Orval Kent Food Co.

National Labor Relations Board - Board Decisions

Feb 1, 1984

268 N.L.R.B. 753 (N.L.R.B. 1984)

ORVAL KENT FOOD CO.
Orval Kent Food Company, Inc. and General Team-
sters, Warehousemen and Helpers Union Local
890, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 32-CA-4210
I February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 May 1983 Administrative Law Judge
George Christensen issued the attached decision.
Thereafter, the General Counsel filed exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Orval Kent
Food Company, Inc., Salinas and Imperial, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge:
On November 4 and 5, 1982, I conducted a hearing at
Salinas, California, to try issues raised by a complaint
issued on March 30, 1982, and amended on October 26,
1982, based on a charge filed by Teamsters Local 890
(Union) on January 1, 1982.
The amended complaint alleged Orval Kent Food
Company, Inc. (Company) violated Section 8(aXl) and
(3) of the National Labor Relations Act, as amended
(Act), by: (I) interrogating employee Luz Tanori con-
cerning her reasons for signing a union authorization
card and soliciting her to advise the Company what
grievances were causing employee dissatisfaction and
support of the Union; (2) threatening Tanori with oner-
ous treatment for supporting the Union; (3) reassigning
Tanori to less desirable employment, issuing warning no-
268 NLRB No. 110
tices to her, suspending her, and discharging her, all for
supporting the Union; (4) granting a wage increase to
employees to undermine their support of the Union; and
(5) more stringently enforcing its disciplinary system
after December 1, 1981.
The Company denied the alleged interrogation, solici-
tation, and threat occurred; denied it more stringently
enforced its disciplinary system after December 1, 1981;
denied any discriminatory job reassignment; conceded it
warned, suspended, and discharged Tanori, but denied it
did so because of her union activities; and denied any
wage increases were granted for the purposes of under-
mining employee support of the Union.
The issues for determination are whether:
1. In October 1981,1 Production Manager Robert
Chester, by telephone, interrogated Tanori concerning
her reasons for supporting the Union and solicited her to
ascertain employee grievances and supporting the Union
and solicited her to ascertain employee grievances and
report them to him.
2. On November 6, Chester and Production Supervisor
Sylvia Harvell issued warning notices to and suspended
Tanori because of her union activities.
3. On or about December 15, Production Supervisor
Gilberto Avina threatened Tanori with onerous treat-
ment because of her union activities.
4. On or about December 21, Production Supervisor
Leticia Avina assigned Tanori to a less desirable job than
the one she was performing; on December 23 Assistant
General Manager William Schmidt issued a warning
notice to and suspended Tanori; and on December 31
General Manager David Kent discharged Tanori, all be-
cause of her union activities.
5. Beginning in December, the Company more strin-
gently enforced its disciplinary system because of the
employees' union activities.
6. In early 1982, the Company granted a wage increase
to employees to undermine their support of the Union.
7. By any of the foregoing, the Company violated the
Act.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, to
examine and cross-examine witnesses, to argue, and to
file briefs. A brief was filed by the General Counsel.
Based on my review of the entire record,2 observation
of the witnesses, persual of the brief, analysis and re-
search, I enter the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that at all pertinent times the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization within the mean-
ing of Section 2 of the Act.
Read 1981 after all further date references omitting the year.
The General Counsel's motion to correct the transcript is hereby
noted and corrected.
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a wholly owned subsidiary of Kane
Miller Corporation, a Delaware corporation. At all mate-
rial times, it was engaged in the business of processing
and packing lettuce for sale as shredded lettuce to the
fast food industry and restaurants. The Company con-
ducted operations at Salinas, California, between April
and November and at Imperial California, between De-
cember and March. Its production and maintenance
work force ranged between 30-60 employees on two
work turns, one running from approximately 3 to 11:30
a.m. and the second from approximately noon to 8:30
p.m. An unpaid 30-minute lunchbreak normally was
scheduled midway in each shift and two paid 10-minute
rest breaks normally were scheduled approximately 2
and 6 hours after the start of each shift. The Company
utilized air-conditioned trailers in its operations, moving
them between Salinas and Imperial when it shifted its op-
erations. At times pertinent, David Kent was the Compa-
ny's general manager, William Schmidt was assistant
general manager, Robert Chester was production manag-
er, John Kelly, Sylvia Harvell, Leticia Avina, and Gil-
berto Avina (to December 31) were production supervi-
sors. Kelly acted in Chester's place during his absence. 3
B. The Union's Organizational Campaign
The Union's campaign to organize the Company's pro-
duction and maintenance employees commenced on Oc-
tober 13 with a visit to the Union's business offices by
Luz Tanori, accompanied by her sister Maria Tanori,
Pedro Ponce, Maria Chester (Robert Chester's wife), Su-
pervisor Gilberto Avina, and Supervisor Leticia Avina
(Maria Chester's sister and Gilberto's wife). The incident
which prompted the contact was Luz Tanori's discharge
the preceding day by Supervisor Sylvia Harvell (which
shall be detailed hereafter). Prior to her discharge, Luz
Tanori was an employee of the Company, as was her
sister Maria (Maria quit when Luz was discharged). All
the others were also employed by the Company. The six
signed union authorization cards and took blank cards
for the purpose of soliciting other employees to sign and
return them to the Union. After signing their cards, the
six went to the Tanori house and the Tanori sisters
began soliciting employees to come and sign cards.
Those efforts continued at the Salinas worksite the fol-
lowing several days. The Union filed a petition for certi-
fication as the exclusive collective-bargaining representa-
tive of the Company's production and maintenance em-
ployees in late October (Case 32-RC-1497).
Luz Tanori was prominent in the Union's organiza-
tional efforts.
All of the complaint allegations but two 4 involve Luz
Tanori. I shall discuss and enter findings concerning the
' The complaint alleges, the answer admits, and I find at pertinent
times Kent, Chester, Schmidt, Kelly, Harvell, and the two Avinas were
supervisors and agents of the Company acting on its behalf within the
meaning of Sec. 2 of the Act.
4 The alleged more stringent enforcement of the Company's discipli-
nary system after December I and the alleged undermining wage in-
crease.
incidents involving Luz Tanori, followed by discussion
and findings concerning the remaining issues.
C. Luz Tanori's Job History Prior to Her October 12
Discharge
At times pertinent, sisters Luz and Maria Tanori and
their mother lived in Imperial. Luz Tanori commenced
working for the Company in 1977 on a part-time basis,
while attending school. She did not work for the Com-
pany at Salinas during the period it conducted operations
there. She continued working for the Company on that
basis between 1977-1981, including the December 1980-
April 1981 season at Imperial. In 1981, however, she did
not cease working for the Company in April but contin-
ued in the Company's employ at Salinas. During her
entire employment, she worked at most of the jobs com-
monly assigned to women (those jobs not requiring
heavy lifting). She therefore worked on the trim and
core line, assembled boxes, packed boxes, and taped
boxes. She also received instructions on how to perform
quality control work and worked on that job (which re-
quired breaking random heads of lettuce and checking
them for quality, checking the temperature of and chlo-
rine content in the water in which the lettuce was
placed, and associated duties).
On April 19, she was issued a disciplinary warning
notice for tardiness.
On May 11, she received a second warning notice for
tardiness, plus a 3-day disciplinary layoff.
On June 2, she received a third warning notice for
leaving work prior to the end of her shift without the
permission of her supervisor and for overstaying break-
times.
Between June 4 and July 20, Tanori did not work. She
testified she ceased work on June 4 to attend a gradua-
tion exercise, and continued off work until July 20 be-
cause her mother was ill and needed her help.
D. The October 12 Discharge, October 13
Reinstatement, and Commencement of Union Activity
On October 12, Supervisor Sylvia Harvell directed
Tanori to go to work at the trim and core line. Tanori
protested the assignment, stating she was a packer. s
When Harvell insisted Tanori report to the trim and core
line, both Luz Tanor and her sister Maria protested vo-
ciferously. Harvell advised Luz Tanori either to report
as assigned or she was fired; Tanori replied she was not
going to report, she felt ill. Harvell, suspecting Tanori
was malingering, told her, if she did not go to work im-
mediately on trim and core, she was fired. Tanori repeat-
ed she was ill and stated she was leaving. Harvell in-
formed her she was fired. Maria Tanori stated she was
quitting and left with her sister.
s Work on the trim and core line was considered the least desirable job
assignment. The temperature in that trailer was in the 30's and constant
hand labor was required. Employees sought other jobs and when they
had them, protested reassignment to trim and core. Uncontradicted testi-
mony, which I credit, established all jobs were interchangeable in the
sense the supervisors moved employees between jobs according to pro-
duction needs or requirements.
754
ORVAL KENT FOOD CO.
The two went to the office of the California Labor
Commission to lodge a complaint over the incident. The
office was closed. They went to the Union's office to
seek assistance. It also was closed.
The next day, the sisters saw Chester. Luz and Maria
related their versions of what transpired the previous day
and Luz stated she was going to file a complaint with
the Labor Commission if she were not reinstated. Maria
requested reinstatement. Chester advised the sisters he
would let them know later if they were going to be rein-
stated.
As noted above, the two, accompanied by Ponce,
Maria Chester, and the two Avina supervisors, then went
to the Union's office, signed union authorization cards,
and began to solicit other employees to sign.
That same say (October 13), Chester telephoned Luz,
advised her he was going to credit her claim she refused
the job assignment the previous day because she felt ill,
and offered her reinstatement the following day. She ac-
cepted. Maria also was offered an accepted reinstate-
ment.
E. The Alleged Unlawful October 15 Interrogation
and Solicitation
The complaint alleges in October 1981 Chester tele-
phoned Luz Tanori at her home, interrogated her con-
cerning her reasons for signing a union authorization
card, and solicited her to find out and advise him what
the employee grievances were.
Tanori and Chester agreed a telephone conversation
took place between them on or about October 15 and
that, in the course of that conversation, Chester informed
Tanori the Company had a good medical plan and of-
fered to make it available to Tanori.6 Chester testified he
telephoned Tanori to make that statement and offer be-
cause he had been informed by his sister-in-law, Supervi-
sor Leticia Avina, that Tanori was telling employees the
Company did not have an adequate medical plan and be-
cause he knew (through Leticia Avina) Tanori was
active in the union campaign and influential among the
employees. Chester denied, however, that he asked
Tanori why she signed a union authorization card,
denied he asked her if he should give the employees (and
Tanori in particular) a raise, and denied he solicited her
to find out and advise him what the employee grievances
were.
In addition to stating Chester asked her why she
signed a union authorization card and asked her if he
should give her and other employees a raise, Tanori tes-
tified Chester said he knew she was a leader in the union
organizing campaign because the Company had received
a letter from the Union so naming her, that he stated he
knew the employees would listen to her and her sister,
and that he asked her to tell the employees about the
medical benefits the Company was providing.
I credit the mutually corroborative testimony Chester
telephoned Tanori on or about October 15 to tell her the
Company had a good medical plan, that he so advised
her, at the same time offering to show her the plan, and
I They also agreed Chester presented a copy of the plan to Tanori for
her scrutiny a few days later.
that she accepted his offer. I also credit Tanori's testimo-
ny to the effect Chester told her he was aware she was
influential among the employees and asked her to dis-
seminate among the employees information concerning
the level of benefits the plan provided.7
I do not credit Tanori's testimony Chester asked her
why she signed a union authorization card, that Chester
stated he knew she was a union leader because the Com-
pany received a letter from the Union so naming her,
and that he asked her whether he should grant her and
other employees a wage increase. Chester reasonably
was aware why Tanori signed a card, since he knew she
had been discharged, he knew she went to the Labor
Commission for redress, and he knew at the time she
went to the union hall with Leticia Avina and his wife
and signed a card, he had not yet offered her reinstate-
ment. It is unlikely Chester on or before October 15 saw
a letter from the Union to the Company naming Tanori
as one of its in-house organizers, since the card-gathering
effort began only 2 days before;8 and I find it doubtful
Chester would ask Tanori's "advice" on whether or not
to grant wage increases. Tanori showed an unfortunate
tendency to tailor her testimony to suit her purposes'
and this testimony appears to be such an effort.
On the basis of the foregoing, I find and conclude on
or about October 15 Chester did not ask Tanori why she
signed a union authorization card and did not solicit her
to ascertain and advise him what the employees' griev-
ances were. I therefore shall recommend the dismissal of
the portions of the complaint so alleging.
F. The Alleged November 5 Unlawful Warning
Notices and Suspension
The complaint alleged on November 5 the Company
issued warning notices to and suspended Luz Tanori be-
cause of her union activities.
On November 5, Luz Tanori was scheduled to work
the first (approximately 3 to 11 a.m.) shift under Supervi-
sor Gilberto Avina. She failed to report at the shift start-
ing time, arriving at the worksite about 9 a.m. Avina
asked her why she was late. Tanori replied her car broke
down. Avina asked why she had not called in. 10 Tanori
' It is reasonable he made such statements in view of his testimony he
knew she was a leader in the union campaign and influential among the
employees.
a Unions often list their employee supporters in a recognition demand
addressed to an employer following the receipt of signed authorization
cards from a majority of that employer's employees, to place the employ-
er on notice and hopefully proscribe any discriminatory treatment of the
named employees.
i For example, on direct examination she testified that company attor-
ney Carey at an October 26 employees meeting solicited grievances from
the employees in attendance by asking the reasons for their dissatisfac.
tion; under cross-examination, she shifted, identifying Chester as the em-
ployer representative who made that request; still later, she conceded
Chester only asked the employees if they had any question, after he and
Carey concluded remarks concerning a scheduled NLRB hearing and a
prospective election.
'0 The Company expected employees who anticipated being unable to
work their scheduled shift or those unable to report on time due to unex-
pected circumstances to notify the Company so replacements could be se-
cured.
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied no telephone was available at the location where
the car broke down, asked for her check," and stated
she wanted to go to work. Avina proffered her paycheck
and told her since it was so late, to report for work on
the second shift beginning at noon, for work on Supervi-
sor Harvell's crew. Tanori accepted the paycheck and
left the worksite without further comment. Avina noti-
fied Harvell that Tanori would be reporting for work on
her crew at noon. Tanori, however, neither reported for
work on the second shift nor gave notice of her intent
not to report.12
Harvell wrote up two warning notices; one for Tan-
ori's tardiness on the first shift and failure to notify the
Company of the reason therefor and expected time of ar-
rival, and a second for Tanori's failure to report for
work on the second shift and failure to notify Harvell of
her intended absence, the reason therefor, and for failure
to secure permission therefor. s
On reviewing the two notices and the reasons for their
issuance, Chester placed his signature below that of Har-
veil on the first notice. Both notices were issued to
Tanori, plus a 3-day disciplinary suspension.
Based on my findings above, I conclude the two no-
tices were issued for cause; i.e., for unexcused and unre-
ported absences from work on both the first and second
shifts on November 5, and that the accompanying sus-
pension, since it followed the issuance of previous warn-
ing notices of a similar nature, was also for cause.
I therefore find and conclude the General Counsel
failed to establish the Company issued the November 5
disciplinary notices and suspended Tanori because of her
union activities; rather, I find they were issued for cause.
G. The Alleged Unlawful Mid-December Threat
The complaint alleged in mid-December Supervisor
Gilberto Avina threatened Luz Tanori with onerous
treatment because of her union activities.
Tanori testified in mid-December Avina, in the pres-
ence of a group of employees, told her Chester stated to
him that he was going to come down hard on Tanori be-
cause she was not working fast enough and because of
the headaches she gave him in Salinas due to the union
organizing effort.
Avina testified Tanori was in his crew on the date in
question and he indeed addressed some of his crew
during a rest break, including Tanori, but stated what he
told them was that Chester was complaining his crew
was not working fast enough, that Chester said the crew
worked faster under the previous supervisor and, unless
he got them to work faster, his job as a supervisor was in
jeopardy; and that he pleaded with the crew to increase
their speed. Avina denied at any time he stated Chester
threatened to come down hard on Tanori because of her
union activities.
"I It was payday.
" The findings in this section are based primarily on the testimony of
Gilberto Avina, who impressed me as a sincere and honest witness, and
partial corroboration of his testimony by Sylvia Harvell. Any contrary
testimony by Tantori is not credited.
1" Gilberto Avina was a supervisor trainee and did not issue discipli-
nary notices or penalties. Harvell was authorized to issue disciplinary no-
tices and penalties.
I credit Avina's testimony; he was a forthright and
direct witness, while Tanori demonstrated a proclivity to
the contrary.
I therefore find and conclude the Company, by Avina,
in mid-December did not threaten Tanori with more on-
erous treatment because of her union activities and will
recommend those portions of the complaint so alleging
be dismissed.
H. The Alleged December Discriminatory Job
Reassignment
The complaint alleged on or about December 21 the
Company reassigned Luz Tanori from her current job to
a more disagreeable one because of her union activities.
It is undisputed that in mid-December Chester as-
signed Luz Tanori from trim and core to quality control
work and that her supervisor was Leticia Avina. It is
also undisputed that on December 21 Avina assigned
Tanori to work on the trim and core line for the last 2
hours of her shift and for the last 4 hours of her shift on
December 22.
Tanori testified Chester promised her the quality con-
trol job would be her permanent assignment when he of-
fered it to her and she accepted it; and that she was un-
prepared for the trim and core assignments and did not
have sufficient warm clothing for work on the trim and
core line. 4
Avina, Chester, and David Kent testified employees
regularly were shifted between jobs, to keep production
flowing, and as the supervisor in charge saw any need
therefor; Avina testified following the December I move
of the operations from Salinas to Imperial, she was utiliz-
ing Tanori, Maria Guzman, and Elvia Escamilla on qual-
ity control work,' 5 that she alternated the three at qual-
ity control work, with only one of them performing that
work at a time; and that she reassigned Tanori from
quality control to trim and core on the dates and during
the times in question as part of that practice, replacing
Escamilla, who took over quality control during those
times. Avina also testified employees assigned to either
job had to wear warm clothing, since both jobs were
performed in the same trailer or trailers; and that all em-
ployees normally kept clothing changes at the worksite.
Chester testified when he gave Tanori the quality con-
trol assignment, he made no guarantees concerning its
permanence. All the supervisors testified employees as-
signed to jobs such as box assembly, quality control, etc.,
often complained when reassigned to trim and core, but
their protests were just as regularly overruled and the
employees informed they would work as and where as-
signed or be subject to discipline.
I credit Avina's testimony, as supported by Chester
and Kent, that employees are regularly assigned from
one job to another, at the dictates of the Company's
needs (as interpreted and applied by its supervisors), and
that Tanori's assignment from quality control to trim and
core on December 21 and 22 were in accordance with
14 The Company maintained temperatures within the trailer where the
trim and core line worked in the 30's.
L" Normally only one quality control clerk performed quality control
work on a shift.
756
ORVAL KENT FOOD CO.
those practices; I therefore find and conclude the Gener-
al Counsel failed to establish the Company, by Avina, as-
signed Tanori to trim and core line work on December
21 and 22 because of her union activities and will recom-
mend those portions of the complaint so alleging be dis-
missed.
1. The Alleged Unlawful December 23 Warning
Notice and Suspension; the Alleged Unlawful
December 31 Termination
The complaint alleges on December 23 the Company
issued a warning notice and indefinite suspension to Luz
Tanori and on December 31 discharged her because of
her union activities.
Prior to a 10-minute rest break on Luz Tanori's shift
on December 23, Tanori was working on quality control
and Elvia Escamilla was working on the trim and core
line. Shortly before the trim and core line took its break
their supervisor, Leticia Avina, instructed Tanori to re-
place Escamilla on the trim and core line following the
break and instructed Escamilla to replace Tanori on
quality control following the break. Following comple-
tion of both the trim and core line's break and that of the
MPM workers (who commenced their break when the
trim and core workers returned from their break), Avina
noticed Tanori was not working on the trim and core
lane. She telephoned Acting Production Manager Kelly
(Chester was on vacation) and informed him Tanori had
not followed her instructions. Kelly located Tanori at
the box assembly trailer conversing with an employee
working in that trailer and asked Tanori what she was
doing there. Tanori replied she was on her break. When
Kelly expressed dissatisfaction with her explanation,
Tanori went to work on the trim and core line. She ar-
rived there approximately 25 minutes after the time the
trim and core line began their break.' 6 At the following
lunchbreak Avina instructed Tanori to report to Assist-
ant Manager Scheidt. When Tanori saw Scheidt, he
issued her a written warning notice for disobeying her
supervisor's instructions by overstaying her break; she
was also suspended until further notice.
Following a December 31 "version conference"' ?
conducted by General Manager Kent, Kent reviewed
16 The findings in this section are based primarily on the testimony of
Avina, who was a convincing witness.
17 The "version conference" was a new step in the Company's discipli-
nary procedure; previously, the normal disciplinary sequence was the is-
suance of oral warnings; in the event such warnings were ineffective and
further infractions occurred, the issuance of written warnings, sometimes
accompanied by short-term disciplinary layoffs, at the discretion of the
supervisor; if infractions continued, either additional warnings and sus-
pensions followed or discharge, again within the supervisor's discretion.
Sometime in the fall of 1981, the Company decided in the case of an em-
ployee who had received repeated warnings and short-term suspensions
but again violated company rules, it would lay off such employee for an
indefinite period, hold a conference with the employee to receive the em-
ployee's version of what occurred and, after reviewing that explanation,
the supervisor's version of what occurred and the previous disciplinary
history of the employee, to then decide whether to lift the suspension or
convert it into a discharge. That procedure was followed for the first
time following Tanori's December 23 suspension. It has been followed
regularly since, in some cases resulting in a decision to discharge and in
other cases in a decision to lift the suspension.
Tanori's version of the December 23 incident (Tanori
claimed she did not overstay her breaktime, but reported
within 10 minutes of the time she commenced her break,
Avina's and Kelly's report of the incident, Tanori's histo-
ry of warnings on April 19, May 11, June 2, and Novem-
ber 5 and suspensions on May 11 and November 5, con-
sulted with Chester, and decided to convert the Decem-
ber 23 suspension into a discharge. Tanori was duly noti-
fied of that decision.
The General Counsel contends the December 23
warning notice and suspension were issued and the De-
cember 31 discharge was effected to rid the Company of
its most active union supporter and not for cause.
I cannot accept the General Counsel's contention;
since I have found Tanori overstayed her break by ap-
proximately 15 minutes, in defiance of her supervisor's
instructions to commence work on the trim and core line
following the completion of their break, the Company
certainly had good cause for issuing her a warning notice
for disobeying her supervisor by overstaying her break
and, in view of previous warnings for both a similar and
other infractions of company rules and practices, sus-
pending her. I further find the Company's decision to
discharge Tanori after a review of the reasons for the is-
suance of that notice and suspension and Tanori's previ-
ous discipinary history, also was for good cause. Other
employees have been issued similar notices, suspension,
and discharged for similar offenses. While it is certainly
true Tanori was a union activist and known as such by
the Company, the credible evidence is insufficient to es-
tablish Tanori was discharged because of her role in the
Union's organizational campaign.
I therefore shall recommend dismissal of those por-
tions of the complaint alleging the Company issued the
December 23 warning notice and suspension to Tanori
and discharged her on December 31 because of her
union activities.
J. The Alleged More Stringent Enforcement of the
Disciplinary System after December I
The complaint alleges the Company violated the Act
by more stringently enforcing its disciplinary system
after December I because of its employees' union activi-
ties.
The record discloses oral and written warnings, sus-
pensions, and discharges were effected both prior and
subsequent to December I for employee infrations of the
Company's policies, rules, and practices; no showing was
made that such warnings, suspensions, and discharges
were issued and effected with greater frequency subse-
quent to December I than prior to December 1, nor that
union supporters were singled out for discipline after De-
cember I in any greater degree after December 1 than
prior to December 1. The only change in the disciplinary
system after December 1 consisted of the addition of a
new step prior to effecting any discharge; i.e., conduct-
ing a "version conference" with the affected employee to
hear his or her statement of the events which precipitat-
ed the suspension prior to making a decision as to wheth-
er or not to convert such suspension into a discharge.
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing, I find the General
Counsel failed to support this allegation of the complaint
with sufficient credible evidence to warrant a finding of
violation,' s and will recommend those portions of the
complaint so alleging be dismissed.
K. The Alleged Unlawful Wage Increases in Early
1982
The complaint alleges the Company violated the Act
by granting employees an increase in early 1982.
It is undisputed 16 increases were granted on January
11, 1982; 1 on January 30; 13 on February 15; 7 on
March 8; 6 on March 15, and 9 on March 22. It is also
undisputed no increases were granted in January 1981; 2
on February 16, 1981, 9 on March 1, 1981; and 2 on
March 23, 1981. As noted heretofore, the 1982 increases
were granted at the time the Union's petition for certifi-
cation as the exclusive representative of the employees
who received the increases in question.
Chester testified he granted the increases; that the
Company had no policy or practice for granting wage
increases (such as a periodic review and grant thereof)
but rather were granted as and when he decided employ-
ees should receive them. Neither Chester nor Kent made
any effort to explain or justify the grant during the first
quarter of 1982 of such an extraordinary number19 of in-
creases, at a time an election was reasonably anticipated
due to the Union's pending petition for certification as
the collective-bargaining representative of a majority of
the Company's production and maintenance employees.
In the absence of proof that wage increases granted
prior to an election to determine the validity of a union
claim of majority representative status were effected in
the course of a preexisting wage adjustment policy or
practice or for valid economic reasons, the Board and
the courts frequently have concluded it may reasonably
be inferred they were intended to discourage employee
support of the petitioning union and therefore violative
of the Act.20
I so conclude here, finding and concluding, the Com-
pany granted the increases in question to undermine em-
ployee support of the Union in the anticipated election
and thereby violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
I. At all pertinent times the Company was an employ-
er engaged in commerce in a business affecting com-
merce and the Union was a labor organization within the
meaning of Section 2 of the Act.
2. At all pertinent times Kent, Schmidt, Chester,
Kelly, Harvell, Leticia Avina, and Gilberto Avina were
supervisors and agents of the Company acting on its
behalf within the meaning of Section 2 of the Act.
'I The General Counsel neither cited any evidence nor argued for
such a finding in his post-hearing brief.
I9 Extraordinary in the sense the entire unit at no time exceeded 60
employees and 53 increases were granted in that quarter, as contrasted
with the grant of 13 increases the year prior.
2o NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); NLRB v. Broad-
moor Lumber Co., 578 F.2d 238 (9th Cir. 1978); NLRB v. Squire Shops,
559 F.2d 486 (9th Cir. 1977); NLRB v. Takyo, 543 F.2d 1120 (9th Cir.
1976), Highland House Nursing Center, 222 NLRB 134 (1976); Crown Zel-
lerbach Corp., 225 NLRB 911 (1976); etc.
3. The Company violated Section 8(a)(1) of the Act by
its grant of numerous wage increases to employees in the
first quarter of 1982 for the purpose of undermining their
support of the Union in an anticipated election due to the
Union's pending petition for certification as their collec-
tive-bargaining representative.
4. The Company did not otherwise violate the Act.
5. The aforesaid unfair labor practice affected and af-
fects commerce as defined in Section 2 of the Act.
THE REMEDY
Having found the Company violated the Act, I recom-
mend it be ordered to cease and desist from such viola-
tion and take certain affirmative action designed to effec-
tuate the Act. Having found the Company did not
commit the balance of the violations alleged in the com-
plaint, I shall recommend those portions of the complaint
be dismissed.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I recommend the issuance of the
following
ORDER2
The Respondent, Orval Kent Food Company, Inc., Sa-
linas and Imperial California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from granting wage increases to its
employees during the pendency of an election to deter-
mine whether Teamsters Local 890 or any other labor
organization represents a majority of those employees,
for the purpose of undermining employee support of
such labor organization in the election.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Post at its premises at Salinas and Imperial, Califor-
nia, copies of the attached notice marked "Appendix." 2 2
Copies of that notice, on forms provided by the Regional
Director for Region 32, shall be signed by an authorized
representative of the Company, posted immediately upon
their receipt and maintained for 60 consecutive days
thereafter in conspicuous places including all places
where notice to employees are customarily posted. Rea-
sonable steps shall be taken to ensure the notices are not
altered, defaced, or covered by other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Compa-
ny has taken to comply herewith.
IT IS FURTHER RECOMMENDED that all portions of the
complaint issued against the Company in this case other
than those just set out be dismissed.
21 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
22 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
758
ORVAL KENT FOOD CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before the National Labor Relations
Board, it decided we committed an unfair labor practice
and directed that we post this notice advising you we
will do the following to remedy that unfair practice.
WE WILL NOT grant wage increases to our employees
during the pendency of an election to determine if a ma-
jority of our employees wish to be represented by Team-
sters Local 890, or any other labor organization, for the
purpose of undermining our employees' support of such
labor organization in the election.
ORVAL KENT FOOD COMPANY, INC.
759