement contains the
following under the heading "The Appropriate Collective
Bargaining Unit:"
Included: All hourly paid production and maintenance
employees employed by the Employer at its factory in
Mayaguez, P.R. including probationary employees,
chauffeurs, janitors, messengers , timekeepers, record
keepers, leadmen and leadgirls.
Excluded: All office clerical employees, sporadic
employees, guards and supervisors as defined in the
Act.
In the instant proceeding Pla testified that together with
his attorney he attended the meeting at which the consent
election agreement was negotiated, that he raised no
objection to inclusion of the leadgirls as ordinary
employees, and that when he signed the consent election
agreement he was aware he was affixing his name to a
document which stated that leadgirls were not supervisors
as defined in the Act. Finally Pla was asked:
Q. In what way did the duties of the leadgirls
change after May 26, 1970?
supervisory authority and are not employees within the meaning of the
Act, I do not deem it necessary to resolve their status for the purposes of
this Decision.
5 Case 24-RC-4105.
IBEC PACKING CO., INC. 419
A. In no way.
While the stipulation of the parties contained in the
consent-election agreement is not dispositive of the issue of
Rodriguez' putative supervisory status, it does have
"persuasive relevance." 6
It has been held recently by the Board that as to
stipulations of the parties in representation cases deference
should be afforded to the intent of the parties where such
intent is not inconsistent with any statutory provision or
established Board policy.? Certainly, the stipulation of the
Respondent on May 26 represented its intent to demon-
strate that the leadgirls were not supervisors. As to the
situation as of that date its stipulation should be binding
upon the Respondent. Unlike the situation in Birmingham
Fabricating Co., 140 NLRB 640, the stipulation in this case
as to the supervisory status of the contested employee does
have probative value, because in the instant proceeding
there is the testimony of Respondent's personnel manager
that the duties of the leadgirls have changed "in no way"
since the stipulation was entered into on May 26.8
Accordingly, based upon Respondent's May 26 stipulation
that the leadgirls were employees and not supervisors,
coupled with Pla's testimony that their duties have not
changed since that date, I would find that Rodriguez was
not a supervisor within the meaning of the Act .9
In any event, the record testimony fails to establish that
Rodriguez exercises any of the indicia of supervisory status
set forth in Section 2(11) of the Act.10 Thus, the evidence in
this case establishes that Rodriguez did not have authority
to hire or fire employees, she could not recommend
increases or decreases in their pay, nor could she
recommend the hiring or firing of employees. Rodriguez
did not attend meetings of supervisors which, Lillian Rivera
a witness called by the Respondent testified, were attended
by line supervisors including Lillian Rivera, Emma Padilla,
the forelady, and production coordinator Vazquez."
Rodriguez did not have the responsibility or authority to
punch the time and production cards of the employees at
the tables. She could not transfer employees to fill a
vacancy but could only ask the forelady to move an
employee to fill the gap. Rodriguez did not direct the work
of other employees. Rather than establishing that Rodri-
guez was a supervisor, the evidence indicates that she was
6 Amalgamated Clothing Workers of America, AFL-CIO v N L R B.
[Sagamore Shirt Co 1, 365 F.2d 898 (C.A D C )
7 The Tribune Company, 190 NLRB No 65.
8 In Birmingham Fabricating Co., supra, p 642, fn 2, the Board noted
that the stipulation as to supervisory status in that case "is not evidence of
their status during the times material here which long predated that
stipulation." In the instant proceeding Pla's testimony establishes that the
status of the leadgirls was unchanged from the time that the Respondent
stipulated that they were employees and not supervisors within the
meaning of the Act
9 As with the findings of the Regional Director in a representation
proceeding, the stipulation of the parties should be accorded "persuasive
relevance," . "aiding the Examiner and the Board in reaching just
decisions, subject however to power of reconsideration .. in the light of
any additional evidence that the Examiner finds material and helpful to a
proper resolution of the issue." Amalgamated Clothing Workers of America
v. N.LR B [Sagamore Shirt Co.], supra, p 905. Cf. The Tribune Company,
supra
10 Section 2(11) of the Act provides- "The term `supervisor' means any
individual having authority, in the interest of the employer, to hire,
transfer, suspend, layoff, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust their
an inspector assigned to scrutinizing the grated and pet
food which had been cut out of the fish by the cleaners at
the table. Thus, Rivera testified as follows:
Q. What position did she (Rodriguez) occupy then?
A. Leadgirl also.
Q. What were her duties during 1970 as leadgirl?
A. To inspect the grated as well as the pet food.
Rodriguez's duties were best summarized in her own
words. When asked if she directed the work of employees,
Rodriguez answered, "no, what I did was check the fish, not
the persons."
In sum, based upon the record testimony, I find that
Rodriguez was an employee within the meaning of the
Act.12
2. Rodriguez employment record
Carmen Rodriguez was hired by Respondent in 1962 as a
fish cleaner. After some 2 years on that job she was
promoted to the position of inspector and had been a
leadgirl since March 1969. On August 4 Rodriguez was
transferred from her prior job of checking the scrap on 20
tables of line 1 to inspecting the grated and pet food on 10
tables. Plant Superintendent Seda testified that her moves
from fish cleaner to inspector and then to leadgirl
constituted promotions.
Respondent maintains personnel files on each of its
employees. Seda testified that he had examined Rodriguez'
personnel folder and that her employment history revealed
that other than a mimeographed form notice in 1964 given
to her because of poor production there were no warning
notices or memoranda in her file dated prior to June 17,
1970.13
3. Rodriguez' union activity
The Union's campaign to organize the Company's
employees began sometime in April. Rodriguez signed a
card for the Union on April 8 at the request of Mrs. Iglesias,
a union organizer who at one time had been a company
forelady. Thereafter, Rodriguez solicited authorization
cards for the Union, visited with workers outside the plant,
and turned the signed cards over to Iglesias. In addition,
grievances, or to effectively recommend such action, if in connection with
the foregoing the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment."
ii Rivera testified that in 1970 these meetings were attended by the
production coordinator, the forelady, Glona Ramirez who was in charge of
line 2, Rossaura Martinez in charge of line 3, Rivera who had
responsibility for line I, and Ines Lebron who is in charge of the inspectors.
Rivera testified that Rodriguez did not attend such meetings "because she
was not a line supervisor."
i2 In connection with Respondent's claim that Rodriguez was a
supervisor I note that in the course of the organizing campaign she was
called to a meeting with -management personnel at which time she was
accused of carrying on union activities on the job during working hours.
However, Respondent, which showed its awareness of the limitations the
law imposes on protected activities by seeking to interdict her asserted
union activity during working hours, did not raise the question of
Rodriguez' right to engage in activities on behalf of the Union because of
any putative supervisory status.
13 Personnel Manager Pla testified that as far as he knew the Company
had no trouble with Rodriguez in all the years she worked prior to the
election.
420 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
Rodriguez, "during April, May, June, July and after the
election up until August" 14 distributed union leaflets at the
one plant gate affording ingress and egress for the
employees at quitting time in the afternoon. Seda testified
that he knew Rodriguez was active in the Union.15
Sometime in May, during the organizational campaign,
Rodriguez was directed by Forelady Emma Padilla to go to
the personnel office where she met with Personnel Manager
Pla, Seda, and Production Coordinator Vazquez. In the
course of this meeting Pla accused Rodriguez of "making
propaganda inside the company during working hours."
Rodriguez denied the accusation and asked that she be
afforded the opportunity to confront the persons who had
accused her of carrying on union activities in the plant
during working hours. Rodriguez told the management
personnel present that she could have spoken to people in
the plant but it did not have to be about the Union.
Rodriguez testified that Pla advised her that if she
continued her activities for the Union inside the plant they
would take her to a place where the law prohibits engaging
in such activity. Seda testified that he had told Rodriguez
that he had seen her engaging in such activity. When
Rodriguez said that she had her ideals and was working for
the Union, Seda claimed to have advised Rodriguez that
she could carry on activities for the Union but not during
working hours in the production area.
Sometime in May two leaflets were distributed in the
plant expressing views opposed to unionization. The first
such handbill, signed by Hiram Diaz, leadman in the
chilling room, contains the following:
As to Mrs. Carmen Rodriguez, I'll say that she has been
called to all the meetings, she is still part of our
Company, we appreciate her and respect her ideals,
even though they may be erroneous.
The second leaflet signed "several fellow workers" is
essentially an attack on Mrs. Iglesias. As to Rodriguez, this
handbill contains the following language:
Concerning Mrs. Carmen Rodriguez, when a meeting is
held in the office when something is going to be said
about the union, she has been ignored because what is
-going to be discussed are personal problems and, for
that reason, she has been excluded because if what is
going to be said in the office is about the union she
would not be interested, she is only interested in THE
REPORT she might give to the AWAKENING.
4. The events leading to Carmen Rodriguez'
discharge
As noted, from the time she was hired in 1962 until June
17, including a period of approximately 16 months as a
leadgirl, Rodriguez received only one warning, that for low
production. Rodriguez joined the Union almost immediate-
ly after the organizing campaign began and was openly
active on its behalf. On June 17 a memorandum from
Forelady Emma Padilla to Plant Superintendent Seda was
placed in Rodriguez' personnel' file advising Seda "that for
more than 3 months, leadgirl Carmen J. Rodriguez has not
talked to any of her fellow workers." The memorandum
went on to say that the other leadgirls did not speak to
Rodriguez either and that Padilla did not know the reasons
for this lack of conversation between them but that Padilla
had noticed that the situation led to a lack of communica-
tion, cordiality, and companionship. Padilla concluded
with the statement "for this reason I find this leadgirl
ineffective." Seda noted on this memorandum that he
agreed with •Padilla's appraisal of Rodriguez' attitude and
that while he did not know why Rodriguez assumed this
attitude it was not "the best toward her fellow workers."
The Union was defeated in the representation election on
July 31. The next day that the plant worked was August 4.
When Rodriguez reported to work she was surprised to see
the other leadgirls wearing a new uniform while she was still
wearing the old attire. Rodriguez had not been informed
about the change. After work Production Coordinator
Vazquez asked whether it was true that Rodriguez would
wear the safe uniform as the other leadgirls. Rodriguez
asked Plant Superintendent Seda why she could not wear
the same uniform. According to Rodriguez, "he answered
that if I put it on I would have to face the consequences."
Seda did not explain what he meant by this statement and
directed Rodriguez to go to Forelady Padilla for authoriza-
tion to wear the new uniform. Padilla told Rodriguez that
she could not wear the new uniform without authorization
following a meeting with Seda and Vazquez. Rodriguez
waited for a decision as whether she could change her
uniform but when no such action was forthcoming she
determined to go to the Board about the matter.
On September 8, Rodriguez requested permission from
Personnel Manager Pla to be absent from work the
following day so that she could go to the Board's Regional
Office. Pla directed Rodriguez to bring him a certificate
from the Regional Office that she had been there. The same
day, September 8, Pla put a memo in Rodriguez' personnel
filed addressed to Forelady Padilla stating that Rodriguez
had requested permission to be absent " since she alleges she
has been summoned by the National Labor Relations
Board." Pla concluded by stating that he had excused
Rodriguez but had instructed her to bring "the summons"
when she returned to work on Thursday, September 10.
Rodriguez visited the Regional Office on September 9, but
the investigator assigned to matters concerning the
Company was not there that day. A Mrs. Morales at the
Regional Office gave Rodriguez a typed statement stating:
Mr. St. Bernard, who was handling the investigation
of the IBEC Packing case, is not in the office today.
Should he consider it necessary to interview you, he will
get in touch with you either by letter or in person.
Rodriguez did not work on September 10 because Pla
would not accept Morales' statement as an excuse for her
absence the preceding day. Pla claimed that Rodriguez had
asked for permission to keep an appointment which had not
existed. Rodriguez denied having told Pla that her visit to
the Board had been arranged in advance. Pla placed a
memorandum in Rodriguez' personnel file dated Septem-,
ber 10, addressed to Forelady Padilla, stating that
Rodriguez had reported for work but had not brought in
the summons from the Board. The memorandum concludes
14 Testimony of Rodriguez.
15 Personnel Manager Pla was less candid When asked if he was aware
of Rodnguez's union activity Pla answered, "I think so "
IBEC PACKING CO., INC. 421
with the statement "for that reason she asked to be given
time to go to the office to get it in order to bring it."
Rodriguez reported back to work on September 11 at her
regular reporting time of 7 a.m. However, she was not
permitted to start work until an hour and 15 minutes later
after Pla had arrived at the plant and Rodriguez had met
with him. Pla again insisted that Rodriguez had asked for
permission to be off on September 9 because of an
appointment with the Board but later allowed her to resume
work. She was not paid for the time she lost on September
10 and 11 and her attendance record for September 9 and
10 was marked absence without notification, and she was
marked late for the time she had spent waiting for Pla on
September 11.
As to all memoranda and warnings placed in her file
starting with that of June 17, Rodriguez was not informed
in any way or at any time that such documents were being
placed in her file nor was she shown any of the memoranda
which were addressed to aspects of her work following June
17.16
The next memorandum in Rodriguez personnel file is
dated September 18. This document, captioned "Inspection
of Scrap," carries the notation that it is from Forelady
Padilla and Production Coordinator Vazquez but is signed
by Seda. The memorandum notes that on a number of
occasions Seda had noted Rodriguez inspecting scrap
whereas it was his understanding that this was the job of
leadgirls Lillian Rivera and Virginia Rodriguez while
Carmen Rodriguez was to inspect the pet food and the
grated. Seda asked Padilla and Vazquez to notify him if
these functions had been changed as he feared that having
three leadgirls inspect the scrap would lead to improper
inspection of the pet food and grated. Seda asked that they
investigate and take the proper corrective action.
The next documents in the personnel file are dated
October 14 and 15 and relate to a complaint about
Rodriguez' "uncommunicative attitude." The first memo-
randum, from Forelady Padilla to Production Coordinator
Vazquez, complained that Rodriguez showed annoyance at
being given instructions and on one occasion she had
complained "in an annoyed tone" that she could not take
care of the pet and grated at the same time. Padilla
concluded,
In view of the situation, I recognize that this Lead-
girl is completely lacking in efficiency and I believe her
to be hardly competent. I wish to make you aware of the
situation between this lead-girl and her work and that if
she does not improve within six to seven weeks, I would
recommend that she be discharged due to her
inefficiency.
The October 15 memorandum is from Vazquez to Seda
recommending that a meeting be held with Rodriguez and
any other person involved "in as much as other times she
has been admonished verbally." Seda testified that no
action was taken on Vazquez' recommendation for a
meeting with Rodriguez.
On October 20 Seda placed a memorandum in the file
addressed to Personnel Manager Pla complaining about
Rodriguez' attitude toward Maria Padilla which, he said,
was causing trouble between Maria Padilla and a cleaner
named Rosa Marie Seda. In this memorandum Seda
explained that not much is required to make someone else
feel bad and that "probably the ironic smile given to Maria
Padilla caused Padilla's upset." The memorandum con-
cludes with the statement "I'm writing this down because
the minute I hear again that Maria Padilla is being
mistreated, there will be a recommendation for disciplinary
action." No memorandum was put in Maria Padilla's file
concerning the incident between her and cleaner Seda.
There are two memoranda in Rodriguez' personnel file
dated December 23. The first, from Forelady Padilla to
Vazquez states that Padilla had allowed a reasonable length
of time to go by but that Rodriguez continued to
demonstrate "a negative attitude and lack of interest in her
work." Padilla states that leadgirl Lillian Rivera, in charge
of line 1, claimed that Rodriguez refused to follow orders
and that instead of doing her own job of inspecting the
grated and pet food she continued to check the scrap which
was the job of another leadgirl. Padilla noted that she
would be admonished if fishbones were found in the grated.
Padilla recommended "that the proper action should be
taken, inasmuch as she does not speak to her other
coworkers and her attitude is completely negative." The
second December 23 memorandum is from Vazquez to
Seda stating that in view of Padilla's memorandum he did
not believe that the situation could continue and recom-
mending that Rodriguez be dismissed.
The next personnel file entry is a two-page memorandum
from Seda to Personnel Manager Pla referring to Padilla's
December 23 memorandum. Seda stated that Rodriguez
does not speak to other leadgirls unless she is questioned,
noted that her attitude toward the leadgirl in charge of line
1 was completely negative, and expressed the view that she
would not change her attitude as he saw no effort on her
part to improve. Seda referred to his September memoran-
dum in which he had referred to Rodriguez performing the
tasks assigned to other leadgirls and his belief that her
failing to check the grated was leading to complaints about
bones in the Company's products. Seda stated that the
leadgirls had been told that grated inspection was very poor
but Rodriguez continued to spend her time checking the
loins and scrap. Seda noted that good communication was
important in the performance of any job and he did not
believe the Company would be able to accomplish this with
Rodriguez. Seda concluded with the suggestion that the
matter be discussed with Rodriguez' forelady and the
production coordinator as soon as possible.
The plant closed- for vacation at the end of the workday
on December 23 with production scheduled to resume on
January 7. On December 29 Rodriguez went to the plant to
pick up her pay and nothing was said to her at that time
about her continued employment. When Rodriguez
reported for work on January 7 she was told not to start
work but to go to Production Coordinator Vazquez' office
to wait for Personnel Manager Pla. There Rodriguez spoke
to Pla on the phone and he advised her that her job was
16 Seda testified that it was he who had written a memorandum to the memorandum was not a warning but more in the nature of an expression
personnel department regarding the way Rodriguez had requested of his feeling concerning the manner in which an employee should ask for
permission to be absent on September 9. Seda testified that his permission to be absent at the close of a day.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ended. Pla said nothing further and Rodriguez did not ask
the reasons for her discharge because it had come as a
surprise to her.
During the afternoon of January 7 Rodriguez called the
plant to speak to Pla but he was not there and she spoke to
Vazquez asking for a letter concerning her discharge.
Vazquez replied that the Company did not issue discharge
letters even though she claimed that she needed one to draw
unemployment compensation. Vazquez offered to talk to
Pla and stated that a letter would be sent to her home.
Rodriguez called the plant a second time on January 7, on
this occasion speaking to Pla, reiterating her request for a
discharge letter.
The last two entries in Rodriguez' personnel file consisted
of a memorandum from Vazquez to Seda dated January 7,
1970,17 and second a memorandum from Seda to Pla dated
January 8, 1971, transmitting Vazquez' memorandum. In
Vazquez' memorandum the production coordinator reports
on his telephone conversation with Rodriguez on January
7, 1971, wherein she had asked for a discharge letter from
Pla. Vazquez claimed that Rodriguez became angry and
called Vazquez "a son-of-a-bitch." Seda's note to Pla
transmitted Vazquez' memorandum of the previous day
and suggested that the document be kept in Rodriguez' file
although she was no longer employed.18
Although a letter was subsequently sent to the Company
demanding her reinstatement, the Respondent has never
given Rodriguez any reason for her discharge.
Following filing of the charge in the instant proceeding
on January 19, 1971, the Company wrote to the Board's
Regional Director setting forth the reasons for her
discharge as follows:
In relation to the employee Carmen I. Rodriguez, the
latter was discharged for inefficiency, a negative
attitude, little communication and excessive absentee-
ism. For such reasons her supervisors recommended
that the employee wasn't of any use to them on the
job.19
Seda testified that Rodriguez was "insubordinate" because,
as he claimed to have witnessed, she was reluctant to take
instructions from her line supervisor and did not obey those
instructions. He claimed she disobeyed instructions by
refusing to devote herself to inspecting the grated and pet
food and instead did the work of other leadgirls so that her
ownjob was not satisfactorily performed. Seda's characteri-
zation of Rodriguez' alleged inefficiency again referred
back to her failure to spend full time on her own job of
inspecting the pet food and grated resulting in an excessive
amount of bones in the grated. Seda referred to a meeting
with Rodriguez and the other leadgirls at which the
customer complaints about bones in the grated were
discussed and steps to be taken to correct the situation had
17 This is quite obviously a misdating and should read 1971.
18 During examination of Rodriguez Respondent sought to establish
that she had characterized Vazquez as stated in his January 7, 1971,
memorandum. Rodriguez denied the accusation claiming instead that she
had told Vazquez he should remember there was a God in heaven and that
a time would come when everything done on earth would have to be paid
for up there Vazquez was not called to testify in this proceeding. Based
upon her demeanor while denying the accusation directed against her,
coupled with the Company's failure to call him as a witness. I credit
Rodriguez' disavowal of the accusation contained in Vazquez' memoranda.
Accordingly, I conclude that the Company has failed to establish that she
been proposed. Seda claimed that after that meeting
complaints about bones. in the tuna continued. Seda did not
claim to have spoken to Rodriguez again about any alleged
continuation of customer complaints. As to Rodriguez'
alleged "negative attitude," Seda stated that this stemmed
from her refusal to talk to Seda, or to the other leadgirls and
other persons at her level of supervision, "dust did not talk
to anyone at all." However, Seda testified that Rodriguez'
attention was never called to this situation.
Leadgirl Lillian Rivera, called as a witness by the
Respondent, testified that Rodriguez was supposed to
inspect only the grated and pet food and that Virginia
Rodriguez was assigned to the scrap and pieces. Rivera
claimed to have observed Carmen Rodriguez inspecting the
scrap on many occasions both before and after the union
election in July. However, as to this testimony I note
Rodriguez' uncontradicted claim that she was first assigned
to inspection of the grated and pet food on August 4,
following the union election on July 31, and that prior to
the balloting her job was inspection of the scrap. Rivera
claimed that Rodriguez never spoke to the other leadgirls in
the plant. However, Rivera also testified that this had been
Rodriguez' practice most of the time that she had been in
the plant. Despite this lack of communication on Rodri-
guez' part "during the most of the time" she had been
employed, including a period of 15 months as a leadgirl
prior to June 17, there were no complaints in her personnel
file about such misconduct prior to her participation in the
Union's organizing campaign.
The final grounds stated for Rodriguez' discharge was
excessive absenteeism. A compilation of the absences in
days and total hours of the various leadgirls reveals that
Rodriguez was absent on 21 days for a total of 110 hours in
1970.20 Factoring out the days and hours involved in
Rodriguez' visit to the Board in September, her absences
occured on 18 days for a total of 92-3/4 hours. Other
leadgirls had the following attendance records for 1970.
Maria Padilla was absent on 13 days for a total of 77-3/4
hours; Lillian Rivera was absent on 9 days for a total of 42
hours; Gloria Ramirez was absent on 9 days for a total of
65 hours; Ines Lebron was away on 7 days for a total of 49
hours; Virginia Rodriguez was absent on 5 days for a total
of 27 hours; and Rosaura Martinez was absent on 6 days
for a total of 19 hours. Seda and leadgirl Lillian Rivera
testified that the absence of a leadgirl affects production
because their replacements are not trained for the job and
as a result the same quality of work is not performed.
However, Rodriguez' personnel file contains a document
entitled "Employee's Rating Record" dated May 2, 1967.
This document is signed by Emma Padilla's predecessor as
forelady. Among the factors upon which an employee is
rated is attendance and for this evaluation Rodriguez'
did use obscenities in that conversation.
19 I note that in its stated reasons to the Board for Rodriguez' discharge
the Company did not refer to her alleged supervisory status
20 The 21 days included September 9, 10, and II when Rodriguez went
to the Board, was prevented from working on September 10, and was kept
from work for 1 hour and 15 minutes on September 11. Her attendance
card shows that for September 9 and 10 her absence was marked as having
been with "no notification" and her failure to report on time on September
I1 is marked "lateness " In comparing her attendance record with that of
the other leadgirls I have deducted the figures for those 3 days.
IBEC PACKING CO., INC. 423
attendance was noted as being "below average." Despite
this known below average attendance record Rodriguez
was subsequently promoted to the position of leadgirl
although Respondent submits that attendance of leadgirls
is essential because satisfactory replacement cannot be
obtained.
5. Conclusions and findings
I find that Carmen I. Rodriguez' discharge and the
memoranda and warnings placed in her personnel file prior
thereto were part and parcel of a campaign directed against
this outspoken union adherent and that her discharge
violated Section 8(a)(3) and (1) of the Act.
Rodriguez had been employed by the Company since
1962, including a period of almost 1-1/2 years as a leadgirl,
and from that time until June 17 her record was devoid of
any warnings or disciplinary memoranda other than a form
notice for low production given to many of the Company's
employees. Her employment record discloses that prior to
her promotion to the leadgirl position she had a demon-
strated attendance problem of which the Company was well
aware. On June 17 the first of a series of memoranda
complaining of a negative attitude and lack of communica-
tion on Rodriguez' part was placed in the file. Yet, her
failure to talk to fellow employees was nothing new but, as
Lillian Rivera testified, was characteristic of her behavior
for as long as she had been a company employee. It is only
after her participation in the Union's campaign, her active
solicitation for the Union, her distribution of union leaflets
at the plant gate, and her being singled out for attention in
antiunion handbills distributed in the plant that her
longstanding pattern of behavior became a matter requiring
a disciplinary warning in the file.
Rodriguez ' personnel file contains no material of adverse
nature entered between June 17 and September 8. Seda
testified that he was not aware of any union activity in
general or of such activity on Rodriguez' part following the
Union's defeat in the July 31 election. However, on
September 9 Rodriguez went to the Board's Regional Office
to complain about conduct which she considered discrimi-
natory in nature, namely her being singled out by being
denied the opportunity to wear the same uniform as the
other leadgirls. It was following her visit to the Board -that
the flurry of memoranda of complaints leading to her
discharge on January 7, 1971, make their appearance. Thus,
on September 8, 9, and 10 there are three memoranda
devoted to the manner in which she requested permission to
be absent to visit the Board's office and was thereafter
refused the opportunity to work on September 10 because
of that visit. Further, it was after her visit to the Board that
memorandum was piled on memorandum complaining
about her "negative attitude ," her "inefficiency ," and her
general inability to handle the job. Significantly, although
Rodriguez was an employee of long standing and had
fulfilled the requirements of a leadgirl for a period of
almost 1-1/2 years prior to the first adverse comment
appearing in her personnel file, these criticisms were never
called to her attention, she was not shown any of the
memoranda as they were prepared or before they were
placed in her file, and the Company made no effort to
correct her unsatisfactory behavior, if unsatisfactory it was.
Assuming that the memoranda in her file honestly portray
Rodriguez' conduct, it seems fair to infer that but for her
union activity, which was of a continuing nature as
demonstrated by her visit to the Board on September 9, the
Company would have made some effort to correct the work
attitude and performance of an employee of long standing
and demonstrated ability to perform the job to which she
was assigned . Accordingly , I shall recommend that
Respondent be ordered to reinstate Mrs. Rodriguez to her
former position and to make her whole for any loss of
earnings resulting from her discharge.
C. Diaz' Alleged Threats of Plant Closing
As amended at the hearing the complaint alleged that on
various dates in July Hiram Diaz told employees that if the
Union won the election the plant would be closed.
The only witness questioned about the alleged incident
was Ilsa Brunet Maletero , who testified that she knew Diaz
was in the plant the day before the election but that Diaz
did not tell her anything about the Union.
In addition to denying that the statements had been made
and asserting that if made were protected by the freedom of
speech provision of the Act, the Company defended as well
on the assertion that Diaz is not a supervisor within the
meaning of the Act. Whether Diaz is a supervisor or not
and whether such statements are protected by Section 8(c)
of the Act or not, the evidence does not support a finding
that Diaz made the alleged statements . Accordingly, I shall
recommend dismissal of this allegation of the complaint.
D. Emma Padilla 's Alleged Warnings Concerning
Voting
As amended at the hearing the complaint alleged that
Forelady Emma Padilla, on June 31, the day of the
representation election , asked an employee if she was going
to vote and then told her that if she voted for Respondent
she had nothing to fear.
As with the allegation concerning Diaz , the only witness
questioned about this election incident was employee Ilsa
Brunet Maletero. Brunet testified that on election day an
employee who was at Brunet's side told Forelady Padilla
that she was nervous, to which Padilla replied there was no
reason to be nervous . General Counsel then showed Brunet
the affidavit she had given during the investigation of this
case in August 1970 . After reading her statement Brunet
insisted that the testimony she had given in this proceeding,
condensed above, was the truth . Brunet added that Padilla
had told the employee involved that she should think it over
well.
I do not credit Brunet's claim that a Board investigator
would include material in her affidavit that she did not pass
on to him. However , where a witness has given two
conflicting versions of an event , first in her affidavit that
the incident did occur and in her sworn testimony in this
proceeding denying its occurrence, I do not believe it
behooves the trier of the facts to choose between these two
conflicting versions given by the same witness in the
absence of corroborating evidence. Accordingly, I find the
General Counsel has not sustained his burden of establish
ing that Padilla threatened an employee as alleged and shall
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend the dismissal of this allegation of the ORDER
complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed to
effectuate the policies of the Act. I shall recommend that
the notice to employees attached hereto shall be posted in
both English and Spanish.
Having found that the Respondent unlawfully discharged
Carmen I. Rodriguez, I shall recommend that the Company
be ordered to reinstate her to her former position, or, if that
position no longer exists, to a substantially equivalent
position, without prejudice to her seniority and other rights
and privileges, and to make her whole for any loss of pay
that she may have suffered as a result of Respondent's
unlawful conduct. Backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, with interest added thereto in the manner set forth in
Isis Plumbing & Heating Co., 1,38 NLRB 716.
It will also be recommended, in view of the nature of the
unfair labor practices in which the Respondent engaged,21
that it cease and desist from infringing in any manner upon
the rights guaranteed employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. IBEC Packing Company, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Confederacion Laborista de Puerto Rico is a labor
organization within the meaning of Section 2(5) of the Act.
3. By engaging in certain described conduct referred to
here and above in section III, B , hereof, Respondent has
discriminated against Carmen I. Rodriguez in regard to the
terms and conditions of her employment in order to
discourage activities protected by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. , The Respondent has not engaged in other unfair
labor practices as alleged in the complaint.
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: 22
Respondent, IBEC Packing Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities in Confeder-
ation Laborista de Puerto Rico, by discriminating in regard
to the hire and tenure of employment of Respondent's
employees in order to discourage membership or activities
therein.
(b) 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
deemed necessary to effectuate the policies of the Act:
(a) Offer Carmen I. Rodriguez immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of pay she
may have suffered as a result of her discharge in the manner
set forth in "The Remedy" section hereof.
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post in both English and Spanish at its Mayaguez,
Puerto Rico, plant copies of the attached notice marked
"Appendix." 23 Copies of said notice, on forms provided by
the Regional Director for Region 24, after being duly
signed by the Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 24, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.24
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
21 See N.L.R.B, v. Entwistle Mfg Co, 120 F.2d 532, 536 (C.A 4)
22 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall , as provided in
Section 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.
23 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 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."
24 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
IBEC PACKING CO., INC. 425
"Notify the Regional Director for Region 24, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL also make up all pay Carmen I. Rodriguez
lost with 6 percent interest.
All of you are free to become or remain or refrain from
becoming or remaining, members of Confederacion
Laborista de Puerto Rico, or any other labor organization.
After a trial at which all sides had the chance to give
evidence, it has been, decided that we, IBEC Packing
Company, Inc., have violated the National Labor Relations
Act, and we have been ordered to post this notice:
The National Labor Relations Act gives you, as
employees, certain rights, including the right to self-
organization; to form, join, or help unions; and to bargain
collectively through a representative of your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT do anything that interfereswith any of
your rights listed above.
WE WILL NOT fire or take any reprisal action against
any of you because you join, support , or engage in
organizational activities on behalf of Confederacion
Labonsta de Puerto Rico, or any other union.
WE WILL offer to reinstate Carmen I. Rodriguez to
her job, with full seniority and all other rights and
privileges, since the Board found that she was
discharged because she supported the organizational
campaign of the above-named Union.
Dated_;_ By
IBEC PACKING COMPANY,
INC.
(Employer)
(Representative) (Title)
WE WILL notify;immediately the above-named individual,
if presently serving in the Armed Forces of the United
States, of the rightrto full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its,provisions may be directed to the Board's Office, Pan
Am Building, 7th Floor, P.O. Box UU, 255 Ponce de Leon
Avenue, Hato Rey, Puerto Rico 00919, Telephone
809-764-2424.