J.M.A. Holdings

National Labor Relations Board - Board Decisions

May 12, 1993

310 N.L.R.B. 1349 (N.L.R.B. 1993)

1349
310 NLRB No. 224
J.M.A. HOLDINGS
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In quoting the Respondent’s July 24 notice to striking employees
in sec. II,A,13, par. 2 of his decision, the judge inadvertently omitted
the words ‘‘a job’’ in the last line of the last paragraph between
‘‘when’’ and ‘‘opening exists.’’ 1 All dates are 1990 unless otherwise indicated.
J.M.A. Holdings, Inc. and United Food and Com-
mercial Workers Union, Local 770, United
Food and Commercial Workers International
Union, AFL–CIO, CLC. Case 21–CA–27688
May 12, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 19, 1992, Administrative Law Judge
George Christensen issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We adopt the judge’s finding that the Respondent
did not violate Section 8(a)(3) and (1) of the Act when
it failed to reinstate economic strikers immediately on
the Union’s unconditional offer on their behalf to re-
turn to work. During the strike, the Respondent hired
39 employees to perform the work of the striking em-
ployees. The record shows that it was the Respond-
ent’s policy to advise replacement employees that they
were being hired on a permanent basis. The record fur-
ther shows that this policy was communicated to and
relied on by numerous replacement employees. In ad-
dition, on July 24, 1990, prior to the strikers’ uncondi-
tional offer to return to work that afternoon, the Re-
spondent posted a notice to ‘‘All Recently Hired Em-
ployees’’ stating that they were ‘‘being made perma-
nent employees.’’ At no time did the Respondent indi-
cate to the replacement employees that they were being
hired on a temporary basis, or that their employment
would be terminated at the end of the strike. Under
these circumstances, we find that the employees hired
to replace the strikers are permanent employees. See
Solar Turbines, 302 NLRB 14 (1991).
In so finding, we reject the General Counsel’s con-
tention that the replacement employees had not ‘‘ac-
cepted’’ permanent employment at the time of the un-
conditional offer because they had not completed the
employment application, physical, and drug test. The
Respondent informed employees that they could com-
plete these steps of the hiring process as their work
schedule permits, and that if they fail to pass the phys-
ical they will be ‘‘terminated.’’ The replacement em-
ployees accepted permanent employment at the time
they agreed to work for the Respondent, and followed
through on this commitment by coming to the Re-
spondent’s plant and working. As in Solar Turbines,
supra, the completion of the application, physical, and
drug test were not preconditions to permanent employ-
ment.
Reiterating the minority view he set forth in Solar
Turbines, our dissenting colleague asserts that no firm
commitment to hire can occur until the applicants have
successfully completed the ‘‘pre-employment’’ phys-
ical examination and drug testing, and that any earlier
job offer is merely conditional. In accord with the ma-
jority opinion in Solar Turbines, we find that a firm
commitment to hire the replacements as permanent
employees occurred at the time they accepted the Re-
spondent’s job offer, despite the fact that they were
later informed that in order to continue their employ-
ment, they had to complete a physical examination and
drug testing ‘‘over the next few weeks as the normal
work schedule permits.’’
Further, we find no merit to the General Counsel’s
suggestion that the three striker replacements who
started work on July 25 were not hired prior to the
strikers’ unconditional offer to return to work. The
record shows that each of these employees was offered
and accepted permanent employment during conversa-
tions with Plant Manager Peter Gutierrez on the morn-
ing of July 24, prior to the Union’s unconditional offer
on behalf of the strikers to return to work.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER DEVANEY, dissenting in part.
Contrary to my colleagues, I find that the Respond-
ent had not hired permanent replacements for the eco-
nomic strikers prior to the strikers’ unconditional offer
to return to work, and that the Respondent’s failure to
reinstate the strikers therefore violated Section 8(a)(3)
and (1). I find that the Respondent, within hours before
the strikers’ offer to return, had informed the replace-
ments of its intention to convert them to permanent
status, and that the conditions for such conversion had
not been satisfied at the time of the strikers’ offer.
The essential facts are not in dispute. After its em-
ployees began an economic strike on July 19, 1990,1
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 This case is distinguishable from Kansas Milling Co., 97 NLRB
219 (1951). In that case, the Board found that striker replacements
who were required to complete a 30-day probationary period and
successfully did so were permanent employees ab initio. Unlike a
probationary period, which must necessarily be completed after hire,
the testing at issue here was, by the Respondent’s own description,
within the Respondent’s ‘‘pre-employment’’ procedure.
1 Read 1990 after further date references omitting the year.
the Respondent commenced hiring replacements. The
administrative law judge found that, when asked, the
Respondent consistently informed the strikers and the
replacements that the latter were permanent employees.
During the strike, 39 new employees were offered em-
ployment, of whom 36 began work before the strikers
offered to return and 3 began work the next day. On
July 24, shortly before receiving the strikers’ offer, the
Respondent posted and distributed to the replacements
a memo entitled ‘‘Permanent Employment.’’ The
memo stated in pertinent part: ‘‘All employees who
have been hired during the current work stoppage are
being made permanent employees. All such employees
will be required to pass the company’s pre-employ-
ment physical, which includes drug screen, and to
complete all other parts of the normal hiring process.
Any employee who fails to pass the physical will be
terminated.’’ According to the memo, the physicals
were to be scheduled during the next few weeks.
The established standard for assessing whether strik-
ers have been permanently replaced is that ‘‘if the em-
ployer makes a commitment to the applicant for a
striker’s job, we will normally regard that commitment
as a legitimate replacement even though the striker re-
quests reinstatement before the replacement actually
begins to work.’’ H. & F. Binch Co., 188 NLRB 720,
723 (1971), enfd. in relevant part 456 F.2d 357 (2d
Cir. 1972). However, as I stated in my dissent in Solar
Turbines, 302 NLRB 14 (1991), where an employer’s
hiring practice requires applicants to successfully un-
dergo preemployment screening, such as physical ex-
amination or drug testing, no firm commitment to hire
can occur until these requirements have been com-
pleted and the employer has received the results, so
that the employee is free to begin work. Any earlier
job offer is merely conditional, and cannot serve to de-
prive an economic striker of reinstatement based on an
unconditional offer to return to work.
In the present case, most of the replacements clearly
began work in some capacity before the strikers’ offer
to return. Unlike the judge and the majority, however,
I am not persuaded by the Respondent’s facile rep-
resentations to its new hires that they were employed
on a permanent basis. In Solar Turbines, I found that
such ‘‘magic words’’ were not sufficient to dem-
onstrate a real commitment by the employer. Instead,
it is essential to evaluate the actual quality of the offer
based on all of the facts and within the context of the
employer’s normal hiring practice. In this case the Re-
spondent’s assurances are plainly belied by its July 24
memo announcing that the replacements were ‘‘being
made permanent employees.’’ Certainly, no such con-
version would be necessary if the Respondent itself
viewed the new hires as permanent employees from
the start.
Moreover, the July 24 memo sets out certain condi-
tions for continued employment, including a ‘‘pre-em-
ployment’’ physical examination and drug screen,
which the Respondent characterizes as part of its ‘‘nor-
mal hiring process.’’2 The Respondent’s apparent ini-
tial failure to inform the replacements of these require-
ments does not negate their existence as conditions of
permanent hire. There is no evidence in the record that
the Respondent waived these conditions with respect to
the replacements. To the contrary, the memo expressly
conveys the Respondent’s intention to enforce the re-
quirements and to terminate any new hires who do not
satisfy them. On the same day that the memo was dis-
tributed, however, before any of the replacements
could have removed the conditions and been converted
to permanent status, the economic strikers uncondition-
ally offered to return to work. Therefore, considering
all of the circumstances of this case, rather than focus-
ing narrowly on the Respondent’s self-serving state-
ments during the strike, I find that the Respondent has
failed to demonstrate that the strikers were perma-
nently replaced, and I would order reinstatement and
backpay for those strikers who were denied reinstate-
ment upon their offer to return to work because their
positions were occupied by newly hired employees.
Frank Wagner, Esq., for the General Counsel.
Stanley E. Tobin and James A. Bowles, Esqs. (Farrer &
Burrill), of Los Angeles, California, for the Respondent.
Henry M. Willis, Esq. (Steinsapir, Dohrmann & Sommers),
of Los Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
July 9 through 17, 1991, I conducted a hearing at Los Ange-
les, California, to try issues raised by a complaint issued on
April 25, 1991, based on a charge filed by United Food and
Commercial Workers Union, Local 770, United Food and
Commercial Workers International Union, AFL–CIO, CLC
on August 24, 1990.1
The complaint alleged and J.M.A. Holdings, Inc. (Re-
spondent) denied the Respondent violated Section 8(a)(1) of
the National Labor Relations Act (the Act) by creating the
impression among employees the Respondent was surveilling
the employees’ union activities, threatening employees with
plant closure, lower wages, and discharge if they selected
Local 770 as their bargaining representative, interrogating
employees about their and other employees’ union member-
1351J.M.A. HOLDINGS
2 Counsel for the General Counsel’s posthearing motion to correct
the transcript is granted, and certain errors have been noted and cor-
rected.
3 Although every apparent or nonapparent conflict in the evidence
has not been specifically resolved below, my findings are based on
my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony; therefore, any testimony in the record
which is inconsistent with my findings is discredited.
4 A custom slaughterer butchers cattle it does not own on a per-
head basis, delivering the products to the cattle owner.
5 Local 563 later became Local 770 by merger or succession.
6 By that time only 2 of the approximately 17 meatpackers with
previous operations in the Vernon area were still in business; Federal
and Shamrock.
ship, activities, and sympathies, telling employees it was un-
lawful to engage in a strike, notifying striking employees if
they made unconditional offers to return to work they would
only be considered for future job openings, and notifying
strikers who made unconditional offers to return to work they
would only be reinstated to future job openings.
The complaint also alleged and the Respondent denied the
Respondent’s alleged unfair labor practices caused or pro-
longed the strike; named strikers unconditionally offered to
return to work; and that the Respondent violated Section
8(a)(1) and (3) of the Act by failing to offer those named
strikers immediate reinstatement. The complaint further al-
leged and the Respondent denied, presuming the strike in
question was an economic strike, the Respondent violated
Section 8(a)(1) and (3) of the Act by failing to reinstate
strikers who had not been permanently replaced.
Finally, the complaint alleged and the Respondent denied
Martin Estrada at pertinent times was a supervisor and agent
of the Respondent acting on its behalf within the meaning of
Section 2 of the Act.
The issues created by the foregoing are whether:
1. At pertinent times Estrada was a supervisor and agent
of the Respondent acting on its behalf within the meaning of
Section 2 of the Act.
2. The Respondent committed the acts alleged as viola-
tions of Section 8(a)(1) of the Act and, if so, thereby violated
Section 8(a)(1).
3. The alleged violations of Section 8(a)(1), if committed,
caused or prolonged the strike.
4. Strikers named in the complaint unconditionally offered
to return to work.
5. The Respondent failed or refused to immediately rein-
state those strikers, thereby violating Section 8(a)(1) and (3)
of the Act.
6. In the event the strike was economic, the Respondent
failed or refused to reinstate strikers who had not been per-
manently replaced, thereby violating Section 8(a)(1) and (3)
of the Act.
The General Counsel, Local 770, and the Respondent ap-
peared by counsel and were afforded full opportunity to ad-
duce evidence, examine and cross-examine witnesses, argue,
and file briefs. All three filed briefs.
Based on my review of the entire record,2 observation of
the witnesses, perusal of the briefs, and research, I enter the
following
FINDINGS OF FACT3
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find at
all pertinent times the Respondent was an employer engaged
in commerce in a business affecting commerce and Local
770 was a labor organization within the meaning of Section
2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
The Respondent corporation was formed and wholly
owned by Baker Commodities, Inc. At pertinent times Baker
consisted of five corporations, four wholly owned subsidi-
aries (including the Respondent), and a 50-percent interest in
three other corporations. Baker’s operations were in 23 dif-
ferent localities, including Seoul, Korea, and Tijuana, Mex-
ico. Baker was primarily engaged in the rendering business,
purchasing grease and animal products from restaurants, gro-
ceries, slaughterhouses, etc., processing and selling those
products and vegetable oils. Baker was party to approxi-
mately 14 collective-bargaining agreements with various
unions, including Local 770, other affiliates of UFCW, and
affiliates of IUOE, ILWU, and IBT.
In 1980 Baker purchased a slaughterhouse adjacent to its
headquarters and a plant in Vernon, California. Baker leased
the slaughterhouse to Serv-U Meats, which purchased and
slaughtered cattle and sold the meat products. Serv-U ceased
business when its owner died; Baker subsequently leased the
slaughterhouse to Stockton, a custom slaughterer.4
Baker subsequently leased the slaughterhouse to a succes-
sion of custom slaughterers who were unprofitable and
ceased doing business. There were substantial periods be-
tween tenancies when the slaughterhouse was unused. In
view of the foregoing, Baker finally decided (1986) to try its
hand at operating as a custom slaughterer in the building,
after extensive building improvements. Baker formed the Re-
spondent corporation with the same officers as its parent, i.e.,
James Andrioli, president; Raymond Kelly, executive vice
president, operations; William Sikes, vice president, produc-
tion; and Mitchell Ebright, secretary, vice president, and gen-
eral counsel.
Between its 1986 formation and April 1989, the Respond-
ent negotiated contracts with several meat packers to custom
kill their cattle, including Delta, Acme, and Globe.
At that time, Baker employees in the building adjacent to
the slaughterhouse were represented by Local 563 of the
UFCW5 and in 1987, in a conversation with Kelly, a rep-
resentative of Local 563 stated the International Union want-
ed Local 563 to organize the Respondent’s employees but he
resisted, in the belief Local 563 could not win a Board-con-
ducted election among the Respondent’s employees.
The meatpackers who contracted with the Respondent be-
tween 1986 and 1989 were succeeded in April 1989 by Fed-
eral Meat Packing Co., after a period the Respondent had no
slaughtering to perform and its preexisting work force had
been laid off. 6
In view of the declining business, Federal was only willing
to enter into short-term contracts; the initial contract was en-
1352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The document was distributed in English and Spanish.
8 The complaint alleged, the answer admitted, and I find at all per-
tinent times Sikes, Gutierrez, Pena, Alexander, and Woodward were
supervisors and agents of the Respondent acting on its behalf within
the meaning of Sec. 2 of the Act.
9 I find Andrioli, Kelly, and Ebright at all times pertinent were of-
ficers, supervisors, and agents of the Respondent acting on its behalf
within the meaning of Sec. 2 of the Act.
10 With one exception; when the employees went on strike, Estrada
attended one meeting at which those present were instructed on the
‘‘do’s and don’ts’’ which should govern conduct during the strike.
11 Though from time to time casuals selected by Estrada for em-
ployment were retained as permanent employees when they worked
well in jobs which had been vacated and, along with other non-
strikers, Estrada attempted to recruit replacements when the strike
started.
12 Estrada recommended discipline on occasion to Alexander, but
either Gutierrez or Alexander reviewed the situation and made the
decisions whether to discipline and the extent of the discipline.
13 Estrada recommended employees who worked well but either
Gutierrez and/or Alexander conducted a further review and decided
on any change in assignment or wages of the employees in question.
tered into in April 1989 for a 3-month period with options
for renewal for two successive 6-month periods. Federal ex-
ercised the first option but, by mutual agreement, at the end
of that period the two contracted first, for a 2-month exten-
sion, then a 3-month period and finally day to day, until Fed-
eral ceased doing business entirely in late September 1990.
Because of the uncertainty over how long Federal was
going to continue to require the Respondent’s services fol-
lowing its entry into contractual relations with the Respond-
ent, the Respondent distributed to its employees and had
them read and sign the following document:
I, the undersigned employee, acknowledge that my re-
call from layoff or new hire employment by JMA Hold-
ing, Inc. is for a limited project. JMA Holding, Inc. is
re-opening their slaughter-house as a result of a proc-
essing agreement with Federal Meat Company that pro-
vides for cancellation at any time with [sic] the first 90
days of kill operations and in two six month increments
thereafter. In the event that the processing agreement is
terminated for any cause, employee employment will be
terminated.7
Federal utilized part of the facility, maintained an office
there, and had employees there to dress and distribute the
processed beef. The Federal employees were represented by
Locals 563 and 770 and worked in close proximity to the
Respondent’s employees (as did Baker employees working
next door and represented by Local 563 and 770).
By February 1990, the Respondent employed a work force
of approximately 80, plus Peter Gutierrez, general manager;
Fernando Pena, assistant general manager; Thomas Alex-
ander, kill floor supervisor; Charles Woodward, chief engi-
neer; and leads Jose Franco, Uriel Banuelos, and Martin
Estrada. Sikes spent a substantial amount of time daily di-
recting operations at the facility.8 Andrioli, Kelly, and
Ebright exercised overall control of the Respondent’s oper-
ations from offices in the adjacent building.9
2. Estrada’s status
Alexander was salaried, did not punch a timeclock, at-
tended meetings with higher management, received 2 weeks
of paid vacation per year, was covered by a health insurance
plan, was not paid overtime, and had and exercised power
to hire, discipline, and assign work to the kill floor employ-
ees.
Neither Alexander nor Sikes, who also oversaw kill floor
employees, spoke or understood the Spanish language.
Estrada, who was bilingual, was utilized by Alexander and
Sikes to communicate their instructions and orders to kill
floor employees (most of the employees were not fluent in
and did not understand English, only Spanish).
Estrada was an experienced butcher, capable of performing
about 90 percent of the job functions on the kill floor and
spent about 90 percent of his time working as a butcher (he
and Franco filled in for employees who were either on au-
thorized or unauthorized absence from their regular assign-
ments and changed jobs as work demands altered during the
workday).
Each morning Gutierrez and Alexander conferred over
what work they expected to accomplish that day and which
employees would be assigned for its performance; their deci-
sions were communicated to Estrada, who in turn informed
the Spanish-speaking employees of their assignments for the
day. Work assignments were often changed, particularly after
the lunchbreak, by Gutierrez and/or Alexander, and the same
procedure was followed with respect to communicating the
changes to Spanish-speaking employees. Estrada trained new
employees in their job duties and kept the production lines
running smoothly and efficiently, exhorting employees to
work faster if and when the workflow slowed down. On oc-
casion, he substituted for Alexander during his absences from
the kill floor.
It was customary for casuals to assemble in or near the
plant at the start of the shift in the hope they might be of-
fered employment. When the workload indicated a need for
additional employees or the number of absentees warranted
the hire of temporaries, in view of the fact the casuals were
predominantly Spanish speakers Estrada interviewed the cas-
uals, determined which possessed the desired skills, and re-
ferred them to the Respondent’s secretary for hire.
Estrada was hourly paid, paid for overtime, punched a
timeclock, did not attend management meetings,10 did not
hire permanent employees,11 did not discipline employees,12
did not evaluate employee work performance,13 and did not
authorize overtime.
Little evidence was developed concerning the functions of
the other two leads, Franco and Banuelos, other than Gutier-
rez’ testimony one of Franco’s duties was to collect pay-
ments from employees for the use of luggers (coats) owned
by the Respondent and provided to employees on the kill
floor in the form of rentals, plus payments for knives pur-
chased by the employees from the Respondent for use in
their work and testimony Banuelos worked with a small
group doing cleanup after operations on the kill floor ceased
each day.
3. The beginning of Local 770’s organizational
campaign
The first change from Local 770’s 1987 attitude regarding
the organization of the Respondent’s employees occurred in
early 1990, when Local 770 Representative James Rodriguez,
1353J.M.A. HOLDINGS
14 As noted above, Local 770 represented Federal employees work-
ing within Respondent’s slaughterhouse.
15 According to Anguiano, they began to actively distribute and so-
licit in June.
16 As noted above, Franco collected rents for the luggers and sold
the knives from the Respondent’s stores.
17 A 25-cent general wage increase was placed in effect on June
3.
18 Par. 12.
19 Sikes, Alexander, and a few employees neither spoke nor under-
stood Spanish; Gutierrez, Manzzyni, and Salinas were fluent in
Spanish and English; the balance of the work force were fluent in
Spanish but limited in their ability to speak and understand English.
in the course of a conference with Federal President Phillip
Bauer,14 told Bauer Local 770 was going to try to organize
the Respondent’s employees and Local 770 Organizer Bennie
Puente and Respondent employee Rogelio Anguiano estab-
lished contact, began to meet, and Puente began supplying
union authorization cards to Anguiano for distribution to the
Respondent’s employees and solicitation of signatures there-
to.
During this period (early 1990), Anguiano recruited Re-
spondent employees Carlos Beltrano and Theodora Thornton
to aid him in distributing the cards and soliciting signatures
thereto.15
4. The Respondent’s awareness of the campaign
Puente met Anguiano during April and May outside the
plant. In late April or early May, Alexander observed
Puente’s car circling in and around the Respondent’s parking
lot and reported his observation to Sikes. Sikes went out to
the car (which had stopped) and asked Puente if he could
help him. Puente identified himself, gave Sikes his business
card, and stated he was there to meet with employees of the
Respondent. Sikes advised Kelly and Gutierrez of Puente’s
statement and identity.
5. The employee’s independent effort to secure
increased wages and benefits
Prior to the start of the May 30 workshift, a group of em-
ployees assembled outside the offices of Sikes and Gutierrez
shouting they wanted a wage increase. Sikes informed the
group Gutierrez was not in, suggested they select one or two
among their number to speak on their behalf, go to work,
and promised he and Gutierrez would meet with their rep-
resentative(s) when Gutierrez arrived. The employees ac-
quiesced, chose Julio Manzzyni and Rodolfo Salinas (who
were fluent in both Spanish and English, while most the em-
ployees were fluent only in Spanish) to present their de-
mands and elicit management response thereto, and went to
work.
When Gutierrez arrived at the plant, he, Sikes, Pena, and
Alexander met with Manzzyni and Salinas in Gutierrez’ of-
fice. The employee representatives stated the employees
wanted a $1 raise, health insurance for the employees and
their dependents, free knives, and free luggers.16 Gutierrez
responded the employees were going to receive a 25-cent in-
crease;17 the Respondent could not afford a $1 increase at
that time; the Respondent would have to look into and get
back to the employees with respect to health insurance, be-
cause it was contemplating giving employee coverage but not
dependent coverage; and that he would get back to the em-
ployees with respect to the luggers and knives. The employee
representatives stated 25 cents was not much. Gutierrez re-
plied it was all the Respondent could afford; recent plant im-
provements were costly; the Respondent had only been doing
business with Federal for a year and wasn’t making money;
if the Union came in, any increase above 25 cents would
have to be passed on to Federal, Federal was likely to cease
doing business with the Respondent rather than paying more
(securing confirmation from Salinas, who previously worked
for Federal, Federal ceased doing business with other slaugh-
terhouses when they raised their per-head charge) and if Fed-
eral did so, the Respondent probably would have to cease
operations. Manzzyni commented he thought things could be
worked out without the Union and the two employee rep-
resentatives departed.
Following their departure, the management representatives
discussed what had transpired and decided a meeting with all
the employees was advisable, to avoid any misunderstandings
among the employees concerning what employee demands
were made and what management responded.
6. The employee meeting and Gutierrez’ alleged
unlawful statements
Initially the complaint alleged the meeting was held in late
May or early June at the facility and that, in the course of
the meeting, either Sikes or Gutierrez made statements which
created the impression the Respondent was surveilling the
union activities of the employees and threatened employees
with plant closure, lower wages, and discharge if they se-
lected Local 770 as their bargaining representative.18
During the hearing, counsel for the General Counsel
amended paragraph 12 to strike Sikes’ name from the allega-
tion and to place the meeting in late June or early July rather
than late May or early June.
It was undisputed and I find Gutierrez alone addressed a
meeting of all the employees. It was also undisputed and I
find Gutierrez, who speaks both English and Spanish flu-
ently, addressed the assembled employees first in Spanish
and then in English.19
Sikes, Alexander, and employee Nunnie Gray testified
concerning Gutierrez’ remarks in English; Gutierrez,
Manzzyni, and Salinas testified concerning Gutierrez’ re-
marks in English and Spanish; and employees Anguiano, Ro-
berto Frias, Ramon Gonzales, and Jose Ocampo testified
concerning Gutierrez’ remarks in Spanish.
All 10 were in substantial agreement Gutierrez, while ad-
dressing the assembled employees in both Spanish and
English, essentially and correctly described the employees’
demands and his responses thereto during the conference be-
tween the management and employee representatives on May
30.
Sikes, Gutierrez, Alexander, Gray, Manzzyni, and Salinas
testified the meeting occurred in the men’s locker room in-
side the plant; that the meeting was conducted on May 30,
following the May 30 conference between the management
and employee representatives earlier described; and that man-
agement neither scheduled nor conducted any further or other
general employee meetings to discuss the employees’ de-
mands and management response thereto. The plant sec-
1354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Bandini was the name of the street on which the plant was lo-
cated.
21 It was established, and I find, the Respondent secured data from
the employees in June concerning the number and ages of their de-
pendents and related information for the purpose of soliciting bids
from insurance carriers for employees and dependent coverage; sub-
mitted the data to the Respondent’s insurance broker for compilation
of the data and submission to insurance carriers for bidding; and the
broker conveyed the bids received to the Respondent in mid-July.
22 Kelly and Ebright, who were unavailable at the time Sikes and
Gutierrez decided to and held the employee meeting following the
May 30 conference, instructed Sikes and Gutierrez to refrain from
conducting any further employees’ meeting without their authoriza-
tion and approval.
23 The 25-cent increase was effected June 3 and about the same
time Gutierrez instructed Franco to cease charging for the luggers
and to reduce the price of the knives by 50 percent.
retary, Emma Trujillo, also testified only one meeting oc-
curred.
Although Anguiano corroborated the testimony of the wit-
nesses just named that Gutierrez conducted a meeting of the
Respondent’s employees in the plant locker room at which
he made the statements outlined above, he claimed the meet-
ing was held in early June; claimed Gutierrez conducted a
second employee meeting in early July outside the plant at
which he stated: the insurance was too expensive and was
not going to be provided; if he saw anyone distributing or
signing union authorization cards, they would be fired; if the
employees were dissatisfied ‘‘Bandini’’;20 a slaughterhouse
in the area closed because of the Union and another was
about to close; and if the employees kept trying to secure
union representation, the Respondent’s plant would close.
In his direct testimony, Frias claimed Gutierrez conducted
a meeting in late May or early June in the parking lot at
which he stated the Respondent was going to lower the cost
of the knives, not charge for the luggers, would give an an-
swer in about a month about insurance, and was going to in-
crease wages by 25 cents per hour. Still on direct, he testi-
fied Gutierrez conducted a second meeting in the plant’s
locker room at the end of June at which Gutierrez stated
there wasn’t going to be any insurance; if the employees
were dissatisfied, they could leave; the Union was bad for
the Company; any employees seen distributing or signing
union cards would be fired; and if the employees continued
to seek union representation, the plant would close. On
cross-examination, however, he stated Gutierrez only con-
ducted one meeting and that was in early July.
Gonzales’ testimony followed that of Anguiano concerning
a first meeting with the employees allegedly in early June,
that it took place in the locker room within the plant, and
that Gutierrez made the statements at that meeting. Sikes, et
al. testified to but departed from Anguiano’s testimony con-
cerning an alleged second meeting, stating it also took place
at the locker room; that the meeting took place on June 15;
and that at the alleged second meeting Gutierrez told the em-
ployees he was going to lower the price of the knives, he
was not going to charge for luggers; and that Respondent
was negotiating about the insurance. Gonzales departed fur-
ther from the testimony of Anguiano and Frias in stating
Gutierrez conducted a third meeting in early July outside the
plant at which Gutierrez stated the Union was not good for
the employees; the Respondent could not afford a union; if
the employees were dissatisfied with that, ‘‘Bandini’’; if the
Union came in, the Respondent would close; and if he saw
anyone distributing or signing union cards, they would be
fired.
Ocampo’s testimony also followed that of Anguiano with
respect to the date and place of Gutierrez’ meeting with the
employees—in early June in the plant locker room—but de-
viated in adding that, after Gutierrez stated the employees
were going to receive a 25-cent-per-hour increase and that he
would get back to the employees with respect to the insur-
ance, Gutierrez stated the luggers were going to be free and
the price of the knives were going to be reduced by 50 per-
cent. He also claimed a second meeting occurred in early
July, but placed it outside the plant and stated Gutierrez lim-
ited his statements at the alleged second meeting to inform-
ing the employees the Respondent needed another month to
check out insurance companies and departed further from the
others in stating Gutierrez conducted a third employee meet-
ing in the same time period—early July—to state the Re-
spondent was not going to give any insurance; if they were
dissatisfied, ‘‘Bandini’’; he did not want to see anyone dis-
tributing or signing union cards; and if he observed any em-
ployee doing so, he would be fired.
The pretrial affidavits executed by Auguiano et al. make
no mention of the statements attributed by Anguiano, et al.
to Gutierrez at the alleged employee meetings subsequent to
the meeting all agree Gutierrez repeated what had transpired
at the May 30 conference between the employee representa-
tives and the management representatives and the above reci-
tation of the testimony of Anguiano, et al. is shot through
with glaring contradictions, inconsistent statements, and im-
probabilities.21
Sikes, Alexander, Manzzyni, Salinas, Gray, and Trujillo all
supported Gutierrez’ denial he conducted any employee
meetings after the meeting Gutierrez conducted following the
May 30 conference between the employee and management
representatives22 and thus Gutierrez’ denial he made the
statements attributed to him by Anguiano, Frias, Gonzales,
and Ocampo at any alleged subsequent meeting.
On the basis of the foregoing, I find Gutierrez conducted
one employee meeting; conducted it on May 30 at the plant
locker room; and confined his statements to: (1) an an-
nouncement the employees were going to receive a 25-cent
wage increase; (2) a promise to get back to the employees
with respect to their requests for employee and dependent
health insurance, free knives, and luggers; and (3) state-
ments: (a) if the employees secured union representation, any
increase above 25 cents would have to be passed on to Fed-
eral; (b) Federal would likely cease doing business with the
Respondent if the Respondent increased its per-head charges;
(c) if Federal did so, the Respondent probably would have
to cease operations; and (4) Gutierrez did not make the addi-
tional statements attributed to him by Anguiano, Frias,
Gonzales, and Ocampo at the May 30 or any later employee
meeting.
7. Acceleration of Local 770’s organizational campaign
Dissatisfied with the wage increase and benefits granted
the employees after the May 30 conference23 and the lack of
word concerning insurance coverage, during June and July
Anguiano, Beltrano, and Thornton actively pursued the se-
1355J.M.A. HOLDINGS
curing of signed cards from the Respondent’s employees au-
thorizing Local 770 to represent them for collective-bar-
gaining purposes, secured a substantial number of signed
cards, and turned them over to Local 770.
Local 770 Representative Rodriguez also approached Fed-
eral President Bauer to request Federal increase its per-head
payments to the Respondent so the Respondent could in-
crease its employees’ wages and benefits. He also solicited
Bauer’s help in securing Local 770’s recognition as the col-
lective-bargaining representative of the Respondent’s em-
ployees.
Bauer responded he could not afford to increase his per-
head payments and expressed willingness to act as a go-be-
tween or mediator between Local 770 and the Respondent,
but no more.
Bauer advised Kelly of Rodriguez’ request and his re-
sponses.
8. The alleged July 18 unlawful written statement
or notice
The complaint (par. 14(a)) alleged the Respondent violated
Section 8(a)(1) of the Act by distributing and posting a
memorandum to employees threatening the employees with
plant closure if they selected Local 770 as their bargaining
representative.
On July 17 and 18, Local 770 circulated among the Re-
spondent’s employees an invitation to attend a meeting at 6
p.m. on the latter date at a restaurant near the plant.
Kelly received a copy of the invitation and, after confer-
ring with Ebright and outside labor counsel, prepared the fol-
lowing statement:
NOTICE
AUTHORIZATION CARDS
We have been informed that the United Food and
Commercial Workers Union wants to organize the em-
ployees of JMA Holdings and gain representation (the
right to represent the employees in wage and benefit
negotiations with the company). It undoubtedly will ask
you to sign authorization cards.
We advise you to be very careful about signing any-
thing that you do not fully understand, such as author-
ization card or any other paper, including an attendance
list. Do not allow anyone to pressure you or force you
into signing anything, for this is a very serious matter.
Federal law, under the National Labor Relations Act,
protects your right to engage in or not to engage in
Union activity. You do not even have to talk to the
union.
You may be told that an authorization card does not
mean too much, that it just allows you to be informed.
Or that you will be put on a mailing list. Or that every-
one else has signed one. Or that it is not binding. Or
that you will have an election anyway. Or that it will
mean a wage increase. None of these statements are
true. The signing of an authorization card can mean
that you will be selecting the Union as your representa-
tive without having an election or any further input.
Read the card, or anything else that you are asked
to sign, carefully. It may make you part of the Union
and if the Union obtains a majority of these cards it can
demand recognition and, in some cases, it can force
itself upon you and the Company without an election
of all the employees.
We do not believe that the Union is in the best inter-
est of either JMA Holdings or its employees. As you
know, many meat plants have closed or are scheduled
to close in Southern California due to economic prob-
lems. We are trying to keep JMA Holdings in business
while working with our employees to improve wages
and benefits. We recently granted a general wage in-
crease and as we told you, we are getting quotes for a
health insurance program.
We hope you will ask the right questions and care-
fully consider all of the issues before making any deci-
sion or signing anything. [G.C. Exh. 4.]
Kelly had Gutierrez prepare the same statement in the
Spanish language and distribute it to all the employees as
they left work on July 18, prior to the Local 770 meeting.
9. The July 18 Local 770 meeting
The Local 770 meeting was held as scheduled and at-
tended by a substantial number of the Respondent’s employ-
ees. The meeting was chaired by Local 770 Director of Or-
ganizing Tom Clark, who was accompanied by Local 770
Representatives Puente, Elizabeth Pulido, Elizabeth Robin-
son, and Jesse Martel. Because Clark neither spoke nor un-
derstood Spanish, Pulido acted as his interpreter.
Clark secured from the employees their assurance they de-
sired Local 770 representation and explored their reasons
therefor. The employees recited: a desire for a $1 increase;
their opinion the 25-cent increase they received in June was
insufficient; their desire for health insurance coverage for
themselves and their dependents; a complaint the Respondent
told them it was considering such coverage and would get
back to them about it, but had not done so; and a complaint
they were constantly pressured to work faster. Clark advised
the employees Local 770 wanted to represent them; Local
770 was going to seek recognition as their representative
from the Respondent and to petition for an election; it would
take 4 to 6 weeks for the election; and that the Respondent
would probably try to scare them during the wait.
Anguiano responded the Respondent was already doing
that; the Respondent was saying if its costs increased, it
would have to pass them on to Federal; Federal was unlikely
to agree and might cease doing business with the Respond-
ent; and if it did, the Respondent might have to cease oper-
ations. Anguiano also stated he feared he and his coorga-
nizers would be fired during the wait and the employees
could not wait 4 to 6 weeks.
Clark stated the only alternative to the wait was strike ac-
tion and the employees began calling for that action.
One of the Local 770 representatives commented it was a
propitious time, because Federal had many cattle awaiting
slaughter.
Clark expressed reluctance to support a strike but yielded
when the employees demanded a strike vote.
A vote was conducted, passed overwhelmingly, and prep-
arations for a strike commencing the following day began.
1356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 A few more joined the strike later, and several returned to work.
25 This was the first time Rodriguez or any other representative of
Local 770 made any contact with a representative of the Respond-
ent’s management concerning the organization or representation of
the Respondent’s employees.
26 On cross-examination, however, Cabachuala testified Alexander
told her he did not think Thornton was soliciting employees to sign
cards.
27 Cabachuala testified she joined in the picketing of the plant
which commenced the morning of July 19.
28 It was undisputed the entire management team made strenuous
efforts to recruit a sufficient work force to maintain operations when
the strike commenced, including efforts to persuade all the employ-
ees to return to work.
29 Ocampo testified the alleged final employee meeting conducted
by Gutierrez in the parking lot occurred between July 6–9.
30 Both Gonzales and Ocampo testified Alexander spoke in
English; Gonzales conceded he understood and spoke English, and
gave the testimony just recited in English.
10. The commencement of the strike and Local
770’s demand
Prior to the start of the July 19 workshift, Local 770 began
picketing the plant. Forty-four employees went on strike and
manned the picket lines.24 The Respondent’s managers began
recruiting replacements for the strikers and continued oper-
ations with nonstriking employees, recruited replacements,
and returnees.
Rodriguez contacted Kelly during the morning of July 19
and presented Kelly with a written request addressed to
Androli and signed by Local 770 President Ricardo F. Icaza
stating a majority of the Respondent’s employees within an
appropriate unit signed cards authorizing Local 770 to rep-
resent them for bargaining; demanding recognition as the ex-
clusive representative of the unit employees; and offering to
prove Local 770’s majority representative status through a
card check conducted by an agreed-on impartial third party.
Kelly refused to recognize Local 770 without Board cer-
tification of a majority of the Respondent’s employees within
an appropriate unit voted in a Board-conducted election for
Local 770 representation.25
11. The alleged unlawful Alexander statements
The complaint alleged on July 18 Alexander interrogated
employees at the facility about their and other employees’
union activities and sympathies, gave employees the impres-
sion the Respondent was surveilling employee union activi-
ties, and threatened employees with plant closure if the em-
ployees selected Local 770 as their bargaining representative
(pars. 13(a), (b), and (c)). The complaint also alleged on July
20 Alexander misrepresented to employees it was unlawful
for them to engage in a strike and again threatened employ-
ees with plant closure if they selected Local 770 as their bar-
gaining representative (pars. 15(a) and (b)).
Employee Valbina Cabachuala testified Alexander tele-
phoned her the evening of July 18 and asked her if her
brother-in-law (Everardo Cortez) attended the July 18 Local
770 meeting; she replied she did not know; Alexander said
he was sure Cortez was there, ‘‘Albino’’ told him so; the
employees were fools, if the Union came in, wages would
be lowered, the plant might close and asked her if she signed
a union card; she replied no and asked why he wanted to
know; and Alexander responded the Respondent was going
to fire anyone who signed a union card, Thornton was trying
to persuade employees to sign and was going to be fired.26
Cabachuala further testified Alexander called her again on
July 20, the day after the strike began and asked her when
she was going to return to work; she replied when the rest
of the employees returned to work; Alexander stated the
strike was illegal, the employees were first supposed to have
an election; if the employees did not return to work on July
21, they would be let go; and if they wanted to return to
work later, there wouldn’t be any jobs available.
On questioning by counsel for Local 770 following the
completion of the General Counsel’s direct examination,
Cabachuala further testified on three or four occasions on the
plant floor during the week prior to the strike, Alexander
asked her who signed union authorization cards; she said she
did not know; and Alexander stated he knew who they were
and, if they continued, the plant would close.
Alexander denied he telephoned Cabachuala on July 18
and made the remarks attributed to him; denied he ques-
tioned Cabachuala at any time prior to the strike concerning
the identity of any union card signers and expressing any
awareness of who signed cards; stated his only communica-
tions with Cabachuala around July 18–20 occurred on July
19 when he encountered Cabachuala at the plant office when
he asked her if she was going to come to work, to which
she replied negatively, saying she was going to join the
strike,27 and a telephone conversation on the same evening
(July 19), when he telephoned Cabachuala and asked her to
return to work the following day; she refused, stating she
supported the strike; and he told her she was foolish to give
up her job, it might not be available later.
Cabachuala’s two pretrial affidavits made no mention of
any July conversation with Alexander and did not contain
reference to any questioning or comments by Alexander dur-
ing the week prior to the strike; she contradicted herself with
respect to Alexander’s alleged comments concerning Thorn-
ton; and she was an unconvincing witness, while Alexander’s
testimony was clear, candid, and convincing.
I credit his testimony and find Alexander spoke to
Cabachuala at the plant office and by telephone on July 19,
after the strike commenced, and limited his statements to re-
quests she come to work and a comment she was foolish to
give up her job, because it might not be available later,28 and
that he did not make the other statements attributed to him
by Cabachuala on July 18 and 20 and during the week pre-
ceding the strike.
Following the completion of their responses to questions
addressed to them by the General Counsel, counsel for Local
770 elicited from Gonzales and Ocampo testimony to the ef-
fect on two occasions prior to the strike they encountered Al-
exander in the parking lot outside the plant, but contradicted
each other on what transpired thereafter.
Gonzales testified Alexander spoke in English during the
first encounter; that the encounter took place in the parking
lot 2 or 3 days after the alleged last meeting Gutierrez con-
ducted in the parking lot;29 that he was on a break and in
Ocampo’s company; and that Alexander stated: the Union is
no good for you; he asked why not; Alexander replied you
would pay lots of money every month for the Union; that
was all he heard Alexander say; and he then returned to
work.30
1357J.M.A. HOLDINGS
31 Though earlier stating they had both finished work.
32 Gonzales did not confirm he gave a running translation of any
of Alexander’s comments during the alleged first meeting.
33 He later placed it on July 10.
34 In English, no more work.
Ocampo initially testified through an interpreter, stating he
was fluent in Spanish but had little understanding of and
ability to speak English. He, like Gonzales, testified the two
encountered Alexander in the parking lot 2 or 3 days after
attending an alleged meeting of the employees and Gutierrez
in the parking lot between July 6–9; that Gonzales, who was
on a break,31 was also present; but departed diametrically
from the balance of Gonzales’ testimony to what Alexander
allegedly said, saying Alexander asked what the two thought
about the Union; asked if the two were going to sign union
cards; when they replied no, stated the Union was not good
for the Company; the only thing the Union wanted was their
money; the Union was not going to give them any benefits;
they should continue as is, because with the Union, the Com-
pany might close; and that the Company could fire them if
they were seen signing a union card.
Ocampo sought to explain his ability to testify concerning
what Alexander said in English despite his proclaimed inabil-
ity to understand English by stating Gonzales understood and
could speak English and translated to him what Alexander
was saying.32
Gonzales testified the two encountered Alexander a second
time in the parking lot; the encounter took place during the
week following the first meeting;33 Estrada was also present;
Alexander spoke in English; and Alexander told them the
Union was no good for them; asked how much money they
made; he replied $7.75 per hour; Alexander stated he had it
on paper in a June contract with the Union they would lose
money, receive between $6–$8 per hour; asked Gonzales if
he signed a union card and he replied no; asked Ocampo if
he signed a union card, Ocampo asked him what Alexander
was asking, he translated Alexander’s question to Ocampo in
Spanish, and Ocampo replied no; Alexander stated, ‘‘all
right, you’re my main man’’; Alexander stated if he caught
anyone signing a union card, ‘‘Bandini, no mas trabajo’’;34
if he saw anyone signing a union card, ‘‘Bandini’’; and that
Estrada then, in Spanish, stated the Company was going to
fire anyone caught distributing union cards.
Ocampo placed the second alleged meeting with Alex-
ander in the parking lot on July 15 or 16; his testimony con-
formed to that of Gonzales in that he testified Estrada was
present at the alleged second meeting and that Alexander
asked the two again if they had signed union cards but al-
leged (despite his alleged inability to understand and speak
English) he responded they had not signed to avoid having
any problem with Alexander and Gonzales responded by
stating how could Alexander believe they were going to sign,
they were working for him; and Alexander told them to be
careful about signing because if they were seen distributing
or signing cards, they could be fired.
Ocampo again sought to explain his ability to testify con-
cerning Alexander’s questions and statements by stating
Estrada translated for him.
Gonzales conceded he discussed what Ocampo testified to
following the completion of Ocampo’s testimony (Ocampo
concluded in the afternoon and Gonzales testified the fol-
lowing day) and that their alleged conversations with Alex-
ander did not appear in their pretrial statements. Ocampo
claimed he never related the alleged Alexander conversations
to any NLRB or Local 770 representative prior to testifying.
Alexander confirmed an encounter with Estrada, Gonzales,
and Ocampo in the parking lot in July. He stated while he
was in his car, he saw the three in the parking lot, with
Estrada and Ocampo awaiting Gonzales’ completion of his
workshift (because the three were in a carpool) and that
when Gonzales asked him what he thought about the Union,
he stated it was his opinion if the Union came in, they would
have to pay union dues, Shamrock under its contract with the
union was paying $6.80 per hour while they were making
$7.50 to $8 per hour, so they would make less money than
they were currently earning, and pointed out Shamrock and
JMA were the only slaughterhouses left in the area. He stat-
ed he could not recall any second encounter, and denied at
any time he stated the plant would close if the Union came
in; if he or management saw them distributing or signing
cards, they would be fired; asked them if they signed union
cards; stated he would fire anyone he caught signing a union
card, or that it would be ‘‘Bandini’’ if he did; stated he was
unfamiliar with the phrase ‘‘no mas trabajo’’ and did not
know what it meant in English; and denied he said or used
the phrase ‘‘all right, my main man,’’ stating the employees
used that phrase in referring to him. He also stated he used
the word ‘‘Bandini’’ in the plant regularly, with respect to
what would happen to employees if their unsatisfactory work
performance did not improve.
Alexander’s testimony that the two told him they were
employed by Local 770 as paid pickets was uncontradicted
and is credited.
In view of the contradictions in the testimony of Gonzales
and Ocampo, the failure of any supporting evidence, and se-
vere doubt of their credibility as well as their uncertain de-
meanor while testifying, as contrasted with Alexander’s firm
and convincing testimony, I find Alexander did not make the
statements and ask the questions attributed to him by
Gonzales and Ocampo other than the remarks attributed to
him by Gonzales at their first encounter and Alexander’s cor-
roboration thereof.
12. The alleged unlawful July 20 notice to strikers
The complaint (par. 14(b)) alleged the Respondent violated
Section 8(a)(1) of the Act by a July 20 distribution to strik-
ing employees of a notice to the effect they would be offered
reinstatement to future job openings in the event they uncon-
ditionally offered to return to work.
It is undisputed on July 20 Ebright, after consultation with
outside labor counsel, prepared the following document, had
it translated into Spanish, and caused its distribution to strik-
ing employees when they came to the plant to pick up their
paychecks for their work the preceding week. The document
read as follows:
July 20, 1990
Dear Employee:
As you are aware the United Food and Commercial
Workers Union Local 770 is attempting to organize
you, the employees of our company. The Union has de-
manded that the Company recognize the Union as the
representative of our employees without having the nor-
1358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mal election where all employees may use a secret bal-
lot to make their choice.
The proper procedure in situations such as this is for
the employees to have an election, utilizing a secret
ballot and supervised by the National Labor Relations
Board. If our employees voted for Union representation
in such an election, we would recognize the Union and
negotiate with them. If the Union truly represents a ma-
jority of our employees, they would call for such an
election. In our response to the Union on Thursday we
stated ‘‘that the best method for determining employ-
ees’ desires is through the election process of the Na-
tional Labor Relations Board.’’
Since the Union has formed a recognition picket line
which many of our employees have failed to cross, you
should know the following:
1. Federal law protects the rights of employees to
strike or not to strike.
2. Employees who refuse to cross a picket line are
not paid for the time they are not working.
3. Employees who refuse to cross this type of
picket line are not entitled to unemployment com-
pensation.
4. In a strike of this nature, the Employer has the
right to hire permanent replacements to fill the posi-
tions of employees who strike or refuse to cross a
picket line. At the end of the strike, the permanent
replacements have a right to remain in the job posi-
tions of the striking employees. The only right that
the striking employees would have, if they have been
replaced, is to be put on a preferential hiring list for
future job openings.
It is JMA Holdings’ intent to continue working. We
are hiring employees to fill the jobs of the striking em-
ployees. We are placing advertisements in the news-
papers for replacement employees. We expect to be
back to full production within the next few days. We
urge you to return to work. Returning to work does not
prevent the Union from having a normal recognition
election. We believe that it is in your best interest to
return to work. [G.C. Exh. 6.]
13. The July 24 notices to strikers and their
replacements
The complaint (par. 14(c)) alleged the Respondent violated
Section 8(a)(1) of the Act by distributing to employees who
made unconditional offers to return to work a memorandum
stating they would be offered reinstatement to future job
openings.
It is undisputed on July 23 Ebright, again after consulta-
tion with outside labor counsel, prepared the following docu-
ment, had it translated into Spanish, and caused its posting
(on the fence adjacent to the gate) and distribution to striking
employees on July 24. The document read as follows:
NOTICE
Date: July 24, 1990
To: All Employees Engaged in the Present Work
Stoppage
As we previously informed you, JMA Holdings has
been hiring permanent replacements to perform the
work of those of you who have been engaged in a work
stoppage. This process is continuing and we have filled
most of the job positions.
There are still some job positions that have not been
filled. Any employee who has the required job skill for
those open positions may return to work. Once all of
the available jobs have been filled, all employees who
have not returned to work will be put on a preferential
hiring list and will be eligible to return to work only
when opening exists. [G.C. Exh. 8.]
On the same date (July 23), Ebright prepared and caused
the July 24 posting and distribution of the following docu-
ment (in Spanish and English) to employees hired as replace-
ments for the strikers during the strike:
INTEROFFICE MEMO
Date: July 24, 1990
To: All Recently Hired Employees
Subject: Permanent Employment
All employees who have been hired during the cur-
rent work stoppage are being made permanent employ-
ees. All such employees will be required to pass the
company’s pre-employment physical, which includes
drug screen, and to complete all other parts of the nor-
mal hiring process. Any employee who fails to pass the
physical will be terminated. The physical will be sched-
uled over the next few weeks as the normal work
schedule permits.
All permanent employment by the Company is ‘‘AT
WILL,’’ which means that the Company reserves the
right to terminate any employee for any reason at any
time. [G.C. Exh. 7.]
Consistently during the strike and pursuant to manage-
ment’s instructions, Gutierrez, the leadman, and Trujillo as-
sured the employees hired to replace the strikers they were
hired as permanent employees, replacing the strikers; the July
24 notice published, posted, and distributed to both the strik-
ers and to the replacements prior to Rodriguez’ July 24 ad-
vice to Kelly the strikers wished to return to work, formally
publicized that policy.
14. The offers to return to work
Subsequent to the July 24 posting and distribution of the
July 24 notices described above, Rodriguez telephoned Kelly,
stated he was speaking on behalf of the strikers, and stated
the strikers wanted to return to work. Kelly responded the
Respondent did not recognize Local 770 as the representative
of its employees; permanent replacements had been hired for
the strikers and the Respondent was willing to place strikers
who wished to return to work on a preferential hiring list.
On July 25, Local 770 circulated a petition among the
strikers wherein, in English and Spanish, the signatories un-
conditionally offered to return to work. The petition was
signed by 42 striking employees.
The petition was presented to Kelly.
Following its presentation, Gutierrez and Pena set up ta-
bles outside the plant and, as strikers approached, tendered
any wages due to each striker as he or she approached and
1359J.M.A. HOLDINGS
35 Auto Workers v. NLRB, 834 F.2d 816 (9th Cir. 1987); Benjamin
Coal Co., 294 NLRB 572 (1989); C-Line Express, 292 NLRB 638
(1989); Hoyt Water Heater, 282 NLRB 1348 (1987).
36 Neither the General Counsel nor Local 770 advanced any argu-
ment in their posthearing briefs stating what language of the notice
they relied on as supporting the complaint allegation.
had such striker list his or her name and address for place-
ment on a preferential recall list.
15. Reinstatements and terminations following the strike
Prior to the strike, the Respondent employed approxi-
mately 80 production and maintenance employees. Approxi-
mately 44 went on strike on July 19, a few more joined the
strike prior to its July 25 cessation, and several (about 9)
strikers returned to work prior to July 25. During the strike,
the Respondent hired 39 new employees as striker replace-
ments. On July 26, three strikers were recalled; on July 27,
another striker was recalled; on July 29, one employee termi-
nated; on July 30, two strikers were recalled; on August 8,
one employee terminated; on August 12, four employees ter-
minated; on August 26, two employees terminated; one strik-
er was recalled on an undetermined date in August; one em-
ployee terminated on September 2; one employee terminated
on September 9; and one striker was recalled on September
12.
Between the July 25 strike cessation and the September 23
plant closure, the Respondent, in accordance with its pre-
vious practice, on August 13 hired five casuals for that day,
replacing sick or absent employees, and employed a sixth
casual for 2 days, August 13 and 14, for the same purpose.
Between July 25 and September 23 (other than the em-
ployment of casuals just noted) all additions to the work
force were accomplished by recalling strikers from the pref-
erential recall list, on the dates listed above.
16. Plant closure
On September 20 Federal informed the Respondent it
couldn’t continue in business and would cease supplying cat-
tle for slaughter after the following day. Federal ceased oper-
ations at the Respondent’s plant and at another location on
September 21. The Respondent, with no customers for its
slaughtering operations, laid off its entire work force the next
day. The Respondent has not resumed operations since.
B. Analysis and Conclusions
1. Estrada
Estrada was hourly paid, punched a timeclock, was paid
overtime, and spent over 90 percent of his time butchering
cattle on the kill floor, in a variety of jobs, due to his
versatility and ability.
Alexander, by contrast, was salaried, did not punch a time-
clock, received health insurance coverage (which Estrada did
not receive), and did not perform any production work.
Estrada was classified as a leadman, trained new employ-
ees, exhorted employees to work faster and more efficiently
in order to maintain a desirable flow of production, and
transmitted Alexander’s directions concerning employee
work assignments, transfers, etc., to the predominantly Span-
ish-speaking work force, on occasion substituted for Alex-
ander during the latter’s absence, and screened Spanish-
speaking job applicants for employment as casual labor.
Estrada did not discipline employees and any rec-
ommendations for discipline he made were reviewed by Al-
exander and/or Gutierrez, who made the final decision as to
whether to discipline and what discipline to impose. He did
not evaluate the employees’ work performance, and did not
authorize time off or overtime.
On these facts, I conclude Estrada was not a supervisor of
the Respondent acting on its behalf within the meaning of
Section 2 of the Act, nor an agent of the Respondent author-
ized to act on its behalf other than in transmitting orders and
directions issued by Alexander or Gutierrez to Spanish-
speaking employees.
2. The alleged Gutierrez violations
Inasmuch as I have entered findings at the sole employee
meetings Gutierrez conducted at the facility on May 30, he
did not make any statements which created the impression
the Respondent was surveilling the union activities of its em-
ployees or threatened employees with lower wages and dis-
charge if they selected Local 770 as their bargaining rep-
resentative, I conclude the Respondent did not violate the
Act as alleged in paragraphs 12(a) and (b) of the complaint.
The complaint also alleges, however, in paragraph 12(b),
Gutierrez at the employee meeting violated Section 8(a)(1) of
the Act by threatening employees with plant closure if they
selected Local 770 as their bargaining representative.
This allegation is based on Gutierrez’ statement, while
conducting the May 30 meeting, if the employees selected
Local 770 as their bargaining representative in the belief
Local 770 would secure a wage increase for them exceeding
the 25-cent increase they were going to receive and Local
770 on their behalf insisted on a larger increase, the Re-
spondent would have to pass on the resulting increased cost
to Federal, it was unlikely Federal would agree to increase
its per-head payments to Respondent for custom-slaughtering
Federal’s cattle, Federal might withdraw its business, and in
that case the Respondent would probably have to cease oper-
ations.
Gutierrez’ comments were accurate predictions of what
could and possibly would occur, for the employees voiced
their dissatisfaction over the size of the June increase to
Gutierrez (through Manzzyni), Rodriguez pressed Bauer to
increase his per-head payments so the employees’ wages
could be increased, and Federal, like many of its prede-
cessors, was forced to cease its operations even without an
increase in its per-head payments.
Such predictions, based on facts similar to those developed
in this case, have been held nonviolative of the Act.35
I therefore conclude by Gutierrez’ May 30 remarks recited
above, the Respondent did not violate the Act.
3. The alleged unlawful July 18 notice
The complaint alleged the July 18 notice distributed to the
employees by the Respondent violated Section 8(a)(1) of the
Act by threatening the employees with plant closure if they
selected Local 770 as their bargaining representative.
Apparently36 this allegation is founded on the following
statements contained in the notice:
1360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As you know, many meat plants have closed or are
scheduled to close in Southern California due to eco-
nomic problems. We are trying to keep JMA Holdings
in business while working with our employees to im-
prove wages and benefits.
It was undisputed most slaughterhouses in the area closed
prior to July due to economic problems, leaving only JMA
and Shamrock still in business. The notice contained no
threat JMA was contemplating plant closure.
I therefore conclude the Respondent did not violate the
Act by distributing this notice to the employees.
4. The alleged Alexander violations
The complaint alleged the Respondent violated Section
8(a)(1) of the Act by statements Cabachuala, Gonzales, and
Ocampo attributed to Alexander on July 18 and 20 (as well
as additional statements attributed to Alexander by the three
on other dates in July).
I have entered findings Alexander did not utter the state-
ments attributed to him by the three.
I therefore conclude the Respondent did not commit the
acts alleged in paragraphs 13(a), (b), and (c) and 15(a) and
(b) of the complaint.
5. Characterization of the strike
I conclude the strike was economic. At the July 18 meet-
ing between Local 770 representatives and the employees,
Clark was reluctantly forced to accede to the assembled em-
ployees’ desire to go on strike immediately rather than await
the outcome of a Board-conducted election after the employ-
ees expressed their dissatisfaction over the concessions the
Respondent granted following their independent effort to se-
cure wage and benefit improvements and it was noted both
Federal and the Respondent were vulnerable at that time (due
to the substantial number of Federal’s cattle awaiting proc-
essing). Although Anguiano’s expressed fear he and his co-
organizers among the employees might be fired if the em-
ployees awaited an election supported his call for an imme-
diate strike, his emotional appeal was not based on evidence
any such threat was addressed to any of the three by the Re-
spondent.
Inasmuch as I have concluded above the Respondent did
not commit the acts alleged as violative of Section 8(a)(1)
of the Act, I further conclude the Respondent did not by any
of its actions cause or prolong the strike.
6. The alleged unlawful July 20 and 24 notices
The complaint alleged the Respondent violated Section
8(a)(1) of the Act by distributing to its striking employees
a notice they would only be considered for future job open-
ings in the event they made unconditional offers to return to
work.
The General Counsel relies on the following language of
the letter addressed and delivered to its striking employees
by the Respondent on July 20 as basis for the allegation:
4. [T]he Employer has the right to hire permanent re-
placements to fill the positions of employees who strike
or refuse to cross a picket line. At the end of the strike,
the permanent replacements have a right to remain in
the job positions of the striking employees. The only
right that the striking employees would have, if they
have been replaced, is to be put on a preferential hir-
ing list for future job openings. [Emphasis added.]
Had the strike been an unfair labor practice strike, the no-
tice was erroneous, for an unfair labor practice striker has the
right, on his unconditional offer to return to work, to imme-
diate reinstatement to his former job, even if this requires the
termination of the employee hired to replace him during the
strike.
The General Counsel contends, however, presuming the
strike was an economic strike, the notice is still erroneous,
because it states the striker who unconditionally applies for
reinstatement only has a right to reinstatement to fill a job
which becomes available thereafter, failing to state he also
has a right to reinstatement to fill a job which is available
at the time he makes his offer, i.e., an existing job vacancy.
Clearly the Respondent at all times, including the time at
which it prepared and distributed the notice, considered the
strike to be economic and, reading the entire notice, urged
the striking employees to return to work before their replace-
ments were hired with the correct advice that, once a full
work force had been recruited (as it had at that time), an
offer to return to work would result in reinstatement there-
after as future job vacancies occurred.
I therefore conclude the Respondent did not violate the
Act by correctly advising the strikers their reinstatement fol-
lowing their unconditional offers to return to work would
occur as and when vacancies thereafter developed.
The complaint also alleged the Respondent violated Sec-
tion 8(a)(1) of the Act by again distributing to its striking
employees a notice those strikers who made unconditional
offers to return to work would be reinstated to future job
openings.
The notice in question stated:
There are still some job positions that have not been
filled. Any employee who has the required job skill for
those open positions may return to work. Once all the
available jobs have been filled, all employees who have
not returned to work will be put on a preferential hir-
ing list and will be eligible to return to work only when
a job opening exists. [Emphasis added.]
The General Counsel advances the contentions set out in
the preceding section as the basis for a conclusion by publi-
cation and distribution of the notice the Respondent violated
the Act, and for the reasons stated above, I reach the same
conclusion set out above.
7. The alleged unlawful failure or refusal to reinstate
Contending strikers had not been permanently replaced at
the time they tendered their unconditional offers to return to
work, the complaint alleges the Respondent violated the Act
by failing to reinstate them on receipt of their offers.
Prior to Rodriguez’ contact with Kelly on July 24 to
transmit the message the employees wanted to return to
work, the Respondent, both verbally and by a written notice
addressed to both the strikers and the replacements, consist-
ently advised both strikers and their replacements the latter
were hired as permanent replacements for the former.
1361J.M.A. HOLDINGS
37 Albeit at a lower level than the level of employment prior to
the strike.
38 Laidlaw Corp., 171 NLRB 1366 (1968), affd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970); Belknap v. Hale, 463
U.S. 491 (1983); Solar Turbines, 302 NLRB 14 (1991).
39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
When Rodriguez contacted Kelly on July to transmit the
foregoing message, Kelly advised Rodriguez the Respondent
was fully staffed37 and the strikers would be offered rein-
statement as and when vacancies in the existing work force
occurred, and filled all subsequent vacancies with strikers
from the preferential recall list prepared on the Respondent’s
receipt of pertinent information concerning the identity, ad-
dresses, and telephone numbers of the strikers wishing to re-
turn to work (other than the 1- to 2-day fill-ins with casuals
for employees sick or absent, in accordance with past prac-
tice).
The recall procedures followed by the Respondent after
the strike ended fully complied with the mandates of the Act.
I therefore conclude the Respondent did not violate the
Act by following those procedures.38
CONCLUSIONS OF LAW
1. At all pertinent times the Respondent was an employer
engaged in commerce in a business affecting commerce and
Local 770 was a labor organization within the meaning of
Section 2 of the Act.
2. At all pertinent times Kelly, Ebright, Sikes, Gutierrez,
and Alexander were supervisors and agents of the Respond-
ent acting on its behalf within the meaning of Section 2 of
the Act.
3. At all pertinent times Estrada was not a supervisor and
agent of the Respondent acting on its behalf within the
meaning of Section 2 of the Act.
4. The Respondent did not violate Section 8(a)(1) of the
Act by Gutierrez’ creating any impression among employees
the Respondent was surveilling the union activities of its em-
ployees or threatening employees with plant closure, lower
wages, and discharge if they selected Local 770 as their bar-
gaining representative.
5. The Respondent did not violate Section 8(a)(1) of the
Act by any Alexander interrogation of employees concerning
their union membership, activities, and sympathies or the
union membership, activities, and sympathies of other em-
ployees or by creating any impression among employees the
Respondent was surveilling the union activities of employees
or by threatening employees with plant closure if they se-
lected Local 770 as their bargaining representative or by mis-
representing to employees it was unlawful for them to en-
gage in a strike.
6. From July 19 to 24 employees of the Respondent en-
gaged in an economic strike.
7. During the strike, the Respondent hired permanent re-
placements for strikers who had gone and remained on strike
and notified the replacement employees and the strikers that
the replacements were permanent employees and the Re-
spondent was fully staffed with employees who had not gone
on strike, abandoned the strike, and returned to work or hired
to replace strikers.
8. On its receipt of unconditional offers to return to work
from the remaining strikers, the Respondent placed their
names on a preferential recall list.
9. The Respondent ceased operations on September 22.
10. All staffing between the time the Respondent received
the remaining strikers’ unconditional offers to return to work
and the time the Respondent ceased operations were accom-
plished by recalling strikers on the recall list.
11. The Respondent did not violate Section 8(a)(1) and (3)
of the Act by failing to recall strikers following its receipt
of their unconditional offers to return to work other than
through its recalls from the recall list.
12. The Respondent did not otherwise violate the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended39
ORDER
The complaint is dismissed.