Lardo Packing Co.

National Labor Relations Board - Board Decisions

Mar 19, 1979

241 N.L.R.B. 184 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laredo Packing Company and Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local No. 171, affiliated with Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Cases 23-CA-6444, 23-CA-6520, 23-
CA-6762, and 23-CA-6797
March 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 12, 1978, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs, and
Respondent filed an answering brief to the General
Counsel's exceptions.
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, as modified herein.
In adopting the Decision of the Administrative
Law Judge, we find that Respondent violated Section
8(a)(1), (3), (4), and (5) of the Act during and subse-
quent to a union organizing campaign at its plant, as
a result of which its production and truckdriver em-
ployees selected the Union as their bargaining repre-
sentative. As detailed in the attached Administrative
Law Judge's Decision, Respondent discriminatorily
discharged 15 of its employees and reduced the hours
of another; unilaterally granted wage increases dur-
I We find without merit Respondent's allegation of bias and prejudice on
the part of the Administrative Law Judge. Upon our full consideration of the
record and the Administrative Law Judge's Decision, we perceive no evi-
dence that the Administrative Law Judge prejudged the case. made prejudi-
cial rulings, or demonstrated bias against Respondent in his analysis or dis-
cussion of the evidence. Furthermore, it is the Board's established policy not
to overrule an Administrative Law Judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
We note, however, that the Administrative Law Judge made certain inad-
vertent errors which do not affect his Conclusions of Law. In Sec. B(2) of his
Decision, certain references to employee Aguilar properly were in reference
to employee Mendoza. In addition, the record reveals that the Molina men-
tioned in sec. F should have been identified as Francisco Molina. Finally,
testimony indicates that fn. 30 of his Decision should read that Mario
Moncivais was hired in 1969, not 1975.
We further note that the Administrative Law Judge inadvertently omitted
Ignacio Santos' name from among those employees who are entitled to im-
mediate and full reinstatement, enumerated in par. 2(a) of his recommended
Order. We shall include it.
ing negotiations although no impasse had been
reached;2 and on numerous occasions interrogated
and threatened employees regarding their union ac-
tivity and that of others, threatened to close the plant
if employees supported the Union, prohibited them
from wearing union insignia, and created the impres-
sion of surveillance of their union activities. We also
adopt the Administrative Law Judge's dismissals of
those allegations regarding the discharge of Juan
Aguilar, increased workloads and reduced hours for
certain drivers, and the alleged unilateral modifica-
tion of the contractual seniority provision.3
In the underlying Decision, the Administrative
Law Judge found, inter alia, that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging a
group of eight named truckdrivers in April or May
1977. While we agree, for the reasons set forth in the
Administrative Law Judge's Decision, that Respon-
dent's discharge of these truckdrivers was discrimina-
tory, a close examination of the record reveals addi-
tional factors lending further support for the
conclusion reached by the Administrative Law Judge.
As was detailed by the Administrative Law Judge,
each of the eight terminated drivers had previously
engaged in union activity, including attending union
meetings and signing union authorization cards. Sev-
eral had also visited the homes of other employees,
soliciting them to sign authorization cards. That Re-
spondent became aware of this activity is amply re-
vealed by testimony relating to Armando Garcia, one
of Respondent's supervisors with authority over the
truckdrivers. During the election campaign he inter-
rogated several drivers with respect to their union ac-
tivities and that of others. During one interrogation
he specifically requested information from driver Os-
car Martinez regarding the activities of two drivers
who were subsequently included in the group dis-
charged. At the time, he offered the routes of these
two drivers under suspicion to Martinez. Further-
more, during the interrogation of another driver,
Jaime Galvan, Garcia stated that he had heard the
truckdrivers were responsible for bringing in the
Union. The testimony of Martinez indicated that
Garcia continued to seek such information at least as
late as April 1977.
Garcia having acquired such knowledge of union
2 In adopting the finding that Respondent unilaterally granted a wage
increase in violation of Sec. 8(aXl) and (5) of the Act, we shall modify the
Administrative Law Jdge's recommended Order to provide that Respon-
dent shall not be authorized or required by our Order to withdraw or elimi-
nate any wage increase presently enjoyed by Respondent's employees.
In adopting the Administrative Law Judge's dismissal of the alleged uni-
lateral modification of the seniority provision, we do not rely on the rationale
in fn. 47 of his Decision, as the references made therein were with regard to
his findings concerning allegations of discriminatory activity and therefore
entailed considerations immaterial to an alleged unilateral modification of a
contractual term.
241 NLRB No. 24
184
LAREDO PACKING COMPANY
activity, his conspicuous and repeated expression of
animus toward the Union is especially significant in
view of his pivotal role in the management of Re-
spondent's operations. Far from being a low-level su-
pervisor in limited contact with those who establish
policy, Garcia's authority was second only to that of
the three Salinas brothers who were the executive of-
ficers in control of the enterprise. At the time of the
events herein, he was the sales manager, was in
charge of all the supervisors and truckdrivers, and
could hire and fire all personnel. In fulfilling such
duties, he involved himself in repeated instances of
discriminatory misconduct. He discriminatorily dis-
charged Rodrigo Gaona, a production employee. He
threatened to fire maintenance employee Manuel Oli-
vares, whose hours were subsequently discriminator-
ily reduced. He told Ignacio Santos, another discrim-
inatee, that there was no work for him because he was
not dependable, which reason is found to be pre-
textual. Subsequent to the election, he told truck-
driver Mario Moncivais early in April that, because
of the Union, he was going to fire all the Moncivaises 4
along with the truckdrivers. On April 17, Garcia re-
peated this threat when he told Oscar Martinez, upon
learning that Martinez had attended a union meeting,
that Martinez was now on his "list" with the other
truckdrivers and that, if there were any changes, he
should not get his hopes too high. On the same day he
accused truckdriver Macias of pushing the rest of the
truckdrivers to join the Union, and said that he
should get himself straight or be faced with some
trouble.
Significantly, Garcia's animus toward the drivers
who supported the Union was not limited to the pe-
riod prior to the discharge of these eight at the end of
April 1977. After truckdriver Galvan was terminated,
he was told by Garcia, "That's what you get for going
with the union people." In view of Garcia's position
with Respondent we cannot conclude that this admis-
sion of discriminatory motive was unrelated to Re-
spondent's decision to terminate the drivers.
In view of the above, the Administrative Law
Judge correctly found that absent such antiunion mo-
tivation, Respondent would not have discharged
these drivers so promptly after receiving the April 26
letter from its insurance agent announcing the exclu-
sion of these drivers from insurance coverage without,
at the very least, having taken some further action to
retain them. Out of a complement of 18-20 drivers,
Respondent was faced with a sudden announcement
that approximately half of them would no longer be
insured. The evidence reveals that, upon receipt of
the letter, Roberto Salinas immediately told Garcia to
' The record reveals that at the time there were five related Moncivaises
employed by Respondent, including three truckdrivers,
notify the drivers of their discharge. Garcia testified
that among those to be excluded were Respondent's
two best drivers and that the situation made him a
little bit panicky. Further cause for his concern is
shown in his testimony that the orientation process
for a new driver takes about a month, in part due to
the training necessary regarding the proper handling
of meat, and in part in order to determine if the em-
ployee is willing to perform the necessary tasks in-
volved in the transport of the meat. He estimated that
for each 10 applicants only I or 2 are retained. It is
therefore evident that the drivers could not readily be
replaced and that their termination severely reduced
Respondent's number of drivers.
The Administrative Law Judge found that the evi-
dence did not support a finding of collusion between
Respondent and its insurer, and no exceptions have
been filed with respect to this finding. However, it
does not automatically follow therefrom that Respon-
dent had no recourse but to terminate these drivers
immediately. One clear alternative would have been
to contact the insurance agent and see if any mistakes
might have been made or if alternate insurance might
have been available at additional cost or with another
carrier.' That such an alternative presented itself to
Respondent is manifest, inasmuch as Garcia testified
that he told Alfredo Moncivais, one of the discharged
drivers, that Respondent was going to check and see
what could be done about the insurance.6 However,
the record is devoid of any evidence that Respondent
actually made any inquiries regarding continued in-
surance for these drivers. The fact that in the past
Respondent might have accepted the exclusion of a
couple of drivers a year does not automatically render
Respondent's acquiescence nondiscriminatory, par-
ticularly as the exclusion of the eight drivers would
have had such a pronounced impact on its work force
of drivers.
That Respondent was not concerned whether the
insurance carrier might have made a mistake in de-
ciding to exclude any of these drivers is revealed by
the testimony of Roberto Salinas, Respondent's pres-
ident and the person to whom the April 26 letter was
addressed. Salinas flatly stated that he did not get
involved in the formula used to determine which driv-
ers were to be excluded from coverage. Consistent
with this position, Salinas, upon receipt of the letter,
promptly instructed Garcia to notify the drivers of
their termination.
Even a cursory examination of the driving records
of these drivers would have raised serious questions
I Copies of documents acknowledging the exclusion of drivers from insur-
ance coverage reveal that Respondent had changed insurance carriers from
Associated Indemnity Corporation to National Surety Corporation, some
time between 1975 and 1977.
6 Another discharged driver, Macias, testified that he had received similar
assurances from Garcia
185
I) (' ISIONS OF NATIONAL LABOR RELATIONS BOARD
as to the propriety of their exclusions. It appears trom
the testimony of driver Macias that the insurance car-
rier counted the entry of an accident on a driving
record as the equivalent of' two tickets, regardless of
whether the driver was issued a ticket as a result of
the accident. Using this formula, the evidence shows
that at the time of' their exclusion, the truckdrivers
each had the equivalent of five to seven entries on
their driving records7 ftr the period between March
1974 and March 1977, shortly before their discharge.
lowever. it appears that the records of most of these
drivers had not significantly changed during the pre-
viwls year. The records in evidence clearly indicate
that in the 2-year period between March 1974 and
March 1976, five of the alleged discriminatees had the
equivalent of' at least five entries.8 Juarez' record
shows that he had received no tickets for the entire
year prior to March 1977. Therefore it appears that
live of the eight drivers had been driving for periods
in excess of a full year with records that suddenly
were found bh the carrier to be sufficient to warrant
exclusion from insurance coverage. That the insur-
ance carrier might have modified its formula for ex-
cluding drivers and thereby acted more restrictively
in 1977 than it had previously is not a defense avail-
able to Respondent, as there is no evidence of such a
change in the record and, in any event, there is no
evidence that Respondent sought to inquire regarding
the exclusion of drivers whose records were no worse
than those of drivers who were not excluded the pre-
vious year. Furthermore, with respect to insurance
policy LC(' 255 05 10 issued by National Surety Cor-
poration to Respondent, it appears that Respondent
on two occasions signed forms acknowledging the ex-
(clusion of' drivers Martinez and Alfredo Moncivais
roinl coverage, yet the evidence shows that these two
':;i) ' yc ' , cle notiied of th.,r exclusion only once,
ir te A\pril. Why the insulancc c,,i;pany might have
>ought to exclude two drivers at one time and eight at
another tine under a single insurance policy has not
been explained by the record, and there is no evi-
dience that Respondent attempted to acquire such an
exp!a llItion.
in grecrment with the Administrative Law Judge,
vl'e ind hat Respondent's May 5 agreement with
l nion Representative rbey Rendon to rehire the
sil,,chargcdl i uckdrivers does not constitute proof that
Respondetic acled nondiscriminatorily when it dis-
charged the truckdrivers. While it is apparent that
ofitfers to reinstate the drivers in alternate positions
e I w, esidence establishes that the driving records of those employees in-
tiiodlued in evidence were either copies or originals of those enclosed with
le \ril 28 letter and were relied on b the insurance company.
A\ there is lol vi ece te thee drivers records during the ear prior to
sl:. Ih 1974, it is possible that their records might have contained additional
,. ,itlOis ot} the preceding eear
might have a bearing on Respondent's obligation to
reinstate the drivers and compensate them for their
losses, it does not absolve Respondent of all responsi-
bility for a prior discriminatory discharge. In any
event, it was admitted at the hearing that these em-
ployees were offered positions that generally paid less
than what they had been receiving as truckdrivers.
Furthermore, it appears that of the four employees
who acknowledged that they received reemployment
offers, two were off work for at least 2 weeks and the
other two were not reassigned until about 4 weeks
after their notice of termination. While it appears that
the Administrative Law Judge did not expressly con-
sider the evidence which conflicts with the testimony
of the remaining four drivers that they never received
offers of reinstatement, even assuming Respondent
had subsequently offered these drivers other posi-
tions, we find that, for the reasons stated above, the
initial termination of the drivers was discriminatorily
motivated and violative of Section 8(a)(3) and (1) of
the Act.
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 as modified be-
low, and hereby orders that the Respondent, Laredo
Packing Company, Laredo, Texas, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
I. Add the following to paragraph l(g):
"provided, however, that nothing in this Order
shall be construed as authorizing or requiring the Re-
spondent to withdraw or eliminate any wage increase
presently enjoyed by Respondent's employees."
2. Substitute the following for paragraph 2(a):
"(a) Offer to employees Daniel Mendoza, Rodrigo
Gaona, Ignacio Santos, Gerardo Moncivais, Felix
Rodriguez, Oscar E. Martinez, Alfredo Moncivais,
Samuel Medina, Jr., Jose Escamilla, Jaime Galvan,
Jr., Gregorio Juarez. Jr., Abel Hinojosa, Juan Ramon
Macias, Mario Moncivais. and Jose Villarreal imme-
diate and full reinstatement to their former jobs or, if
these positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and
make them whole for any loss of wages and earnings
they may have suffered in the manner set forth in the
section of this Decision entitled The Remedy."
3. Substitute the attached notice for that of the
Administrative Law Judge.
l-r Is FURTI-HER ORDERED that the complaint allega-
tions not specifically found herein be, and they
hereby are, dismissed.
186
LAREDO PACKING COMPANY
MEMBER PENEI.I_(), dissenting in part:
My only quarrel with my colleagues' decision con-
cerns their finding that Respondent violated Section
8(a)(3) and (1) of the Act when it discharged eight
truckdrivers after it received notification from its in-
surance agent that they had become uninsurable. The
majority's conclusion that these employees were un-
lawfully terminated is erroneous because the record
simply does not support a finding of a causal connec-
tion between Respondent's union animus and the dis-
charges.
The key facts are not in dispute. Thus, it is uncon-
troverted that in late April 1977 Respondent received
a letter from its insurance agent which stated that the
eight alleged discriminatees were excluded from in-
surance coverage. Immediately thereafter, Respon-
dent terminated the eight drivers. The Administrative
Law Judge stated that "the evidence does not . . .
support a finding of collusion between Respondent
and its insurer,"" and no exception has been filed on
this ground. Further, the Administrative Law Judge
found, as my colleagues acknowledge, that "[ilnsofar
as past practice is concerned, the evidence reflects
that in the past Respondent terminated other drivers
upon receiving notice of their uninsurability." 0
Therefore, this is not a case of disparate treatment. In
addition, Respondent's subsequent actions suggest
that the discharges were not discriminatorily moti-
vated. In this regard, the Administrative Law Judge
found that four of the eight truckdrivers were offered
other jobs. Concerning the remaining four, the major-
ity concedes that there is testimony indicating that
they, too, were offered other positions.
My colleagues nevertheless hold that the discharges
were caused by the employees' union activities, rather
than the independent action of the insurance carrier.
The majority states that "Respondent's acquiescence"
in the decision of the insurance company was unlaw-
ful because a "clear alternative would have been to
contact the insurance agent and see if any mistakes
might have been made or if alternate insurance might
have been available at additional cost or with another
carrier." However, whether or not Respondent exer-
cised good business judgment in failing to protest the
determination of the insurance company is not the
issue before us. Where, as here, "the employer has
proper cause for discharging an employee, the Board
may not rely on scant evidence and repeated infer-
ences to make a finding that places the Board in the
position of substituting its own ideas of business man-
agement for those of the employer." Golden Nugget,
Inc., 215 NLRB 50, 53 (1974), quoting from N.L.R.B.
v. Blue Bell, Inc., 219 F.2d 796, 798 (5th Cir. 1955).
Fn. 34 of the AUD.
lo Id.
On the basis of the facts presented, it is clear to me
that the eight truckdrivers were discharged because of
the action taken by the insurance carrier and not be-
cause of Respondent's antiunion attitude. I would
therefore dismiss the complaint insofar as it alleges
the termination of these employees to be violative of
Section 8(a)(3).
APPENDIX
NoIr(C-. To EP. OYEtES
POSII) BY ORI) R ()F ll
NAII()NAI. LABOR R-I AII()NS B()ARI)
An Agency of the United States Government
Wl I 111. N() discharge our employees, or re-
duce their hours, or in any other manner dis-
criminate against them because thex engage in
union activities or support Amalgamated Meat
Cutters and Butcher Workmen of North Amer-
ica, Local No. 171, affiliated with Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFI.-CIO. or any other union.
WF Wl.I. NOI interrogate our emploees con-
cerning their union activities or the activities of
other employees.
WE WILI. NOT threaten to close our plant if the
employees join or support the Union or engage
in union activities.
Wi WiI.l. NOI threaten to discharge our em-
ployees because of their union activities or sup-
port of the Union.
WE Wll.l. NO create the impression of surveil-
lance of the union activities of our emplovees.
WE WIL L NOT prohibit employees from wear-
ing union insignia at the plant.
WE WIl.L NOT unilaterally grant wage in-
creases to our employees during bargaining ne-
gotiations without consultation or agreement
with the Union; provided, however, that nothing
herein shall be construed as authorizing or re-
quiring us to withdraw or eliminate any wage
increase presently enjoyed by our employees.
WE WI.LL. NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act. as
amended.
WE wil.l. offer to the employees listed below
immediate and full reinstatement to their former
jobs or, if those positions no longer exist. to suh-
stantially equivalent positions, without prejudice
to their seniority or other rights and privileges
previously enjoyed, and give them hackpay. plus
interest, as set forth in the Decision of the Ad-
ministrative Law Judge.
187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Mendoza Jaime Galvan, Jr.
Rodrigo Gaona Gregorio Juarez, Jr.
Ignacio Santos Abel Hinojosa
Gerardo Moncivais Juan Ramon Macias
Felix Rodriguez Mario Moncivais
Oscar E. Martinez Jose Escamilla
Alfredo Moncivais Jose C. Villarreal
Samuel Medina,
Jr.
WE WILL make Manuel Olivares whole for any
loss of earnings he may have suffered by reason
of the discrimination practiced against him.
LAREDO PACKING COMPANY
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Pursuant
to charges, duly filed, the General Counsel of the National
Labor Relations Board, herein called the Board, by the Re-
gional Director for Region 23, issued a series of complaints
against Laredo Packing Company, herein called the Re-
spondent or the Company, alleging that it had engaged in
certain unfair labor practices in violation of Section 8(a)( I),
(3), (4), and (5) of the National Labor Relations Act, as
amended, herein called the Act.' The Respondent filed an-
swers denying the allegations of unlawful conduct alleged
in the complaints.
Pursuant to notice, a hearing was held before me in La-
redo, Texas, on August 23, 24, 25, and 26, 1977, on January
17, 18, 19, and 20, 1978, and on February 28 and March 1
and 2, 1978. Briefs were received from the General Counsel
and the Respondent on June 20, 1978, and they have been
carefully considered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I hereby make the following:
1. THE BUSINESS OF THE EMPLOYER
The Respondent is a Texas corporation with its plant and
principal place of business located in Laredo, Texas, where
it is engaged in the business of the slaughter of animals and
the processing and packaging of meat products.
During the 12 months preceding the hearing, Respondent
purchased and received goods and materials from points
and places located outside the State of Texas valued in ex-
cess of $50,000. Respondent concedes, and I find, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I The charge in Case 23-CA-6444 was filed on March 22, 1977. A com-
plaint and an amended complaint in this case issued on May 24, 1977, and
August 19, 1977, respectively. The charge in Case 23-CA-6520 was filed on
May 16, 1977, and the complaint issued on June 27, 1977. A charge and an
amended charge in Case 23-CA-6762 was filed on October 5, 1977, and
November 1, 1977, respectively. The complaint issued on December 16,
1977. The charge in Case 23-CA 6797 was filed on November 9, 1977, and
the complaint in this case issued on December 16. 1977.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local No. 171, affiliated with Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues; Background
Apart from a host of alleged independent violations of
Section 8(a)(1) of the Act, the consolidated complaints in
this case, as they were from time to time amended, charge
Respondent with having engaged in various types of dis-
crimination against some 20 named individual employees,
all alleged to have been violative of Section 8(a)(3) of the
Act. One employee is alleged to have been discharged in
violation of Section 8(a)(4) of the Act; and finally, it is
alleged that Respondent made certain unilateral changes in
violation of Section 8(a)(5) of the Act.
To briefly state the background in this case, the Union
commenced an organizing campaign, chiefly among Re-
spondent's kill-floor and truckdriver employees, on or
about November 4, 1976. After considerable organizing ac-
tivity, a representation petition was filed on November 26,
1976. An election was held on January 6 and 7, 1977, with
the result that out of approximately 154 eligible voters, 91
voted for the Union and 37 against. Following certification
on January 21, 1977, the parties engaged in bargaining and
eventually executed a collective-bargaining agreement on
September 9, 1977.
I shall state at the outset that, as evidenced by Respon-
dent's conduct in engaging in numerous acts independently
violative of Section 8(a)(1) of the Act as hereinafter set
forth, the record clearly demonstrates that Respondent was
hostile to the Union. To avoid repetition, however, I shall
not attempt to describe all of this conduct in any single
preliminary section of this Decision. Rather, since the con-
duct occurred at various times and involved various differ-
ent supervisors and employees, it will be described during
my recitation and consideration of the various individual
cases of the alleged discriminatees herein. Moreover, it
should be borne in mind that I have taken into account the
sum total of Respondent's antiunion conduct as relevant
evidence pertaining to the individual cases of alleged dis-
crimination, and it has been so considered.
The acts of alleged discrimination which are alleged to
have occurred at various times between January 3, 1977,
and September 1977 are set forth below in chronological
order.
B. The Discharges of Daniel Mendoza and Juan Aguilar on
January 3, 1977
1. The facts
Daniel Mendoza was employed in Respondent's mainte-
nance department under the supervision of Mateo Veliz
from October 1970 until his discharge on January 3, 1977.
An active union supporter, Mendoza passed out union
188
LAREDO PACKING COMPANY
cards at homes of other employees and at the plant locker
rooms, and attended six union meetings during November
and December 1976.
On about November 21, Veliz approached Mendoza and,
in the presence of two other employees, told Mendoza, "I
know that you are passing out union cards. And if I catch
you at it I'm going to fire you." Veliz also stated that Ro-
berto Salinas, Respondent's president, had told him that if
the Union won, the Company would have to close its
doors.2
Juan Aguilar, who also worked in the maintenance de-
partment under Veliz, was employed by Respondent from
June 1976 to January 3, 1977. Aguilar attended union meet-
ings held in November and December and distributed
union cards in the dressing rooms during his lunch breaks.
Veliz approached Aguilar at the timeclock during the last
week of November and asked if he had signed a union card.
Aguilar said that he had. About a week later Veliz asked
Aguilar if he knew how many employees had signed union
cards. Aguilar replied that a majority had signed. When
then asked to identify others who were passing out cards,
Aguilar stated that he had been told not to say anything.
Veliz thereupon stated, "Do you understand that we could
fire you for participating?" Aguilar responded that if he was
going to be fired there was nothing he could do about it.'
Turning to the circumstances of the discharges, it is un-
disputed that Veliz had scheduled the maintenance depart-
ment employees (approximately 10) to work on New Year's
Eve, December 31, the hours of this shift being from 3 to 11
p.m. Aguilar, however, testified that he had asked Veliz on
December 15 if he could be off on December 24 and De-
cember 31 and that Veliz had said yes, if he would remind
him a few days before. Aguilar further testified that he re-
minded Veliz a few days before the 31st and that Veliz then
authorized him not to work on the 31st.
Aguilar and Mendoza came to the plant at about 10 a.m.
on December 31 to pick up their paychecks. Although they
did not come together, they arrived at the same time. The
record reflects that both employees sought to talk to Veliz
and ask for permission to be off on New Year's Eve, but
that they could not see him because he was on the kill floor
and plant rules prohibited them from going to him there.
These employees then went to Pedro Garza, an inspector. It
is noteworthy, however, that not only were employees in-
structed to see Garza when Veliz was busy, but that Garza
was also authorized (and did) sign written reprimands that
were issued to employees. In any event, Mendoza and
Aguilar spoke to Garza individually. Mendoza testified that
he asked to be off that day because his wife was not well
and he had to take her to a doctor. Garza replied, he said,
that it would be all right and that he would let Veliz know.
2 The credited testimony of Mendoza, the specifics of which are undenied.
Concerning the subject of the Union, Veliz testified only that on one night at
the start of the campaign, he called a meeting of his employees and told them
that they did not have to join the Union to be sure of their jobs and that they
would keep their jobs regardless of whether the Union won or lost. Other
than this, he testified only that, "I never called any other meeting and the
subject was never again discussed or talked about." As indicated, I credit the
testimony of Mendoza which I do not believe to have been fabncated.
3 Credited testimony of Aguilar. See the preceding footnote, which is also
applicable here.
Aguilar testified that when he spoke to Garza he reminded
him to tell Veliz that he would be off that day. and that
Garza said it would be all right. Concerning this occasion,
Garza testified that Mendoza and Aguilar came to him and
said they were not going to work that day. He said he told
them to see Veliz, but they said they had already seen him
and he had not given them permission not to work. Garza
testified that when he then told them they should come to
work, they said that they would not come in anyway. Garza
responded, he said, by stating that he would tell this to
Veliz.
Mendoza and Aguilar did not report to work for the New
Year's Eve shift. When they next reported to work on Janu-
ary 3, 1977, they found their timecards missing and they
were told by Veliz that they were discharged for not having
worked on December 31. They then went to Rogelio Sali-
nas, Respondent's vice president, to appeal their discharge.
Salinas, however, sustained the action of Foreman Vcliz.
2. Conclusions as to Mendoza
Although the cases of Mendoza and Aguilar appear to be
largely similar, the fact is that there are material differences
which compel me to treat them separately and to arrive at
different conclusions.
Unlike the case of Aguilar, who asserted that he had
previously been granted permission to be off, it is evident
that Mendoza had planned to work on December 31 but for
the unexpected occasion of his pregnant wife feeling ill that
morning. Although vigorously cross-examined on the sub-
ject, Aguilar credibly detailed the occasion of taking his
wife to see a doctor in Nuevo Laredo later that day. Under
the circumstances, I am persuaded that Aguilar had a valid
reason to be off work that day and that he explained this, in
the absence of Veliz, to Garza, who I find was authorized to
receive messages of this type. Upon the entire record in this
case, I am convinced and find that Mendoza was termi-
nated because he was known by Respondent to be a union
supporter. As previously noted, this was evidenced by Veliz'
telling Mendoza that he knew that Mendoza was passing
out union cards and that he would fire him if he caught him
in this activity. Respondent has a large turnover of employ-
ees.
Employed since 1970, Mendoza was one of Respondent's
most senior and experienced employees in his department.
And as he told Rogelio Salinas at the time of his discharge,
he had never before been punished or reprimanded in any
way. Indeed, the record reflects that other employees who
had been absent without authorization had received warn-
ings or other penalties, but were not discharged. Not only
did Mendoza have a valid reason for being off, but Respon-
dent was apprised of this reason. Under all these circum-
stances I have no hesitation in finding that this senior em-
ployee would not have been discharged for his December
31 absence but for his union activities. Accordingly, I find
that Respondent's discharge of Mendoza was in violation of
Section 8(a)(3) and (I ) of the Act.
3. Conclusions as to Aguilar
Aguilar admittedly wished to be off New Year's Eve to
be with his family. While this is understandable, the fact is
189
I)ECISIONS OF NATIONAL. LABOR RELATIONS BOARD
that this was no emergency. Veliz found it necessary to
schedule all the employees on this shift to work their regu-
lar hours. which was up to 10 p.m. No doubt the others also
would have wished to be off that evening.
As noted, Aguilar testified that in mid-December he re-
quested and received permission to be off on December 24
and December 31. Stating that Veliz asked to be reminded,
Aguilar testified that he so reminded Veliz about 2 days
before I)ecember 31 and that Veliz again assented to his
request that he be off.
Veliz testified that upon determining that the employees
would have to work New Year's Eve, he talked it over with
the employees and they came to an agreement that "we
would work harder that night to finish early enough to have
time to celebrate." Veliz further testified that Aguilar asked
permission to be off that night because he wanted to cele-
brate, but that he refused and told Aguilar that if he gave
him time off that evening he would have to give it to the
others also. Aguilar then stated, he said, that he would take
the time off anyway because he would not be the only one
who would not report for the shift. Although I do not credit
all Veliz' testimony, I do credit it in this instance.' Finding
then, as I do, that Veliz finally denied Aguilar's request to
be off on l)ecember 31. this is a case where this employee
deliberately refused his foreman's instruction that he report
to work. Under the circumstances, and notwithstanding the
fact that Aguilar was also a union supporter who earlier
had been unlawfully threatened with discharge, I am im-
pelled to ind that Aguilar, a relatively new employee, was
terminated for deliberate disregard of the foreman's instruc-
tion that he report to work. Unlike Mendoza, Aguilar did
not have a valid reason for not reporting to work with all
the others in his department. Moreover, this was an aggra-
vated situation which undoubtedly gave the foreman no
little concern; for, as Veliz testified. "I had a little pressure
from the other employees ... " because of the absences that
night. As has been frequently stated, union activity cannot
immunize employees from discharge for cause. Accord-
ingly, and in view of all the foregoing. it is recommended
that the allegation in the complaint as to Aguilar be dis-
missed.
4. The 81a)(l I violations
In accordanlce with the facts heretofore found with re-
spect to Mendoza and Aguilar, I find that Respondent in-
dependently violated Section 8(a)(1) of the Act by Veliz'
statement that these employees could or would be fired for
passing out union cards or for engaging in union activities.
his telling Mendoza that Respondent's president had indi-
cated that the Company would close its doors if the Union
won, and his interrogation of Aguilar concerning his union
activities and the union activities of other employees.
4 Il,, assumirng Veliz had earlier granted Aguilar permission to be onf t or
this ,ccasion. I credit his testimon) that he denied permission when it was
finally decided that all the employees would work on December 31. More-
over. it Aguilar i fact had received final permission just 2 days earlier. it
seems soitleuwhat peculiar that he would seek Veliz out again when he came
mi the plant on the morning of D)ecember 31 tfor further confirmation.
C. The Discharge of Ignacio Santos
Except for an 8-month period in 1975, Santos was em-
ployed on the kill floor from September 1968 until he was
terminated on January 17, 1977. His supervisors were Er-
nesto Martinez and Azael Gonzales, the latter being the
higher supervisor.
Santos was the initiator of the union campaign and there-
after remained one of the chief organizers. Thus it was San-
tos who on November 4, 1976, first contacted Union Repre-
sentative Erbey Rendon after discussing the possibility of
organizing a union with other employees. Shortly thereafter
he conducted a union meeting at the home of Indolcio Gar-
cia, at which time he passed out union authorization cards.
During the months of November and December he passed
out approximately 85 union cards, this activity occurring at
various times at employees' homes, in the Company park-
ing lot, and at the plant during break periods. During this
period he also held several union meetings at his home. It
should be noted here that some of this activity, including
plant visitations, occurred while he was out because of an
injury during portions of this period.
It is undisputed that Santos injured his back on October
4, 1976, while attempting to lift a 300-pound drum of pow-
der used to clean tripe. He nevertheless kept working until
October 14, at which time the injury compelled him to see a
doctor. At this time, with the permission of his foreman,
Santos left work to see a doctor and remained out until
October 31. Returning to work on November 1, he worked
that day but again experienced difficulty with his back.
With the permission of his foreman, he took off work on
November 2 and remained out until November 13. Return-
ing on November 13, Santos worked until December 8 at
which time, again with Respondent's permission, he again
took off due to the condition of his back injury until De-
cember 31. During this period his doctor referred him to a
specialist who in turn referred him to a rehabilitation center
for 6 weeks of treatment. On January 14, 1977,7 Santos was
advised by his doctor that he could report back to work the
following day but was given a note stating that he should be
assigned to light duty. Santos went to the plant on January
15, 1977. a Saturday, and at this time spoke to his supervi-
sors, Ernesto Martinez and Azael Gonzales, who, according
to Santos' unrefuted testimony, told him to report back to
work on Monday, January 17. Santos did so and came to
work that morning. However, when he reported to Marti-
nez, Martinez advised Santos that the Company did not
have any more work for him because he was not a depend-
able person. When Santos asked why he was considered to
be undependable. Martinez responded that it was because
he left the job any time he wanted to. According to Santos'
undenied testimony, he responded by telling Martinez that
this was a lie because every time he left the job he did so
with his [Martinez'] permission and that he had never be-
fore been reprimanded by anyone at the plant. Santos then
left Martinez and went to see Azael Gonzales. Gonzales
said that he could not speak to him about the matter. He
T'Ihe record, including Resp. Exh. 14, is unclear as to whether or not
Santos reported hack on December 31. 1976. In any event, he appears to
have been off' for about the first 2 weeks in January 1977.
19(
LAREDO PACKING COMPANY
then went to Pedro Garza [a disputed supervisor] who told
him the same thing. He next went to President Roberto
Salinas. Santos testified that he "explained his condition" to
Salinas, but that Salinas told him to see Armando Garcia.
Armando Garcia, about whom much more shall be said, is
Respondent's sales manager but also exercises, next to the
President, top supervisory authority over the truckdrivers
and production employees. In any event, Santos testified
that when he went to see Garcia pursuant to Salinas' in-
structions, Garcia told him that there was no work for him
because he was not dependable. Santos testified that he
thereupon pled with Garica not to let him go because he
had a large family. He also named two other employees
who had been hurt on the job but were still employed. Gar-
cia nevertheless said that he had no work for him. With this
Santos was terminated.
Although Santos was responsible for initiating the union
campaign and was the leading adherent and organizer prior
to his termination, there nevertheless is no direct evidence
of Company knowledge. Aside from the merits, Respondent
raises this as a defense to Santos' case. Upon the entire
record, however, there is ample evidence to warrant the
inference that Respondent in fact did learn that Santos was
a union supporter. Thus, as is noted throughout this Deci-
sion, the evidence reflects that Respondent engaged in nu-
merous coercive acts against its employees, these including
interrogation of individual employees not only as to their
union activities, but also as to their knowledge of the union
activities of other employees. Armando Garcia, who dis-
charged Santos, was particularly involved in this type of
conduct. Of the many such incidents, a case in point is
Garcia's interrogation of Oscar Martinez, a truckdriver, in
late November 1976. Martinez credibly testified that on this
occasion Garcia approached him and stated that he had
information that several truckdrivers and kill-floor employ-
ees were involved with union activities and asked if he knew
anything about it. When Martinez replied that he did not,
Garcia asked Martinez, if he knew of anyone passing out
union cards or supporting the Union, to let him know. Mar-
tinez replied that if he found anything out he would let him
know. During the conversation, Garcia particularly told
him to keep an eye on employees Alfredo Moncivais and
Gregorio Juarez and to let him know if they were involved.6
Furthermore, and as discussed later in this Decision, Garcia
told some employees that he had a list of the union employ-
ees. Accordingly, and in view of all the foregoing. Company
knowledge is clearly inferable and I so find.
Upon the entire record. I find that Respondent's dis-
charge of Santos was in violation of Section 8(a)(1) and (3}
of the Act. My reasons for so finding are several. In the first
place, the reasons given to Santos for his termination, as
well as those advanced at the hearing, are inconsistent and
contradictory and therefore indicative of a discriminatory
motive. Thus, it will be recalled that Santos testified, with-
out denial, that upon returning to the plant on January 15
he was told by both of his foremen, Martinez and Gonzales,
that he was to report to work the following Monday. It
6 It is interesting to note that at this point Garcia. who had previously
been married to Maninez' sister, did not suspect that Martinez was also a
union supporter. How he eventually found out that he was will be related
later in this Decision.
seems reasonable to assume that these departmental super-
visors would be in a position to know whether there was
work available for him or not. Suspicious in itself is the tact
that Gonzales would not talk to him when he reported on
Monday. Beyond that, however, at the hearing Armando
Garcia testified that one of the reasons for not putting San-
tos back to work was that "we didn't have no opening.
because we had to hire somebody else to do his uork." Not
only is this inconsistent with the instruction earlier given to
Santos by the foremen that he report to work on Monda>.
but it is inconsistent with the other reasons given hb Re-
spondent's supervisors for terminating Santos; naniel\, that
he missed too much work, that he was not dependable, and.
finally (as Garcia asserted at the hearing), that he .was "too
accident prone."' The fact of the matter is that Respondent
adduced no evidence whatsoever to refute Santos' testi-
mony that he was injured on the job and that his subse-
quent excused absences were due solely to the fact that the
injury persisted and that at all such times he remained un-
der a doctor's care. Neither is there evidence to sustain Gar-
cia's contention that Santos was accident-prone, since Re-
spondent's own records reflect that Santos previously had
sustained only one other injury which kept him off work,
this having occurred on March 25, 1976. His record in this
respect was otherwise clear ever since his hire in September
1968. Apart from the foregoing, not only was Santos one of
Respondent's most senior and experienced employees, but
Respondent regarded him so highly that in 1975 it sent him
on a special out-of-town assignment to train other employ-
ees in all aspects of slaughtering operations. Yet, as Santos
told Garcia during the discharge conversation, Respondent
accommodated at least two other employees (Alfonso
Aguilar and Ramon Pena) who had been injured bh assign-
ing them to lighter duties.' The fact that it did not likewise
accomodate this valued employee can be but regarded as
another indicium of discriminatory motivation.
In sum, and for all the reasons stated above, I find that
Santos was discharged in violation of the Act. I further find
that Respondent violated Section 8(a)( ) of the Act b Gar-
cia's interrogation of Martinez concerning his union actii-
ties and the union activities of other employees and b his
telling Martinez to keep an eye on Alfredo Moncivais and
Gregorio Juarez.
D. The Discharge of Rodrigo Gaona
Rodrigo Gaona was employed at various times either in
Respondent's boning room or on the kill floor from June
1974 to January 24, 1977. Without relating all of the details,
I shall state at the outset that at times Gaona's testimony
was confused and uncertain. On balance, however, the facts
of Gaona's case are relatively simple and the chronology of
events. as set forth in the record, eventually becomes clear.
More importantly, a crucial conversation with his supervi-
sor, Azael (Pacho) Gonzales. and the event which immedi-
ately followed, is undenied.
' In addition, Garcia testified " . his supervisor thought that he was just
pulling a fast one, and he was just doing it to collect Worksmen's Comp."
I Santos also showed Respondent's supervisors a note from his doctor re-
questing that he he assigned to lighter work.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gaona attended several union meetings, including the
first, which was held on November 4, 1976, at which time
he also signed a union card. The critical conversation oc-
curred on November 11, 1976, concerning which Gaona
credibly and unrefutedly testified as follows:9
As I was punching my card to get off for my lunch
hour, he [Azael Gonzales] called me, and he asked me
if I knew anything about the Union, and I told him
that I knew about it, that I had already signed a card.
And he asked me why I had done that, why had I
signed this card, why had I joined the Union since they
had helped me, taking me from this cold storage room
where I used to work because I was hurt in my arm.
He asked me why did I turn my back on the Company
since they had helped me that way. And he told me
that as a result of this, I was going back into this cold
storage room-place.
That's all I remember.
Gonzales' reference in the above conversation to the fa-
vor Respondent granted to Gaona referred to the fact that
in May 1976 Gaona requested to be transferred from the
boning department to the kill floor because of an arthritic
pain in his arm. This condition was aggravated by the cold
temperature in the boning department; the kill floor was
not as cold. At that time Respondent granted Gaona's re-
quest and transferred him to the kill floor. In any event, it is
undisputed that about 3 days after Gaona's conversation
with Gonzales on November 11, Gaona was transferred
back to the boning department.
After working in the boning department for about 2
months, Gaona again began to suffer from the same arthri-
tis. A doctor examined him on January 14, 1977, and wrote
Respondent a letter stating that in his opinion Gaona
should not continue to work in a cold environment.
After working in the boning department another week,
Gaona finally showed the doctor's note to Gonzales on
January 24, 1977. Gonzales referred him to Armando Gar-
cia. Upon reading the note, Garcia told Gaona that he had
no more work for him and, with this, Gaona was termi-
nated. Garcia, however, contacted Gaona on the following
day and stated that he would have to bring a statement
from the doctor stating that he was well and could work in
cold places. For obvious reasons this was not accomplished
and Gaona remained terminated.
Stated briefly, the crux of Gaona's case was Respondent's
prompt implementation of Supervisor Gonzales' statement
to Gaona on November 4, 1976, after interrogating Gaona
and learning from him that he had signed a union card, that
he would be transferred to the boning department. It hardly
need be said that this undenied conduct constitutes direct
evidence of unlawful discrimination. Accordingly, I find
that not only was Gaona's transfer to the boning depart-
ment on or about November 14, 1976, violative of the Act, °1
but it follows and is reasonable to assume that the events
leading to Gaona's discharge on January 24, 1977, would
not have occurred but for the discriminatory transfer on
9 Gaona's testimony concerning this conversation was also corroborated
by employee Isaac Jaimes.
'o At the hearing the General Counsel amended the complaint to allege
this transfer as a violation.
November 14. Accordingly, I find that by reason of the
foregoing, and also when considered in the context of the
other unfair labor practices found herein, Respondent's dis-
charge of Gaona was violative of Section 8(a)(3) and (1) of
the Act. I further find that Gonzales coercively interrogated
and threatened Gaona on November 11, 1976, in indepen-
dent violation of Section 8(a)(1) of the Act.
E. The Discharge of Gerardo Moncivais
Gerardo Moncivais had worked for Respondent for
about 8 months a year since 1969. During the summer
months he was a migrant worker in other parts of the coun-
try. For most of this period he had worked on the kill floor,
but during the last period he became a truckdriver and
drove a cattle truck under the supervision of Azael Gonza-
les.
Moncivais attended the union meetings which were held
in November and December 1976, and he signed a union
card on November 8, 1976. During this period he was a
union supporter and solicited employees to sign union cards
at their homes and during break periods at the plant.
On December 12, 1976, Moncivais drove a truck about 8
miles out of town, at which point the engine failed and the
truck came to a halt. When he called the maintenance de-
partment, the maintenance crew brought out another truck
for him to continue on his way and towed back the one he
had been driving. Moncivais testified that he told the main-
tenance men that the oil and water pressure were okay. He
subsequently asked mechanic Carlos Vasquez what was
wrong and Vasquez advised him, he said, that some parts
had been broken because of a pin that had fallen into the
motor.
On December 19, 1976, Moncivais experienced another
breakdown while en route to Edinburg, Texas. Moncivais
testified that he pulled to a stop when the engine started to
knock. Upon his call, the maintenance department again
brought out another truck and towed the truck he was driv-
ing back to the plant. Moncivais said that before he contin-
ued on his way he and the two mechanics checked the oil
and water pressure and found them to be okay."
The cost of repairing the first truck ultimately was
$3,571. The cost of the second truck was $6,541.38.
Moncivais' supervisor, Azael Gonzales, did not discuss
the matter with him on either of these occasions. Thereafter
on Monday, December 20, and Tuesday, December 21,
Moncivais was sent out on two separate trips. Throughout
this period of time, Moncivais was driving almost daily,
averaging seven or eight trips per week. After a few days
passed without his being assigned another trip after the De-
cember 21 trip, his last one, Moncivais called Gonzales on
about December 24 to learn what was wrong.' Gonzales
told him that he had been suspended and that Vice Pres-
ident Rogelio Salinas wished to speak to him on the follow-
ing Monday. Upon seeing Salinas, Rogelio told him that he
did not think it was a coincidence that the trucks had bro-
ken down and that he would make a further determination
II On both of these occasions the trucks were empty.
12 The trip assignments were made by telephone calls to the drivers'
homes, therefore not making it necessary for the drivers to come to the plant
for assignment.
192
LAREDO PACKING COMPANY
as to his continued employment after speaking to Gonzales.
About a week later, Moncivais called Gonzales and at this
time was informed by Gonzales that he had been termi-
nated but that he did not know the reason therefor. Monci-
vais then called Rogelio Salinas and asked to be given a
reason for his termination. Salinas thereupon advised that
he did not believe that the breaking down of the trucks was
a coincidence and that he did not have any more work for
him. Moncivais credibly testified that the conversation then
continued as follows:
So I then told him that if he would investigate the
mechanics, he would know that it wasn't my fault that
the trucks had broken down. And he said he didn't
have to investigate anybody, and in a loud manner, he
told me that he didn't have to tell me anything or give
me any explanation why he was terminating me from
my job.
Called by Respondent, Rogelio Salinas testified that
Moncivais was discharged after he checked with Don Meis,
then Respondent's maintenance and mechanic supervisor,
who told him that in his opinion the trucks in question had
been abused.'3 He confirmed that he told Moncivais that he
was terminated because "two engines ruined within 10 days
was too much of a coincidence."
Examination of the record reflects that Respondent's as-
serted reason for the discharge of Gerardo Moncivais does
not stand up under scrutiny. This becomes particularly ap-
parent because the record conclusively demonstrates that
Respondent's witness Donald Meis was not telling the truth
with respect to a most important aspect of Respondent's
defense. Thus, Meis testified that when Salinas asked his
opinion concerning the damage to the trucks, he told Sali-
nas, "I felt in both cases there was negligence or abuse
involved ... by the driver." Testifying that the damage in
both trucks involved a bearing seizure (and a damaged
crankshaft in one), when further asked if he attributed this
to any wrongdoing on the part of the driver, Meis re-
sponded, "Well, mechanical ... it could happen, but I did
attribute it to wrongdoing on the part of the driver in the
degree of damage occurred to the engine. I think it could
have been lessened through closer observation at the time
when the problem ... it should have been stopped earlier."
Coming closer to the point, Meis testified that both trucks
were repaired in Respondent's maintenance shop under his
supervision. From the record it appears that truck number
23, one of the trucks, was repaired at Respondent's shop.
While the record and the testimony of Meis do not clearly
establish this point, for decisional purpose I shall assume
that they do. However, when specifically asked on direct
examination if he supervised the repair of the other truck
(truck number 19), Meis responded, "[Y]es, sir we did we
did it at our shop, uh huh." The questioning then continued
as follows:
Q. Did you, as a result of your repairing that vehi-
cle, do you have any opinion as to the cause, or any
13 Salinas testified that Respondent discontinued assigning trips to Monci-
vais after he first spoke to Meis and was so informed. He said that when
Moncivais called him the second time he again spoke to Meis and was simi-
larly informed.
causal relationship as to what caused that vehicle to
break down?
A. This engine was severely damaged, and indica-
tions were to me that it had been over-speeded.
Respondent's Exhibit 14 is a repair bill from Mack
Trucks of Corpus Christi, Texas. This document completely
refutes the testimony of Meis that truck number 19 was
repaired at Respondent's shop, for it shows on its face that
it was repaired by Mack Trucks, and, as Meis finally admit-
ted under cross-examination, by the dealer at Mack Trucks'
Corpus Christi location where the truck was sent for re-
pair."4 Moreover, the document, which lists the parts and
labor involved, is headed with the notation "Major Over-
haul (Removal)." It was this truck that involved a total
repair cost of $6,541.38.
Obviously, the foregoing in itself raises a serious question
concerning the credibility of Respondent's entire defense as
to Moncivais' case. Moreover, the Mack repair bill for
truck number 19 bears the stamped date of January 21,
1977, which is well beyond the date that Moncivais was
discharged. Although it was far from established that the
"major overhaul" was necessitated entirely by whatever oc-
curred when Moncivais was driving the truck, it is clear
that Respondent did not know the cost of the repair at the
time it terminated him.
Beyond the foregoing, it is undisputed that neither Meis
nor Rogelio Salinas nor any other supervisor ever ques-
tioned Moncivais concerning the disabled trucks. Absent an
outside reason, it would be reasonable to assume that Re-
spondent would have been interested in his version as to
just what occurred. Accordingly, for this and the other rea-
sons related above, I am convinced and find that the reason
given by Respondent for the discharge of Moncivais,
namely the matter of the two truck breakdowns while
Moncivais was driving, was a pretext, and that the real
reason for his discharge was that he assisted and supported
the Union. As to Salinas' charge that these incidents were
"more than a coincidence," if this be taken to intimate that
Moncivais deliberately sabotaged them, there is no evi-
dence whatsoever to indicate that such was the case. Not
only do I credit Moncivais to the effect that the breakdowns
were accidental and did not result from his fault, but there
is nothing to reflect that the organizing campaign was con-
ducted other than in an orderly manner and without inci-
dent. I recognize that there is no direct evidence of Com-
pany knowledge concerning Moncivais' union activity.'"
However, I refer to the reasons for my inferring Company
knowledge in the previously discussed case of Ignacio San-
tos. For the same reasons, I find that Company knowledge
as to Gerardo Moncivais is also inferable."
"' Resp. Exh. 14 shows that Mack Trucks has a facility at Austin. Texas, as
well as at Corpus Christi.
" Moncivais testified that on November 20 and 23, 1976, he spoke in favor
of the Union to Reynoldo Villarreal and Rogelio Landeros, respectively. He
said that he later learned that both of those individuals, with whom he was
friendly, had been promoted to assistant supervisors. However, since neither
of them is alleged in the complaint to have been supervisors, and since the
matter of their supervisory or nonsupervisory status was not litigated at the
hearing, I do not rely on this testimony as establishing Company knowledge.
's In addition, and as discussed in the section dealing with the discharge of
Mario Moncivais, infra, it is noteworthy that Supervisor Armando Garcia
told Mario Moncivais that all of the Moncivaises would be discharged be-
cause they were responsible for bringing the Union in.
193
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, and in view of all the foregoing, I find that
Moncivais was discharged in violation of Section 8(a)(3)
and (I) of the Act.
F. The Reduction in Hours of Manuel Olivares
Manuel Olivares has been employed in Respondent's
maintenance department (miscellaneous work, not as a me-
chanic) since September 1958, under the supervision of Ma-
teo Veliz. The complaint alleges that his hours of work were
discriminatorily reduced.
Olivares was very active in the union campaign. In addi-
tion to attending the union meetings, he distributed 30 40
union authorization cards at the plant before and after
work and during the noon break period.
In the fall of 1976, one Frances Molina'7 told Olivares
that Octavio Salinas was angry at Olivares and that he
wanted to know something about the Union. Octavio Sali-
nas is the father of Roberto and Rogelio Salinas and at the
time was chairman of the board. Following his conversa-
tion with Molina, Olivares went to Salinas' office. Salinas
asked if he was handing out cards to the employees. When
Olivares then asked how he knew this was so, Salinas stated
that he had been so apprised by other employees. After
stating that he did not want the Union, Salinas again asked
if he was a union member. Olivares said that he was.' s
In December 1976, Hector Herrera, the maintenance and
cleaning supervisor, told Olivares that the Company would
fire him if he continued his union activities or if he had
anything to do with the Union.'9
On January 21, 1977, Supervisor Azael Gonzales saw
Olivares about to go to the office and observed that Olivares
was wearing a union insigne on his cap. On this occasion he
told Olivares to "take off that damned cap" if he was going
into the office. On February 3, 1977, Supervisor Armando
Garcia called Olivares into the office and told him that al-
though the Company had helped him for a long time, he
had become ungrateful and had turned his back on the
Company. When Olivares responded that he did not know
what he (Garcia) was saying, Garcia told him "[D]on't act
stupid," and said that he had found out that Olivares was
distributing cards during working hours. Garcia then went
on to say that the Company was going to watch him and
that if they caught him with a union card or a union decal,
he would suspend him.20
At all times material hereto, except that mentioned be-
low, Olivares worked from 6 a.m. to 5 p.m. On February 25,
11 Although Olivares testified that Molinas was a supervisor, his supervi-
sory status was neither admitted nor litigated. I relate this conversation only
because it is explanatory as to what followed.
'a Olivares' testimony concerning this conversation was not controverted.
19 I do not credit Herrera's testimony to the effect that he never told Oli-
vares that he would fire him because he supported the Union.
'Garcia testified that he spoke to Olivares after having received com-
plaints that he had been pressuring people to sign cards during working
hours. He said that he told Olivares to discontinue the activity dunng work-
ing hours but that he could pursue it during his nonworking hours. When
Olivares denied soliciting during working hours. he said, he again told him.
"[Dlon't do it on our time." Garcia further testified that Olivares asked him
to name the employee who had complained to him, but that he told Olivares
that it "was none of his business." Olivares, a manual and odd job worker,
has a hearing handicap and appears to have been the butt of various jokes
and nicknames at the plant. He nevertheless impressed me as an honest and
forthright witness. I do not believe his testimony to have been contnved and
I credit it.
1977, Supervisor Azael Gonzales came up to Olivares as he
was working with Supervisor Ernesto Martinez and stated,
"What S.O.B. told you that you could put in so many
hours?" Olivares replied that this was up to his supervisor.
Gonzales then stated, "From now on I want to see you in at
eight and take your [obscenity deleted] at 3:00 o'clock."
Olivares responded to this by saying that he had worked for
the Company a long time and did not care, but that he
would report Gonzales' statement to the union representa-
tive. Gonzales thereupon said, "And if you keep up with
this damned union, I'm going to fire you."'
The record reflects that Olivares' hours were reduced
from 8 a.m. to 3 p.m. for a period of approximately 2 weeks
immediately following the above conversation. Respondent
offered no explanation for this sudden reduction in the
hours of this employee. In view of the coercive statements
made to Olivares by various supervisors during the several
months prior to this incident, and particularly in view of
Gonzales' final statement to Olivares in the February 25
conversation, i.e., "[I]f you keep up with the damned union
I'm going to fire you," it is clearly apparent, especially in
the absence of any explanation by Respondent, that the
reduction of Olivares' hours was taken as a measure of re-
taliation against him for his union activities. Respondent
thereby violated Section 8(a)(3) and (1) of the Act. I further
find that Respondent, by the supervisors named above, in-
dependently violated Section 8(a)(1) of the Act by interro-
gating Olivares concerning his union activities, by threaten-
ing him with discharge or suspension because of his union
activities, and by telling him, in effect, to remove the union
insignia he was wearing.
G. The Termination of Felix Rodriguez, Jr.
Felix Rodriguez, Jr., was employed on the loading dock
from November 1975 to January 15, 1977, under the super-
vision of Foreman Hector Garcia. Rodriguez was 17 years
of age when discharged by Respondent on the latter date.
Initially a part-time employee, he became a full-time em-
ployee during the summer of 1976.
Rodriguez attended two or three union meetings held at
the home of employee Indolcio Garcia in the fall of 1976
and signed a union card in November or December 1976.
Rodriguez' undenied and credited testimony concerning a
conversation he had with Foreman Hector Garcia in De-
cember 1976, while he was working on the loading dock,
was as follows: Garcia asked if he knew anything about the
Union. Rodriguez said no. Garcia persisted and asked if he
was with the Union. This time Rodriguez said yes. After
then asking if Rodriguez did not know that the Company
was doing the underage employees a favor by letting them
work there, Garcia finally stated that the Company would
fire them if the Union won.
Also undenied was the following conversation. A few
days before the January 1977 election, Garcia came up to
2 The undenied testimony of Olivares. Neither Azael Gonzales nor Ernes-
to Martinez was called to testify.
22 Employee Pedro Hernandez likewise testified that on two occasions, one
shortly after the election and again on about April 25, 1977, Armando Gar-
cia told him to remove a union decal from his cap. The same violation is
found as to these incidents.
194
LAREDO PACKING COMPANY
Rodriguez and David Lara, the latter another minor. Refer-
ring to a truck that was passing by. Garcia told them that
they would be like "those old men, dirty and working in the
sun," because the Company was going to fire them when
the Union lost.
On January 15, 1977 (about a week after the election),
Garcia called Rodriguez and three other minor employees
into his office and told them they were being terminated
because they were under 18 and could not work there in the
difficult jobs. He stated that they would be welcome to
work there again when they became 18. With this, these
employees were terminated.
Respondent asserts that Rodriguez and the other minors
were terminated because of a government regulation per-
taining to minor employees and that this action took place
when it did because of the following circumstances. It was
the testimony of Julia Clark, an office employee of Respon-
dent and also secretary to Roberto Salinas, that in Decem-
ber 1976 she received a telephone call from an individual
(named either Martinez or Rodriguez, she said) who identi-
fied himself as being with the Laredo branch of the Depart-
ment of Labor. This individual, she said, asked to speak
with Reuben Lara. an employee in Respondent's personnel
and accounting department. Advising that Lara was not in,
Clark said that she would take a message. According to
Clark, the caller then asked if the Company had any em-
ployees under 18. When she responded that some high
school employees were usually hired for odd jobs, the caller
stated, according to Clark, that the Company could be fined
up to $1,000 per employee if it had employees under 18
working on the loading dock or the kill floor, and further.
that this should be checked out. Clark later added that dur-
ing the conversation the caller stated that Lara had called
him to request some information and that he would be
sending some pamphlets to him. Still later, under cross-
examination, Clark testified that the caller first referred to a
minimum wage increase that would be effective on January
1, 1977, and that he then asked about the minor employees.
At this point she also testified, "I guess he [the caller] said
he was going to call back to Mr. Lara." In any event, Clark
testified, "After I hung up with him I told Mr. Salinas
about it, and he said he would take care of it." Curiously,.
upon later cross-examination, Clark testified that none of
the Salinases was present at the time of the call and that no
one else from management was present in the office. In-
deed, at another point, Clark testified that she went to see
Salinas immediately after the call, but that she had to wait
a few moments because "he was with someone in the of-
fice."
Roberto Salinas testified that Clark told him about the
call, whereupon he called his attorney. John Mann, and
asked him "to check the law and let us know if we were
actually in violation." What transpired thenceforth may be
set forth as it was stated in Respondent's brief:
John Mann testified as to his being the general counsel
for the Respondent in all but labor matters. He indi-
cated he recalled receiving the inquiry from the Sali-
nases about the use of minors and asked one of his
associates to research the question. Mann went on to
testify that it was about this time that his firm em-
ployed the undersigned [Ben F. Foster] as attorney for
Respondent in the pending NLRB proceedings. Mann
testified that the result of his associate's research was
to advise against the employing of minors in and
around a meat packing facility. Mann further testified
that he relayed this to the undersigned who agreed
with his overall evaluation and interpretation of the
applicabhility of the child labor provision of the Fair
l.ahor Standards Act. As a result of this, the Respon-
dent was advised by its attorneys to discharge all per-
sons on the payroll who had not yet attained the age of
18. regardless of their classification. At the instruction
of counsel, the Respondent discharged some ten (10)
persons believing them to he the total number of per-
sons employed by the Respondent who had not yet
attained the age of 18. The majority of the discharges
were effective January 15, 1977.
Before turning to my conclusions, some further facts are
here in order. Called by the General Counsel on rebuttal,
Gildardo Rodriguez testified that he is the sole representa-
tive employed by the U.S. Department of Labor in Laredo.
having been employed there for 3-1/2 years. No one else is
present in the office, even in his absence. Rodriguez testified
that to his recollection he had never made any inquiries of
Respondent concerning the employment of minors. How-
ever, Rodriguez did testify that in about April or May 1977,
he received a call from someone in the Respondent Com-
pany inquiring about provisions of the Child Labor Law.
Rodriguez said that at this time he explained that persons
under 18 are prohibited from working in slaughtering areas
and in the handling of carcasses. This leads to a further
fact; namely, that the provisions and orders of the Child
Labor Law do not prohibit persons under the age of 18 from
working at any and all jobs in a packing plant. Thus, inso-
far as relevant here. Order No. 10 restricts minors from
working in the following specific hazardous occupations in
the slaughtering, meat-packing or processing. or rendering
industry: All occupations on the killing floor: all boning
occupations: all occupations that involve the pushing or
dropping of any suspended carcass, half carcass or quarter
carcass: all occupations involving hand-lifting or hand car-
rying any carcass.... 2
I turn now to my conclusions. Aside from the various
actions which followed, it is clear that Respondent's defense
as to Rodriguez is first of all predicated on what may be
described as an alleged semi-anonymous telephone call. I
have previously related the confusing, fragmentary, incon-
sistent, and contradictory testimony of Julia Clark concern-
ing this telephone call and what she purportedly did after
receiving it. However, assuming that she did receive a call
from someone who identified himself as the local (Laredo)
representative of the U.S. Department of Labor, and fur-
ther assuming that he questioned her about Respondent's
employ of minors and stated that Respondent could be
fined up to $1,000 for employing them on the loading dock
or the kill floor. I find it incredible that Respondent or its
representatives would not make a simple telephone call to
the U.S. Department of Labor in Laredo to ascertain who
made the call and/or what statements were made to Re-
21 GC Exh 19. "A Guide to Child Labor Provisions of the Fair Labor
Standards Act "
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's secretary, particularly before actually discharg-
ing these employees. In this connection, it is also notewor-
thy that the caller in the telephone conversation sought to
speak to Reuben Lara. Again, it would seem logical that
Salinas, upon learning of the conversation from Clark,
would have talked to Lara to see if he could shed some light
on the situation. This he did not do. 4 Beyond all the forego-
ing, it is clear that Rodriguez' job on the loading dock was
not one of those declared to be hazardous under the provi-
sions of the Fair Labor Standards Act. Considering the
many years that Respondent has been in business, it is
doubtful, to say the least, that Respondent would not have
been familiar with the law. In any event, and without fur-
ther comment as to Respondent's misapplication of the Fair
Labor Standards Act, I do not credit the reason given by
Respondent for Rodriguez' discharge, but find that he was
discharged for reasons related to his union activities. Direct
evidence of such unlawful motivation is shown by the state-
ments made by Respondent's supervisors to Rodriguez and
another minor employee prior to their January 15 termina-
tion.25 I have previously set forth Respondent's unlawful
interrogation of Rodriguez and Supervisor Garcia's state-
ments to him that he would be fired because of his union
activities. Ramiro Perez, Jr., also a minor, was similarly
approached by Supervisor Hector Garcia on the loading
dock about 2 or 3 days before the election. On this occasion
Garcia asked if he did not know that the minors were going
to be fired. Perez said that he could do nothing about it.
Garcia asked if he was with the Union. Perez answered,
"[y]es." Garcia then stated, "y]ou're going to be fired,
too."' Accordingly, and as indicated above, I find that Re-
spondent's discharge of Felix Rodriguez, Jr., was in viola-
tion of Section 8(a)(3) of the Act. 7 It is also found that
Respondent's conduct, by Hector Garcia, in interrogating
employees concerning their union activity and telling em-
ployees that they would be fired if the Union won the elec-
tion or because they supported the Union was violative of
Section 8(a)(l ) of the Act.
H. Mario Moncivais
Mario Moncivais was 14 years of age when he began
working in Respondent's maintenance department in 1969.
After becoming a local truckdriver in October 1975, he
started working as an over-the-road driver in June 1976.
2Reuben Lara was not called to testify.
2" This does not include certain damaging statements alleged to have been
made by Juan Bautista to Gerardo Landeros, one of the minors who was
terminated. Although the General Counsel amended the complaint to allege
Bautista as being a supervisor within the meaning of the Act, the testimony
reflects only that Bautista directed other employees in their work when Gar-
cia was not present. However, the employee who so testified stated that
Garcia was present most of the time. There being no other evidence to
establish that Bautista was a supervisor, I find that the General Counsel has
not sustained his burden as to this allegation.
2- The undenied testimony of Perez.
27 During the hearing General Counsel, with the Charging Party's ap-
proval, withdrew the cases of three other minors who were named as dis-
cnminatees in the complaint. These were Gerardo Landeros, Ramiro Perez,
Jr., and David Lara. Whatever the reason for this action, and no specific
reason was given, I nevertheless have decided the case of Felix Rodriguez onits own merits. The fact that the General Counsel had some reason for
withdrawing the other alleged discriminatees is no reason, as the Respondent
apparently contends, for me to draw an adverse inference as to the case of
Rodriguez.
During the summer of 1976 he averaged three trips a week.
When he returned to school in September, Supervisor Ar-
mando Garcia permitted him to continue working part time
as a helper, this entailing a weekly trip to Corpus Christi,
Texas, on Saturdays.
Mario, as he will be referred to because there are other
Moncivais brothers involved in this case, signed a union
card in November 1976 and thereafter attended union
meetings. On an occasion in December 1976, Mario went to
Garcia's office to pick up a check. Garcia at this time asked
whether he was with the "good guys" or with the bad guys.
Mario responded that he was with the good guys.2 " Under
the entire circumstances of this case, it is clear and I find
that Garcia and Mario understood that reference to good or
bad guys dealt with the subject of the union campaign.
About the first week of April 1977, Mario went to see
Garcia about getting a trip. On this occasion, which was the
last time Mario saw Garcia in person, Garcia told Mario
that because of all this bullshit about the Union he was
going to fire all the Moncivaises of whom there were three
brothers] along with the truckdrivers. He also stated that
this would happen because the Moncivaises were respon-
sible for bringing in the Union.29 At the end of the conver-
sation Garcia told Mario to see the office receptionist about
getting a trip. When he did, she told him that he "couldn't
have a trip."
Following the above conversation. Mario waited for
about 3 weeks without getting a trip. He finally called Gar-
cia's assistant, Rudy Barrera. When he inquired about get-
ting a trip, Barrera was of no help except to comment that
he ought to "get the picture." Mario thereupon called Gar-
cia and asked the same question about getting a trip. To
this Garcia responded by saying that he had "only leftovers
for the Moncivaises" and that he no longer had a job for
him. With this, Mario was obviously terminated, for he
never received any trips thereafter.
Garcia gave two highly inconsistent reasons for Mario's
termination. Thus he testified that Mario was let go "be-
cause we had to eliminate all the other under 18 personnel,
and he was under 18," but then he said, "[We needed to
eliminate all the part-time drivers and hire more full-time
drivers." I do not believe that Mario was terminated for
either of these reasons. Indeed, little need be added to the
statement made by Garcia to Mario to the clear effect that
he was being terminated because the Moncivaises were re-
sponsible for bringing the Union in. This being the reason
for Mario's termination, as I find it to be, Respondent
thereby violated Section 8(a)() and (3) of the Act. 0
I. The Discharges of Eight Truckdrivers on April 29, 1977
1. Background
Respondent terminated the following truckdrivers on
April 29, 1977: Oscar E. Martinez, Alfredo Moncivais,
Undenied testimony of Mario.
:9 Although Garcia in effect denied ever talking to Mario about the Union,
I credit the testimony of Mano as cited above.
While it is hardly necessary to buttress this finding, with reference to the
reason given that Mario was one of the under-18 personnel it is noteworthy
that the other employees in this category were discharged on January 15,
1977. Moreover, since Mario testified that he was 14 years of age when hired
in 1975, it appears that he was well over 18 when terminated in April 1977.
196
LAREDO PACKING COMPANY
Samuel Medina, Jr., Jose Escamilla, Jaime Galvan, Jr.,
Gregorio Juarez, Jr., and Juan Ramon Macias. Although
the eighth driver, Abel Hinojosa. was not terminated until
May 6, 1977, he was assertedly terminated for the same
reason as the others and his case will be included in the
group consideration. The reason given by Respondent for
the termination of these employees, which will be dealt with
more fully later in this Decision. is that it was notified by its
insurer that these drivers were no longer insurable. I shall
first set forth the pertinent background.
Oscar Martinez was employed by Respondent as a truck-
driver since March 23, 1972. Like all the truckdrivers here-
inafter discussed, Martinez worked under the supervision of
Armando Garcia. In discussing the case of Ignacio Santos,
supra, I have already noted how Martinez was interrogated
by Garcia in November 1976, and how Garcia at that time
asked him to keep an eye on other employees and to let him
know if they were active in the Union. During this conver-
sation Garcia also told Martinez that he had a list of several
truckdrivers and kill-floor employees who had signed cards.
Martinez credibly testified that on several occasions after
that Garcia asked if he had information about other em-
ployees, but that he said no. In addition, in late December
1976, Garcia told Martinez that he had spoken to other
truckdrivers, namely, Jesus Ramon, Carlos Martinez, and
Felipo Elizondo, and had requested them to try to obtain
the same information for him.
On Sunday, April 17, 1977, Martinez went to a union
meeting. At the time he left his children with his parents.
When one of his children became ill, Sylvia Gutierrez, who
is the Martinez' sister and also the former wife of Armando
Garcia, telephoned Garcia and asked if Martinez had gone
to a company meeting. She did this because although she
knew that Martinez had gone to a meeting, she did not
know he had gone to a union meeting. In any event, Garcia
told Gutierrez that the Company did not have a meeting
and that he probably was at a union meeting. Having thus
learned that Martinez was at a union meeting, Garcia
called Martinez later the same day and asked how the
meeting had gone. When Martinez replied "all right," Gar-
cia asked if the Union would give them lots of benefits.
Martinez said, "Yes, everything looks okay in the contract."
According to the credited testimony of Martinez, Garcia
then stated, "Well, right now I never figured you would be
participating in the union activity and all that because I
had trusted you in helping me out with the supporting-or
finding out who were involved in the union and it seems
you were with it, too. As of right now I know where you
stand." Additionally, Martinez related that during this con-
versation Garcia also stated that he had a list of truckdriv-
ers, that he (Martinez) now was involved, that he had 50
applications, and that if there were any changes he was not
to get his hopes too high.
Alfredo Moncivais was employed as a truckdriver since
1967. An active union supporter, Moncivais attended union
meetings and early in the organizational campaign solicited
employees to sign union cards. Although Moncivais himself
was never interrogated or threatened, it will be recalled he
was one of the two employees whom Garcia asked Oscar
Martinez to keep an eye on concerning their involvement
with union activities.
Moncivais testified that in about mid-December 1976, he
and 10 or 15 other employees were called into the gym in
the presence of the Salinas brothers and two other supervi-
sors. According to Moncivais, Roberto Salinas at this time
stated that if the Union came into his plant he would rather
shut it down and that he would make his best efforts to fire
all the guys involved with the Union. He also said that he
was not going to permit outsiders to come in and tell him
how to run his company. Roberto Salinas emphatically de-
nied ever telling Moncivais or anyone else that he would
close the plant if the Union came in or that he would make
his best effort to fire all the people involved with the Union.
I was impressed with Salinas' denial of all the foregoing and
I credit his testimony to this effect. Moreover, although
Moncivais testified that 10 or 15 employees were present, it
is noteworthy that no other witnesses corroborated his testi-
mony as to Salinas' alleged threats. Indeed, Gregorio Jua-
rez, an older truckdriver and the only other employee to
testify concerning this meeting, testified as follows:
Roberto Salinas addressed us and told us that the
Union had taken them by surprise and since we were
the workers who had been working longer, he wanted
us to assist him, to help him, to assist him in advising
the younger workers there, the people who were newer
there to vote against the Union. That's all he said. [Em-
phasis supplied.]
In short, I do not credit the testimony of Moncivais con-
cerning the threats he asserted that Salinas made at this
time.
Samuel Medina, Jr., was employed as a truckdriver since
January 21, 1974. He signed a union card on December 18,
1976, and thereafter attended all the union meetings. No
supervisor ever spoke to him about the Union or his union
activities prior to his termination.
Medina testified that on May 2, the date of his termina-
tion, he went to see Garcia after having been informed by
Juan Macias that he would be terminated. He said that he
knocked on the door of Garcia's office and that Garcia told
him to come in and sit down. According to Medina, Garcia
was in the midst of a telephone conversation when he en-
tered. Medina's further testimony concerning this incident
was as follows:
I took a seat there and he kept talking to this other
person on the telephone.
I heard him tell the other person on the telephone
that he needed truck drivers. He told this person on the
telephone that he was hoping and praying that he
could get rid of the truck drivers that he had. He told
again this person on the telephone that he wanted to
get rid and finish up with all of the truck drivers that
he had because they were participating in the union.
* * * . *
He told this person again on the telephone not to
forget that he needed truck drivers and that all the
truck driver needed was just a driver's license.
Garcia denied having had any telephone conversation
wherein he made statements of this nature. Although he
said he did make calls to the Texas Employment Agency
197
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to procuring new drivers, he denied making
any such calls in the presence of any of the drivers. Al-
though I have discredited much of Garcia's testimony in
this case, in this instance I do not credit the testimony of
Medina as quoted above. Notwithstanding that Garcia
openly interrogated and threatened other employees con-
cerning their union activities, I cannot and do not believe
that Garcia was so naive or foolish as to invite Medina to
sit down in his office and then in his presence proceed to
state to the other person on the phone that he was discharg-
ing the drivers because of their union activities.
Jose Escamilla was employed since September 17, 1976,
as a truckdriver helper. He attended several union meetings
and signed a union card.
In November 1976. Garcia asked Escamilla if he was
aware that the employees were trying to get a union in the
plant. Escamilla said that he was, but that only the inside
employees were trying to organize. Garcia stated that there
was no way the Company would allow the Union to come
in and asked if he would help him "to go against the
union." Escamilla replied that it was "all right," that he
agreed with his idea.
Jaime Galvan, Jr., was employed as a truckdriver since
January 21, 1974. He attended union meetings in the fall of
1976 and signed a union card on December 18, 1976.
In late December 1976, Garcia told Galvan that he heard
the truckdrivers were responsible for bringing the Union in
and asked if he knew anything about it. Galvan said no. He
then told Galvan that he wanted him to be on the Compa-
ny's side because the Union was no good.
Garcia called Galvan over the telephone and told him
that he was being terminated because of the insurance
problem. Galvan came to pick up his check a day or two
later, at which time he went to the office and saw Garcia.
Upon receiving his check, Galvan asked Garcia how long it
would take "to work something out." Garcia asked, "How
many tickets do you have?" Galvan said, "Around six."
According to the credited testimony of Galvan, Garcia then
said, "Well, don't even think about it. Maybe by that time I
won't be here myself, that's what you get for going with the
union. Go to the little people in the union and see if they
can't help you." Garcia then referred him to Leda's office if
he wished to see his traffic record.'
Gregorio Juarez, Jr., was employed with Respondent
since July 25, 1955, and was a truckdriver at the times ma-
terial hereto. He signed a union card on November 10,
1976, and thereafter attended several union meetings.
Juarez testified concerning an alleged conversation he
had with one Victor Saucedo in December 1976 wherein
Saucedo told him that he could not hunt on the Salinases'
property that year because he was a union supporter. At the
hearing the General Counsel amended the complaint to al-
lege Saucedo as being a supervisor within the meaning of
the Act. Respondent denied this allegation. Juarez testified
that he did not know whether Saucedo was a supervisor or
not, but said that "he is very close to the office personnel."
He added that he previously knew him to be "a worker in
the warehouse." Other than conclusionary testimony by
Manuel Olivares and Abel Hinojosa that Saucedo was "a
1I I do not credit Garcia's testimony that the Union was never mentioned
during this discussion.
supervisor in the warehouse" the supervisory status of Sau-
cedo was not litigated. There being no evidence that Sau-
cedo held any indicia of supervisory authority, Juarez' testi-
mony concerning this incident is not binding upon
Respondent. 2
Other than the foregoing, it will be recalled that Oscar
Martinez was told by Garcia to keep an eye on Juarez, Jr.,
with respect to his union activities.
Abel Hinojosa was employed as a truckdriver since Au-
gust 10, 1975. He signed a union card in November 1976,
and thereafter attended a number of union meetings. Other
than to testify concerning a conversation with Victor Sau-
cedo, whose supervisory status was not established, Hino-
josa did not have any conversation with any Respondent
supervisor concerning his union activities.
Juan Ramon Macias was a truckdriver with Respondent
from August 28, 1974, until April 29, 1977. An active union
supporter, Macias attended union meetings, signed a card,
and testified that he went to the homes of other employees
to solicit them to sign union cards.
Macias testified that he attended a union meeting at the
Carpenters Hall on April 17, 1977. With Union Represent-
ative Rendon and 35 or 40 employees present, this meeting
concerned Respondent's latest offer during contract nego-
tiations which were then taking place. The following day
Garcia took Macias aside and said he wanted to talk to
him. Macias testified that the following conversation en-
sued.
We were talking outside the office. He told me that
he had been told that I was the one who was speaking
more for the union than anybody else, that I was the
one that was asking for too much. That I was the one
that was pushing the rest of the truck drivers to join
the union.
So he told me to be sure to get my ass straight or
that I would be faced with some trouble. This was just
a warning. I told him I didn't know what he was talk-
ing about. He told me that I knew very well what he
was talking about and for me to be careful.
Concerning that part of his above testimony that he was
"speaking more for the union," Macias further clarified this
by saying, "Yes he was referring to the meeting of the pre-
vious day and that he knew that I had made more demands
than what we were being given, more than what was of-
fered."
Garcia denied ever having a conversation with Macias
and testified, "I don't like that gentleman myself, and I try
to talk to him the least possible." From my observation of
the witnesses, and in the context of the entire record as it
concerns Garcia, I credit the testimony of Macias.
2. Respondent's defense; conclusions as to the
termination of the truckdrivers
As will be further explicated below, the record clearly
shows that the General Counsel has established a strong
prima facie case in support of the complaint's allegation
2 It is recommended that all 8(aX)1) allegations as to Saucedo be dis-
missed.
198
LAREDO PACKING COMPANY
that the truckdrivers under consideration were terminated
in violation of the Act. But I turn first to Respondent's
defense, which is that it terminated these employees when it
received notification from its insurer that they had become
uninsurable. This notification was in the form of a letter
addressed to Respondent's President Salinas dated April 26,
1977. It stated as follows:
Dear Roberto:
I have received a letter from the Firemen's Fund In-
surance Company requesting the exclusions of the fol-
lowing drivers from your policy: Epigmenio Oscar
Martinez, Jr., Alfredo Moncivais, Jose Escamilla, Sam-
uel Medina, Gregorio Juarez, Abel Hinojosa, Fran-
cisco Cabello, Jaime Galvan, Jr. and Juan Macias.
As you well know your automobile experience has not
been good for the past three years. Your Experience
Modifier went up five points, from 177% Debit to 182%
Debit.
We must insist that you return the Exclusion Forms
TX03-60A on the above named drivers no later than
the first of May.
I have enclosed copies of the Motor Vehicle Records
on the above named drivers for your information and I
trust that in reviewing the drivers records you will rec-
ognize the urgency of the situation.
SINCERELY,
J. C. MARTIN III
INSURANCE ASSOCIATES, INC.
Under normal circumstances, Respondent's defense on
its face would appear to be meritorious. A scrutiny of the
entire record, however, convinces me that absent antiunion
motivation Respondent would not have discharged these
drivers so promptly without, at the very least, having first
taken some further action in an effort to retain these mostly
senior and experienced employees,"3 some of whom were
admittedly described as Respondent's best drivers.' The
first consideration for my so concluding is that there is di-
rect evidence pointing to the fact that Respondent dis-
charged these employees in retaliation for their known or
suspected union activities and support of the Union. The
background of Respondent's coercive conduct against its
employees, including the truckdrivers, in the fall of 1976
has been previously related and will not be restated at this
point. Specifically, however, it is particularly significant to
"3 Except for Jose Escamilla, hired in September 1976 and Abel Hinojosa,
hired in August 1975, the others were senior employees.
la The evidence does not, however, support a finding of collusion between
Respondent and its insurer. As part of the facts of this case, however, I
should note that the letter from the Fireman's Insurance Company. referred
to in the April 26, 1977, letter, above, was not introduced in evidence. Also
not explored further was the fact that the exclusion forms reflect the name of
the insurance company as being the National Surety Corporation, although
Insurance Associates, Inc. is named as its duly authonzed representative.
Insofar as past practice is concerned. the evidence reflects that in the past
Respondent terminated other drivers upon receiving notice of their uninsura-
bility, although in most cases the drivers were given other employment with
Respondent until they again become insurable. However, it is also interest-
ing to note that in the past Respondent at most had been called upon to
exclude one or two drivers from the insurance policy, whereas eight were
terminated for the period in question. Nonetheless, without any thing further,
I do not rely on this as a decisional factor in the issue at hand.
recall that at this time Garcia was keeping the truckdrivers
under surveillance. This was evidenced by Garcia's telling
employees Oscar Martinez and Juan Melendez that he had
a list of the employees, including the truckdrivers, who had
signed cards or who were for the Union. But getting to the
direct evidence, there is first the testimony of Mario Monci-
vais, whose unlawful termination was clearly established,
concerning a conversation he had with Garcia in the first
week of April 1977, which bears repeating here. It was dur-
ing this conversation that Garcia told Mario that he was
going to fire all the Moncivaises along with the truckdrivers
because they were responsible for bringing in the Union.
Clearly, this testimony is direct evidence that the discharge
of the truckdrivers which followed but 3 weeks thereafter
was an unlawful implementation of Garcia's prediction.
Second, and further indicative of Respondent's intentions,
was Garcia's statement to Oscar Martinez on April 17,
1977, in the context of Garcia's then having learned for the
first time that Martinez had attended a union meeting and
that he was a prounion employee, that he had 50 applica-
tions and that he (Martinez) was not to get his hopes too
high if any changes were made. Thirdly, there was Garcia's
threatening statement to Juan Macias. the day after he at-
tended the April 17, 1977, union meeting, that this was a
warning for him to get his ass straight or he would be in
trouble. Finally, and this indeed was tantamount to an ad-
mission that the truckdrivers were terminated because of
their union activities, was Garcia's statement to Galvan at
the time of Galvan's termination that "that's what you get
for going with the union . . . go to the little people in the
union and see if they can't help you out."
Apart from the foregoing direct evidence of discrimina-
tion, not to mention the numerous other unfair labor prac-
tices found herein, the evidence reflects that two of the dis-
chargees admittedly included Respondent's two best
drivers. Garcia testified, "Him [Alfredo Moncivais] and
Gregorio Juarez, those were my best drivers." With respect
to Alfredo Moncivais he further testified that he was "a
damn good driver, he was my best driver." The point to be
made is that I find it difficult to believe that Respondent
would terminate these senior, best qualified drivers, along
with the others, on the mere receipt of the aforequoted let-
ter without first exploring some other avenues of retaining
them. There is indeed evidence that some other steps could
have first been taken, for Garcia himself testified that when
Alfredo Moncivais asked what could be done about his ter-
mination, he told Moncivais "we're going to check and see
what we can do about the insurance and in the meanwhile ...
why don't you take your vacation, and then check with me
and see if there's anything we can do."3 Notwithstanding
this clear indication that Respondent could take further
steps before finally discharging these employees, the fact is
there is no evidence whatsoever to indicate that it did. Had
it done so, the bonafides of Respondent's motives may well
have been established. But its failure in this respect, in my
view, serves but to buttress the strong primafacie case that
13 And similarly, Juan Macias testified that when notified of his termina-
tion, "Garcia told us that he was going to look and see what arrangements he
could make ith the insurance company and in the meantime we should take
our vacations and we would be laid off later."
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharges of these employees were discriminatorily mo-
tivated.6
There remains for consideration a further facet of Re-
spondent's defense. Respondent contends that demonstra-
tive of its good faith in discharging the truckdrivers for the
reason given is that it allegedly offered the drivers other
jobs when the discharges were effected. In this regard, it is
undisputed that at about the time of the terminations
Union Representative Erbey Rendon came to the plant
and, after some discussion, reached an agreement with
President Roberto Salinas that Respondent would find jobs
for the terminated drivers on the kill floor as soon as such
jobs would become available. Concerning Respondent's
compliance with this agreement, the record shows as fol-
lows: Escamilla, Galvan, and Juarez were offered and ac-
cepted jobs on the kill floor. However, because they found
the work disagreeable, they quit after working for periods
of from 1 day to 3 weeks. Hinojosa was offered a laborer's
job 4 weeks after he was terminated but did not accept it
because it involved a reduction in pay. Medina testified that
when he went to the plant he was told that Leda was sup-
posed to contact him for a job, but that he never did. Maci-
as came to the plant and spoke to Roberto Salinas. Salinas
told Macias that he would be called as soon as an opening
occurred on the kill floor. According to the unrefuted testi-
mony of Macias, he was not called and was never thereafter
offered a job. As to Alfredo Moncivais and Oscar Martinez,
the testimony reflects that these employees were never of-
fered a job. Accordingly, since the record reflects, and I
find, that four of the eight truckdrivers were not offered
jobs following their termination, Respondent's asserted
good-faith defense in allegedly offering all of them jobs
does not stand up. I am, therefore, impelled to find that
while the principle of Respondent's defense may be well
taken, it is factually without merit.
In sum, and in view of (1) Respondent's surveillance of
the truckdrivers' union activities; (2) its threats to discharge
the truckdrivers because of their union activities; (3) its ad-
mission to one of the truckdrivers that his union activity
was a reason for his discharge; (4) its failure to follow up on
its assurance to two aforenamed truckdrivers that it would
see what it could do about the insurance problem; and (5)
in the context of its numerous other violations of Section
8(a)(l) and (3) of the Act, including discrimination against
Mario Moncivais, I conclude and find that the termination
of the truckdrivers, at least in substantial part, was in retali-
ation for their union activities and support of the Union.
Respondent thereby violated Section 8(a)(3) and () of the
Act. I further find the other coercive conduct hereinabove
described, except for that noted in the footnote below, to be
independently violative of Section 8(a)(1) of the Act.37
36 Although the question of insurability does not appear to have been
involved at the time, it is noteworthy that Respondent had retained Alfredo
Moncivais in its employ notwithstanding the fact that in 1974 or 1975 a
judge had placed him on probation because of a traffic violation.
" The unfair labor practice charge pertaining to the termination of the
truckdrivers was filed on October 5, 1977, in Case 23-CA-6762. Apparently
because he considered it to be a 10(b) problem, the General Counsel did not
allege in the complaint any conduct occurring in the fall of 1976, based upon
the heretofore related testimony of the truckdrivers, as being independently
violative of the Act. In fact, at the hearing the General Counsel specifically
disavowed any intention of so amending the complaint and asserted that he
J. The Alleged Reduction in Hours of Work of Certain
Truckdrivers; Alleged Heavier Workloads
The complaint in Case 23-CA-6797 alleges that on or
about the latter part of September 1977 Respondent re-
duced the hours of work of the following truckdrivers: Juan
Melendez, Juan Ramon Quintana, Alberto Garcia, and
Felipo Elizondo.38
The pertinent background facts are as follows: Employed
since June 1, 1975, Melendez signed a union card in Febru-
ary or March of 1977 and thereafter attended union meet-
ings. In the middle of September 1977, Respondent was
informed that he had been designated a union steward.
Without relating the details, suffice it to note that in De-
cember 1976, Melendez was interrogated by Supervisor
Hector Garcia concerning his attendance at a union meet-
ing (Garcia also told him that he knew he had attended the
meeting) and his signing of a union authorization card.39
Quintana was employed by Respondent since May 9, 1971,
signed a union card, and attended all union meetings. Al-
berto Garcia was employed since June 16, 1975, signed a
union card in December 1976, and thereafter attended sev-
eral union meetings. In September 1976, Supervisor Ar-
mando Garcia interrogated Garcia as to his knowledge of
union activities, as to whether any of the truckdrivers were
participating in such activities and as to whether any of
them had signed union cards. 0
Shortly after September 9, 1977, the Union provided Re-
spondent with a list of employees who had signed union
cards.4' It is the General Counsel's contention that the al-
leged reduction of hours of the alleged discriminatees oc-
curred simultaneously with the submission of this list, that
the hours of the nonunion employees were not similarly
reduced, and that hence discrimination is established. In
support of this allegation, Melendez, Quintana, and Garcia
testified that they did not receive as many trips after about
the middle of September 1977 as they did prior thereto, but
that more trips were given to the recently hired nonunion
employees than were given to them.
Subsequent to the close of the hearing, the General
Counsel and the Respondent submitted Joint Exhibit 1,
hereby received in evidence, which reflects the total number
of hours worked per week, including overtime, from the
week of April 29, 1977, through the week ending December
30, 1977. Although the parties did not submit their respec-
tive analysis or interpretation of this material, I set forth
below the summaries which I have prepared showing the
total number of hours worked between the period of the
week ending September 23, 1977, through the week ending
was introducing the testimony covering this period for background purposes
only. I have, accordingly, received and considered it only for that purpose.
In any event, any coercive conduct involving the truckdrivers in the fall of
1976 would not add to the remedial provisions of this Decision, as based
upon the other unfair labor practices herein found.
' Elizondo did not testify and he was not discussed or mentioned in the
General Counsel's brief. It therefore appearing that the General Counsel has
abandoned the case of this employee, it is recommended that the allegation
pertaining to him be dismissed.
" The matter is outside the 10(b) period and is not alleged in the com-
plaint.
4 The preceding footnote is also applicable here.
" Stipulation of the parties, R-834.
200
LAREDO PACKING COMPANY
December 30, 1977. As indicated these are separately noted
for the three alleged discriminatees, the other union em-
ployees who are not named in the complaint, and the non-
union employees.
Discriminatees
Garcia
Melendez
Quintana
F. Elizondo
Unions'
Aguilar
Blanco
O. Elizondo
Lares
Melendez
Morales
J. Venegas
T. Venagas
Nonunion
Gaona
Jiminez
Lopez
Pompa
Santana
Munoz
584
675
63642
726
709
721
739
681
640
594
807
699
759
658
715
777
695
697
Upon examination of the foregoing, it becomes apparent
that some degree of discrimination might be established if
only hours worked by the three named alleged discrimi-
natees are compared with the nonunion employees. How-
ever, the General Counsel's case of discrimination quite ob-
viously rests with his selection of these three particular
union employees for comparison with the nonunion em-
ployees. Absent a showing that Respondent had some mo-
tive to uniquely discriminate against these employees as
apart from the other union drivers, and there is none, there
is no objective basis for finding discrimination against the
three named in the complaint. This must follow since the
data submitted shows that on the whole the eight other
union employees worked just as many hours as did the six
nonunion employees. Indeed, J. Venegas, a senior and a
union employee employed since February 7, 1965, worked
more hours than did any of the nonunion employees. Ac-
cordingly, and by reason of all the foregoing, it is recom-
mended that this allegation be dismissed.
With respect to the same three employees named above,
the complaint further alleges that Respondent discrimina-
torily assigned them heavier workloads without assistance.
In support of this allegation, Juan R. Quintana testified to
the effect that in September 1977 he made three or four
trips without the assistance of a helper. Since he was usu-
ally assigned a helper, the effect on these occasions was to
make his work more onerous. Other than to have signed a
union card and to have attended some union meetings,
Quintana was not shown to have been particularly active in
union activities. He was not, as were many other of the
42 L. Aguilar and A. Lares did not become union members until November
10, 1977, at which time Respondent was so notified.
"' J. Quintana is shown to have been on vacation for part of 2 days in
October 1977.
employees, in any way approached by Respondent con-
cerning the Union or union activities. The General Counsel
has not shown any reason for Respondent to select Quin-
tana, among all the other drivers, for particular discrimina-
tion in the manner alleged. The only other testimony con-
cerning this allegation was that of Alberto Garcia, who
testified that in November 1977 he was assigned a heavy
load with I stops without a helper. Again, there is no rea-
son shown why Respondent would discriminate against
Garcia on this isolated occasion in November 1977, which
was long after it received a list of the union drivers. What-
ever suspicions may attach itself to the foregoing, I am con-
vinced and find that the General Counsel has not proved
the allegation in question by a preponderance of the evi-
dence. It will therefore be recommended that this allegation
be dismissed.
K. The Alleged 8(a)(4) Violations; Jose Villarreal
The complaint in Case 23-CA-6762 alleges that Respon-
dent discharged Jose Villarreal on September 20, 1977, in
violation of Section 8(aX4) and (1) of the Act.
Employed from May 24, 1975, until he was terminated
on September 19, 1977, Villarreal worked as a meat packer
in the boning department under the supervision of Santos
Garcia. Although only 15 years of age when he was first
employed, Villarreal stated his birthdate on his employ-
ment application as being May 15, 1958, instead of his cor-
rect birthdate, which was May 15, 1960. As previously re-
lated, the other minors were terminated on January 15,
1977. Villarreal was not, apparently because of his misstat-
ed age.
On January 24, 1977, Pedro Garza, who worked in per-
sonnel, told Villarreal that his application had been lost and
asked that he file a new one. Villarreal did so and at this
time stated his correct age on the application. He submitted
the application to Pedro Garza.
The hearing in this proceeding began on August 23, 1977,
and continued through August 26, 1977, at which time it
was adjourned. Subpoenaed by the General Counsel on
August 9, 1977, Villarreal appeared at the hearing for 3
days beginning on August 23. Although he did not testify
during this period, it is undisputed that he showed his sub-
poena to a supervisor and that he was observed at the hear-
ing by at least one Company official.
Shortly after the conclusion of the hearing on August 26,
Respondent's counsel raised a question with President Ro-
berto Salinas, who had attended the hearing during the pe-
riod in question, as to the identity of Villarreal. He also
asked that this employee's file be checked.4 According to
4 The foregoing was brought out in the direct examination of Salinas as
follows:
Q. All right. Do you recall how it was brought to your attention in
September of 1977 that Mr. Villarreal possibly may still be under the
age of 18 and yet still employed by the company?
A. It was dunng one of these hearings that you questioned me about
who is that, and I said I don't know. And we checked on him, and he
was not on the list that were called for witnesses. That's what I recall
about that.
Q. So, at my request, you went back and searched some files and
found Mr. Villarreal's file?
A. Right.
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, upon checking Villarreal's file it learned for
the first time that Villarreal was underage. It is undisputed
that Respondent terminated Villarreal on September 19,
1977, for the asserted reason that he was underage.
Upon all the foregoing, it is clear that Villarreal would
not have been terminated but for his appearance under sub-
poena to testify on behalf of the General Counsel on the
dates indicated in August 1977. But beyond this, and point-
ing to Respondent's unlawful motive in discharging this
employee at this time, is the fact that Respondent retained
Villarreal in its employ notwithstanding that it in fact knew
of Villarreal's true age prior to his appearance at the hear-
ing. Although Respondent denies such prior knowledge, the
facts reflect otherwise. In the first place, it is undisputed
that Villarreal's actual age was stated on the second appli-
cation which Villarreal submitted in January 1977. Addi-
tionally, Villarreal testified without contradiction that he
revealed his true age to Supervisor Hector Garcia about 6
to 7 months after he first began his employment in May
1975. But even assuming that the foregoing did not come to
the attention of Respondent's higher officials on the occa-
sions indicated, the credible testimony reflects that the
problem of Villarreal's age was revealed to it during a meet-
ing held on February 11, 1977, at which time Union Repre-
sentative Erbey Rendon and the Union's attorney met with
Roberto Salinas and two of Respondent's attorneys for the
purpose of discussing various of the discharges which had
then taken place. Rendon credibly testified that during this
meeting he raised the question of Villarreal's age by asking
why Villarreal had not been discharged in January 1977
along with the other minors."' Accordingly, if Respondent
was objectively concerned about retaining minors in its em-
ploy, it surely was put on notice at this time that a problem
existed in this respect as to Villarreal.
Upon all the foregoing, I conclude and find that Respon-
dent's termination of Villarreal on September 19, 1977, was
violative of Section 8(a)(4) and (1) of the Act.
L. Alleged Unilateral Conduct
The complaint in Case 23-CA-6797 alleges that Respon-
dent violated Section 8(a)() and (5) of the Act by unilater-
ally granting a wage increase in August 1977. That a wage
increase in fact was given in July or August 1977 to 15 or 30
employees is not disputed. Concerning this wage increase,
Union Representative Rendon testified without contradic-
tion that on the evening of July 27, 1977, following a day of
contract negotiations, Respondent's attorney telephoned
and asked if Respondent could implement the wage in-
crease as provided in the Company's latest contract pro-
posal. Rendon, who was with the union attorney who re-
ceived the call, told the attorney he would not agree
1s Respondent's basis for discharging the employees under 18 has been
discussed in this Decision under the heading "Felix Rodriguez. Jr., supra.
4 Respondent's brief states, "Salinas testified that the union representa-
tives refused to submit [at this meeting] the name of the individual to the
Company representatives." This is not in accord with the record. Thus, on
direct examination Roberto Salinas testified that he recalled its being men-
tioned at the February 11, 1977, meeting that the Company still had an
individual in its employ who was under the age of 18 and that someone
asked that this individual be named. When then asked if he recalled any
response to the latter question, Salinas simply responded that he did not
recall.
because they were still in contract negotiations. The attor-
ney thereupon told Respondent's attorney that he would
not agree. As indicated, Respondent nevertheless granted
the wage increase notwithstanding the fact that the Union
did not agree. Inasmuch as the wage increase was imple-
mented even though the parties had not reached an im-
passe, it is clear that by such unilateral action Respondent
violated Section 8(a)(5) of the Act."
7 I so find.
It is further alleged in the complaint that in the latter
part of September 1977 Respondent unilaterally changed
the seniority provision in the collective-bargaining agree-
ment which was executed on September 9, 1977. Article V
thereof, the provision referred to, provides in substance that
seniority shall be considered as a factor in its "promotions,
demotions, lay offs and recalls after layoffs." There being
no evidence to support this allegation, it is recommended
that it be dismissed.4
It is finally alleged that in the latter part of September
1977 Respondent unilaterally changed the driver and helper
schedule set forth in Appendix B of the contract. This alle-
gation pertains to the testimony, cited in Section J herein,
of Quintana that he made three or four trips in September
1977 without a helper and of Alberto Garcia that in No-
vember 1977 he was assigned a heavy load without a
helper. Assuming that these isolated instances were not in
strict accord with the contractual provisions, it is well estab-
lished that a breach of contract is not ipso facto an unfair
labor practice. 49 Moreover, I think it relevant that there is
no evidence that the Union sought to police or enforce the
contract by protesting or discussing the matter with the
Company. Accordingly, and since this matter was relatively
isolated and does not appear to have "a continuing impact
on a basic term or condition of employment,"
T0 it is recom-
mended that the allegation be dismissed.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section 1II,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
47 N.L.R.B. v. Bennie Katz, d/b/a Williamsburg Steel Products Co., 369
U.s. 736 (1962).
41 In his brief the General Counsel argues that this provision is applicable
to the assignments of trips, and recites the same facts with respect to the
alleged reduction of hours of certain truckdrivers as discussed in the preced-
ing section. Assuming arguendo that Article V means that senionty should be
applied to the assignment of trips, for the same reasons heretofore stated, I
would find that the evidence does not support this allegation.
#9 United Parkinghouse Workers of America, CIO, and Locals 49, et al.
(Wilson Co., Inc.), 89 NLRB 310 (1950); American Vitrified Products Com-
pany, 127 NLRB 701 (1960).
so C & S Industries, Inc., 158 NLRB 454 (1966).
'' A different conclusion might well have been reached if the Union had
indeed protested the matter with the Respondent but Respondent nonethe-
less continued the practice.
202
LAREDO PACKING COMPANY
V. 1IIE REM 1)DY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent discharged Daniel
Mendoza, Rodrigo Gaona. Ignacio Santos, Gerardo
Moncivais, Felix Rodriguez, Oscar E. Martinez, Alfredo
Moncivais, Samuel Medina, Jr., Jose Escamilla. Jaime Gal-
van, Jr., Gregorio Juarez, Jr.. Abel Hinojosa, Juan Ramon
Macias and Mario Moncivais in violation of Section 8(a)(3)
and (I) of the Act, I shall recommended that Respondent
be ordered to offer them full and immediate reinstatement
to their former positions or, if these positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, and to
make them whole for any loss of earnings they may have
suffered from the date of their discharges to the date of
Respondent's offer of reinstatement. Backpay shall be com-
puted in accordance with the formula prescribed in F W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon computed in the manner and amount prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).2 It having
been found that Respondent reduced the hours of Manuel
Olivares in violation of Section 8(a)( ) and (3) of the Act, I
shall recommend that he be made whole for any loss of
earnings he may have suffered therefor.
It having been found that Respondent discharged Jose C.
Villarreal in violation of Section 8(a)(4) and (1) of the Act,
I shall recommend that Respondent offer him full and im-
mediate reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and privi-
leges, and to make him whole for any loss of earnings he
may have suffered from the date of his discharge to the date
of Respondent's offer of reinstatement. Backpay shall be
computed in the manner indicated above.
In view of the nature and extent of the unfair labor prac-
tices herein found, it will be recommended that Respondent
be ordered to cease and desist from in any manner infring-
ing upon the rights guaranteed employees in Section 7 of
the Act.
CONCIL.SIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)( ), (3).
(4), and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent did not discriminate against Juan
Aguilar. Juan Melendez, Juan Ramon Quintana, Alberto
Garcia, and Felipo Elizondo as alleged in the complaint.
52See, generally. Isis Plumbing & Hearing r(o. 138 NLRB 716 (1962).
On the basis of the above findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER '
The Respondent, Laredo Packing Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or reducing the hours of employees, or
in any other manner discriminating against them, because
they engage in union activities or support the Union.
(b) Interrogating its employees concerning their union
activities or their knowledge of the union activities of other
employees.
(c) Threatening its employees that it will close the plant
if they engage in union activity or support the Union.
(d) Threatening to discharge employees because of their
union activities or support of the Union.
(e) Creating the impression of surveillance of its employ-
ees' union activities.
(f) Prohibiting employees from wearing union insignia at
the plant.
(g) Unilaterally granting wage increases to its employees
during bargaining negotiations without consultation or
agreement with the Union.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights protected
under Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer to employees Daniel Mendoza, Rodrigo Gaona,
Gerardo Moncivais, Felix Rodriguez. Oscar E. Martinez.,
Alfredo Moncivais. Samuel Medina, Jr., Jose Escamilla,
Jaime Galvan, Jr., Gregorio Juarez, Jr.. Abel Hinojosa,
Juan Ramon Macias. Mario Moncivais, and Jose Villarreal
immediate and full reinstatement to their former jobs or. if
these positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any' loss of wages
and earnings they may have suffered in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Make Manuel Olivares whole for any loss of wages
and earnings he may have suffered b reason of the dis-
crimination practiced against him.
(c) Preserve and. upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its facility in Laredo. Texas, copies of the
3 In the event no exceptions are filed as provided bh Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, he adopted b the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached notice marked "Appendix." 4 Copies of said no-
tice, which are to be printed in English and Spanish, on
forms provided by the Regional Director for Region 23,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately thereafter, in
4 In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board." shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges the commission by Respondent
of any unfair labor practices not specifically found herein.
204