Jaccob E. Decker & Sons

National Labor Relations Board - Board Decisions

Sep 5, 1979

244 N.L.R.B. 875 (N.L.R.B. 1979)

JACOB E. DFECKLR & SONS
Jacob E. Decker & Sons and United Food and Com-
mercial Workers International Union, AFL-CIO.
IA)cal Union No. 171.' Case 23 CA 5251
September 5. 1979
SUPPLEMENTA. DECISION AND ORDER
BY CIHAIRMAN FANNING ANI) MEMBERS JENKINS
AND MlRPHIY
On June 4, 1979, Administrative Law Judge Mar-
ion C. Ladwig issued the attached Supplemental De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings. findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. Jacob E. Decker & Sons.
San Antonio. Texas. its officers, agents, successors.
and assigns. shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for the notice ordered to be posted in
the Board's original Decision and Order (223 NLRB
70).
' The name of the Charging Party. formerly Amalgamated Meat Cutters
and Butcher Workmen of North America. AFL-CIO. Local Union 171, is
amended to reflect the change resulting from the merging of Retail Clerks
International Union with Amalgamated Meatcutters and Butcher Workmen
of North America on June 7. 1979
APPEN DIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF I HE
NATIONAL LABOR RELATI()NS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, an Administrative Law Judge of the Na-
tional Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has or-
dered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that restrains or
coerces employees with respect to these rights.
More specifically:
WE WII.L NOT discharge. suspend, or otherwise
discriminate against employees for joining or
supporting United Food and Commercial Work-
ers International Union. AFL-CIO. Local
Union No. 171. or any other union.
WU wItL NOT threaten employees that the,
will lose their jobs and benefits if the employees
select a union to represent them or otherwise as-
sist the Union.
WE II.t. NOT tell our employees that we know
who is engaging in union activity.
WE WI NOT interrogate employees concern-
ing their union activities an sympathies and that
of their fellow employees.
WE WILt. reinstate Alfredo Orosco.
WE wl. make whole Alfredo Orosco. John T.
Dominguez. Raymond Tarin. and Jesse Garcia.
JAC'OB E. D(-KIR & SONS
SUPPI.EMENIAI. DECISION
SIAtININI O() IHE CASE
MARION C. LAI)WI(;. Administrative Law Judge: On
March 15 the Board issued its Decision and Order. 223
NLRB 70 1976). in which it directed Respondent Com-
pany to offer reinstatement to discriminatorily discharged
employees Alfredo Orosco and John Dominguez. to pay
them and two discriminatorily suspended employees that
earnings they lost by reason of the discrimination, and to
take certain other remedial action.
On March 13. 1978, the Court of Appeals for the Fifth
Circuit. 569 F.2d 357 (5th Cir. 1978). entorced the Board's
entire Order. with the exception of the portion directing the
reinstatement of Orosco and Dominguez. and remanded the
case for the Board to determine whether reinstatement is an
appropriate remedy in view of their postdischarge felony
convictions. On July 12. 1978. the Board issued an Order
reopening record and remanding proceeding to the Re-
gional Director for further hearing "for the purpose of ad-
ducing evidence relating to Orosco's and Dominguez' suit-
ability for reinstatement as a result of their felony
convictions" pursuant to the court's remand. The Regional
244 NLRB No. 140
875
DI)t (ISIONS OF NATIONAL LABOR RELATIONS BOARI)
l)irector issued a notice of hearing on July 24, 1978. and the
supplemental hearing was held in San Antonio, Texas. on
December 4, 1978.
Upon the entire record, including my observation of the
demeanor of' the witnesses, and after due consideration of
the brieft filed by the General Counsel, the Company. and
the Union. I make the following:
FINI)INS AND CONCIUSIONS
A. Postdischarge Felony ('onvictions
Alfredo Orosco was boner leadman with more than 5
years of service when he was discriminatorily discharged on
June 28, 1974, because of his union activity. (As the Board
found, 223 NLRB at 74, "Orosco signed a union card on
June 20 and was instrumental in getting other employees to
sign cards, about 20 of them in the period June 20-28, 1974.
the date of his discharge.") On February 26, 1976, he
pleaded guilty to the offense of "possession of more than
four ounces of marijuana" (a felony in Texas). The "plea of
guilty" judgment was signed on March 25, 1976, and
Orosco was placed on 5-year probation, which he was still
serving at the time of the supplemental hearing. (The of-
fense was committed on May 27, 1975-about II months
after his illegal discharge. After being summoned by a
friend at night to check a stalled truck, and after helping to
repair the truck, Orosco assisted in the unloading of eight of
nine 100-pound sacks of marjuana, upon the promise of
"good" pay Orosco explaining at the hearing that his little
girl was sick at the time and "I needed the money real
badly." ie was arrested later when he returned for his pay.)
John Dominguez, hired on June 11, 1974, at age 20 in the
cleanup crew, was still serving his 90-day probationary pe-
riod when he was illegally discharged on September 6,
1974. He had not disclosed on his employment application
that he was then on judicial probation, having been con-
victed as an adult about 2 years earlier for burglary. (As the
Board found. 223 NLRB at 75, he was discharged "because
his machines had been 'tagged' by the health inspector and
his performance 'wasn't worth a damn,' " but his discharge
was illegal because his union activity "was in fact the basis
at least in part for his discharge.") On May 2. 1975, he
pleaded guilty to the Federal felony offense of using the
telephone to distribute LSD. (The offense was committed
on October 25. 1974, 7 weeks after his discharge). He was
sentenced under the Federal Youth Corrections Act and he
served over 2 years in a correctional institution until his
release in June 1977 on probation, which he was still serv-
ing at the time of the supplemental hearing. While on pro-
bation he has been permitted to perform oilfield work out-
side the county.
B. ('ompanvi Policy and Practice
At the supplemental hearing the Company took the posi-
tion that if there is a guilty plea of a felony (as made by
discharged employees Orosco and Dominguez). the person
is automatically disqualified to be reinstated, regardless of
what the felony involves, because the Company "has fired
and refused to hire anyone who has a felony conviction, for
any reason."
The Company's documentary evidence does appear to
indicate that the Company routinely refuses to hire new
employees with a felony conviction, despite the notation on
the employment application form that "Conviction does
not necessarily disqualify you from employment." (The
Company introduced into evidence 14 applications, bearing
dates from December 16, 1975. through September 12.
1978. indicating that the applicants were ineligible for em-
ployment because of felony convictions.) The evidence.
however, does not support the Company's contention that it
automatically discharges employees for felony convictions.
As an example, the Company hired boner Santiago (ion-
zales in 1970. About December 1973 he was arrested at the
plant and indicted on a charge of assault with intent to
commit murder. On August 26, 1974. when he pleaded
guilty to the lesser felony offense of "assault with intent to
commit murder without malice." the judge sentenced him
to 3 years of confinement in the penitentiary. He was taken
immediately from the courthouse to jail. Instead of the
Company automatically discharging him. Branch Manager
Harold McCarty signed his appeal bond, enabling him to
be released after 2 weeks. He continued to work for the
Company, despite the fact that sentence had been passed.
Nearly 14 months later, on Thursday. October 16. 1975, a
judge signed an "Order suspending imposition of sentence"
and placed him on 5-years probation. It is undisputed that
afterwards at work, when McCarty asked him "how did I
come out" and he told McCarty that he "had pled guilty
and they gave me five years probation." McCarty "just said
okay and did not discharge him. He continued to work
until the following Saturday when he resigned to go to work
in Houston. (There is no evidence that the Company--
which had permitted him to work for over a year after sen-
tence was passed-either encouraged or forced the resigna-
tion after the sentence was suspended.) It is also undisputed
that the Company again employed him in December 1976
when he told McCarty that he needed a temporary job "to
get back on my feet to go back to Houston." Despite his
earlier felony conviction, McCarty told him to fill out an
application and hired him for 2 weeks after he had taken a
physical examination. About 2 months later, on February
25, 1977, he returned to San Antonio and asked McCarty
for full-time employment. This time McCarty changed his
position about hiring Gonzales and wrote a memo which I
find was prepared to support the Company's defense in this
proceeding-that it should not be required to reinstate ille-
gally' discharged Orosco and Dominguez after their felony
convictions. (McCarty testified on cross-examination that
he began writing more memos of conversations after the
litigation of the unfair labor practice charges. and admitted
that he "Probably" wrote the memo concerning his conver-
sation with Gonzales because it potentially could "come up
at a hearing." McCarty did not write memos of the conver-
sations when he gave Gonzales further employment 2
months earlier. nor when he permitted Gonzales to submit
a new application the following December. as discussed
below.) McCarty wrote in the February 1977 memo that "I
asked Santiago how he came out on the trouble he was in.
He informed me that he was on probation. I then told him
that due to company policy, we could not reemploy him
876
JACOB E-. DEC(KER & SONS
due to his conviction of a felony ." Then in December 1977
Gonzales again sought permanent employment and asked if
McCarty would telephone the probation officer about the
suspended sentence (without confinement in the peniten-
tiary) not being considered a felony conviction. McCart
did telephone the probation officer and sent Gonzales to
pick up the officer's letter (which stated that "In accordance
with Article 42.12 of the ('ode of Criminal Procedure, im-
position of the sentence has been suspended and this is not
viewed as a conviction by the State. At such time that the
defendant satisfactorily completes his Probation. the case
against him shall be dismissed"). Despite the fact that (ion-
zales was still on probation at the time. McCarty admiit-
tedly called the Company's headquarters in Phoenix and
then told Gonzales "Well. it's okay right now." and that he
could submit a new application for employment. ater,
when Gonzales called in to check on his application. Mc-
Carty told him that the Company could not hire him be-
cause one of his references was bad. (At the hearing M1c-
Cart) also gave other reasons for not rehiring Gonzales. At
one place McCarty testified that he had tentatively decided
to rehire this good employee if his references checked out.
but in the meantime, "Phoenix told us to back off on it,"
that "They frowned on the man's reemployment due to his
past felony conviction." o the contrary, he later testified
that "the reason I wouldn't bring him back" was that (;on-
zales' coworkers "do not want to work with him an, longer
because they are afraid of him." I note that (ionzales had
been "no-billed" after killing a man since his earlier conL ic-
tion.)
This example-where Branch Manager McCart (ia)
went on Gonzales' appeal bond and continued to emplo
him after sentence was passed on his felony conviction. (h)
merely said "okay" and still did not discharge Gonzales
about 14 months later when Gonzales reported that he
"had pled guilty and they gave me five years probation," (c)
later, following his resignation, gave Gonzales 2 weeks'
temporary employment despite his earlier felony convic-
tion. and (d) received authorization from the Pheonix head-
quarters to allow Gonzales to file an application for full-
time employment although he still remained on proba-
tion --clearly belies McCarty's claim, in one part of his tes-
timony, that the company rule relating to the employment
of a convicted felon is "when they are convicted of a felony
.. and sentence is passed, their services are terminated. It's
a company policy." (From his demeanor on the stand, Mc-
Carty did not impress me as being a candid witness.)
Another example also demonstrates that the Company
has not been automatically discharging employees who are
convicted of felony offenses, but instead has been leaving
their continued employment to the discretion of the Phoe-
nix headquarters. Mario Rodriguez was hired in 1971. On
November 3, 1973, he was arrested for possessing mari-
juana. The following Monday, November 5. he asked
Branch Manager McCarty what would happen if he got
convicted. McCarty admittedly answered, "Now. Mario,
this is a Phoenix decision. If you're convicted on this. I'll do
everything I can to help you." His trial was delayed until
February 16, 1977 (subsequent to April 7, 1976, when the
Company took the position herein that Orosco and l)omin-
guez should not be ordered reinstated because of their fel-
ony convictions). He pleaded guilt!. and the ('ompan dis-
charged him on March 25, 1977, about 3 weeks hcrtc
sentence was passed on April 14, 1977. Mc(Carit consid-
ered Rodrigues a good emplo,,ee and unsucccssfull, at-
tempted to persuade the probation officer to waive hav ing
him serve probation. I inter that Mc(Carlt, anted to retain
this good employee as he had honer (ionzales, ho was
sentenced on a felons cons iction in 1974 belore the Coim-
pany took the felony-disqualification position on April 7.
1976 hut that the Phoenix headquarters refused.)
I note that at to other places in Branch Manager
McCart's testimony he admitted that the contlined em-
ploy ment of' convicted felons is left to the discretion of' the
Phoenix headquarters. When testit f'tg about the discharge
of employee Gilbert ('anales on August 22 1970(). for ialsi-
f'ing his employment application (after he admitted during
a lie detector test that he was a convicted felon). Mc(Carts
testified that "An' time we have anbod, that lcaseCs for a
felon! consictioln . .. e have to get it cleared through our
labor relations department in Phoenix." I I later added.
"that has been our practice all along. AnNtime we dismiss
anbod fr a elony. it has to be cleared through 'hoenix.-'
(I infer that when (ionales was retained as lin emplo)! e in
1974. after he pleaded guiltn and uvas sentenced and hen
he was rehired for 2 eeks in 1976. as l cll s he n hie as
first rejected for full-time reemplox mient hut later permitted
to file a new application for such reeniploslient in 1977.
McCart\ each time "cleared it through Phoenix") I also
note that the Compans's current wFork rules gixe SonC Inli-
cation of hou the Company will exercise its discretion. The
posted rules of conduct, signed hb NlcCart on September
30. 1977. after listing conviction of a felon as one o the
mans "major violation- shich " ma'" result in dischll;arge,
states: "It should he Linderstood that the discipline deter-
mined for the violation of a specific rule at a specific time
v ill he determined hx rc ies, of the emplo ee's past record.
including past discipline and the emplosee's overall ork
record."
C. Cont'nionl.s and (C oncluhding Findihin.s
-The General Counsel contends that the order reinstatin
both Alfredo Orosco and John Dominguez should be atf-
firmed. He argues in his brief: "It would he an injustice to
add to the punishment already assessed and being paid hb
Orosco by holding that Orosco was not suitable for rein-
statement because of his one mistake that resulted in no
profit to him and no injury to any other persons but him-
self. This is particularly true , here Respondent has ad-
vanced no evidence in addition to the conviction to) show
Orosco was not suitable for reinstatement." Concerning
Dominguez. he argues that the United States district court's
"rehabilitation efforts have been successful" and "certainl,
it was not the C'ourt's intention that further action be taken
against Dominguez than it took at the time otf the co1nvic-
tion in May 1975. Further. absent of some additional show-
ing or evidence that Domincguez warts not a suitable em-
plosee for reinstatement. the Board would not intertere
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Court's efforts to rehabilitate by invoking addi-
tional punishment."
The Union contends in its brief that "the Employer's po-
sition that it outomaticall disqualifies any person who has
been convicted of a felony from possible employment ... is
merely an afterthought and is being used as a pretext in its
attempt to deny Orosco and Dominguez reinstatement."
Despite the evidence to the contrary, the Company con-
tends in its brief that its consistent policy has been to "ter-
minate employees who have been convicted and sen-
tenced." It also contends that the crimes for which Orosco
and Dominguez were committed ("possession of more than
four ounces of marijuana" and using the telephone to dis-
tribute L.SD, respectively,) are regarded with such serious-
ness by society that both crimes are felonies; that "Orosco
admitted that he knew what he was doing and that he was
motivated to commit the crime because of the money which
he hoped to make"; that no attempt was made to minimize
Dominguez' crime; and that "Dominguez, who was a pro-
bationary employee at the time he was discharged, is clearly
a recidivist, having previously been convicted of burglarly."
The Company also asserts: "The Board has repeatedly re-
fused to reinstate and award back pay to unlawfully dis-
charged employees who have committed felonies or serious
misdemeanors, regardless of whether such crimes were con-
nected with their employment." The cases cited are inappli-
cable. They include Gifford-Hill & Co.. Inc.. 188 NLRB
337, 338 (1971), where Clark. the discriminatorily dis-
charged employee. "has, since the hearing in this case, been
convicted of five armed robberies for which he is now serv-
ing 15 years in prison," and the Board agreed "that Clark
need not be offered reinstatement and that his backpay
should end as of the time he became unavailable for em-
ployment as a result of his arrest"; MSW Construction, Inc.
d/b/a Hale and Sons Construction. 219 NLRB 1073. 1078-
79 (1975), where "at the time of the hearing [the discharged
employee] was serving a sentence in the Kern County Jail
for misdemeanor burglary": and Keco Industries, Inc., 121
NLRB 1213, 1217-18, 1227 (1958), where two discharged
employees "are now under prison sentences for substantial
periods of time extending into the future" and "immediate
reinstatement of them is not possible." The Company fur-
ther contends that "it is certain that Orosco and I)ominguez
would have been terminated by the Company after their
conviction and sentencing in accordance with the Compa-
ny's normal practice."
At the time of his discharge, Alfredo Orosco had been
employed over 5 years and had been promoted to the re-
sponsible position of boner leadman--a fact which indi-
cates that he had proven himself to be a good employee.
Other than his conviction for possessing more than 4 ounces
of marijuana (a single offense not related to his work), the
Company has given only one reason for not reinstating
him-Branch Manager McCarty testifying that Orosco
"was all over the plant and he wasn't working when he was
supposed to have been." This obviously refers to the short
period from June 20 to June 28, 1974. when he was engaged
in union organizing (getting about 20 coworkers to sign
union authorization cards). for which he was discriminator-
ily discharged. After considering all the contentions and the
evidence-particularly the retention of boner Gonzales af-
ter he was convicted and sentenced: the practice of leaving
continued employment after felony convictions to the dis-
cretion of the Phoenix headquarters; the posted policy of
determining discipline by reviewing "the employee's past
record, including past discipline and the employee's overall
work record": and the belated claim that employees con-
victed of felonies are automaticially disqualified from con-
tinued employment, indicating the Company's efforts to
build a pretextual defense for keeping two illegally dis-
charged union supporters out of the nonunion plant - I find
that in the absence of the unsuccessful union organizational
drive and the unlawful discharges, the Company would not
have disqualified boner leadmen Orosco from continued
employment. I further find that, by contending that Orosco
was automatically disqualified by his conviction, the Com-
pany would discriminate against him by refusing to exercise
its discretion in determining whether he should be retained
as an employee because of his good work record. Under
these circumstances I conclude that Orosco is suitable for
reinstatement, and that it would best serve the purposes of
the Act to reaffirm the order requiring his reinstatement.
I do not find, however, that the reinstatement of John
Dominguez would effectuate the purposes of the Act. When
employed at age 20, he did not reveal to the Company the
fact that he was on judicial probation, having been con-
victed as an adult about 2 years earlier lfor burglary. Ai the
time of his discharge he had not completed his 90-day pro-
bationary period in the cleanup crew and did not have a
good work record. In fact, he was discharged in part "be-
cause his machines had been 'tagged' by the health inspec-
tor and his performance 'wasn't worth a damn.' " (Even if
his testimony is credited that he advised his foreman in the
meantime about his burglary conviction, it is evident that
higher management was unaware of it at the time of the
original trial herein, because the Company was then chal-
lenging his credibility and it undoubtedly would have used
the earlier conviction for that purpose if the foreman had
reported the conviction.) In view of Dominguez' poor work
record. I find that the Company would have had no reason
to decide to retain him as an employee following his second
felony conviction, even if it exercised its discretion in a non-
discriminatory manner. Under these circumstances, I con-
clude that reinstatement is not an appropriate remedy lfor
Dominguez and that his backpay should be tolled on May
2, 1975, the date of his second conviction.
In accordance with the Board's remand order and the
Court's judgment, I hereby make the following recommend-
ed:
ORDER'
The Respondent, Jacob E. Decker & Sons. San Antonio,
Texas, its officers, agents, successors, and assigns, shall:
In the event no exceptions are filed as provided bh Sec 102.46 ot' the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions and recommended Order herein shall, as prosided n Sec. 102 48
of the Rules and Regulations, be adopted by the Board and become Its
findings, conclusions, and Order, and all objections shall be deemed aivsed
for all purposes
878
JACOB E. DECKER & SONS 879
1. Substitute the following forparagraph 2(a) of the Decision, and offer Orosco reinstatement to his former em-
Board's Order of March 15. 197h. reported at 223 NLRB ployment."
70:
2. Substitute the following for the penultimate para-
"(a) Make employees Alfredo Orosco. John Dominguez,
Raymond Tarin. and Jesse Garcia whole for any loss of graph of the notice attached to the Board's )rder:
earnings sustained by them, in the manner set forth in this "Wl: wal reinstate Alfredo Orosco."