Patio Foods, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 446 (N.L.R.B. 1967)

446 DECISIONS OF NATIONAL
Patio Foods , Inc. and International Union of
Electrical , Radio and Machine Workers,
AFL-CIO. Case 23-CA-2353.
June 16,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 5, 1966, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs, and Respondent
filed cross-exceptions to the General Counsel's
exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. I The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record' in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Patio Foods,
Inc., San Antonio, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
' Respondent contends that the Trial Examiner was biased and
prejudiced and that as a result it was denied a fair hearing We
have carefully examined the record and the argument made by
Respondent in support of its contention, and are satisfied, on the
basis of the entire record, that the contention is without merit
' Respondent's request for oral argument is denied since the
record and the briefs adequately present the issues and the
positions of the parties
LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon charges filed
April 13 and May 9, 1966, by the International Union of
Electrical, Radio and Machine Workers, AFL-CIO, herein
the IUE or the Union, against Patio Foods, Inc., herein
Patio or the Respondent, the General Counsel issued a
complaint and amended complaint alleging Respondent
violated Section 8(a)(1) and (3) of the Act. The answer
denied the commission of any unfair labor practices.
This proceeding, with all parties represented, was heard
by me at San Antonio, Texas, on August 11 and 12, 1966.
At the conclusion of the hearing the parties were given
leave to file briefs and briefs were received from the
General Counsel and the Respondent.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses while
testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation having its principal
place of business at San Antonio, Texas, where it is
engaged in the manufacture, processing, sale, and
distribution of food products. Annually it sells and
distributes products valued in excess of $50,000 to places
outside the State of Texas and purchases materials valued
in excess of $50,000 from places outside the State of
Texas.
The Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The IUE is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that the Respondent
violated the Act by:
(1) Promulgating, on July 1, 1964, and thereafter
maintaining and enforcing rule 131 providing for dismissal
for "Solicitation on Company Time for Any Cause or
Purpose Not Expressly Approved by the Management."
(2) Enforcing said rule to prevent distribution of union
literature in nonworking areas on nonworking time.
(3) Physically interfering with and threatening to arrest
employees distributing literature in nonworking areas on
nonworking time and threatening to suspend them and
discharging them for such activity.
(4) Demanding, in vulgar language, that an employee
remove herself from company property.
B. The Testimony
Alice Jordan was employed in the enchilada department
of Patio until April 11, 1966. She testified' that on that day
the department closed down about 4:45 p.m. (regular
I Joint Exh 2
2 Jordan was a completely credible witness and, in fact, there is
little serious dispute in the testimony of the witnesses
165 NLRB No. 63
PATIO FOODS
closing time was 5 pm.) because of a shortage of tortillas.
She and Rachel Villarreal, another employee, left the
storage frozen shipping building and went through gates 1
and 2 (see Joint Exh. 1) to Military Drive where two union
organizers, Freund and Javior, and an employee named
Lupe Hernandez had union literatures to distribute to
employees when they left work. Both Jordan and Villarreal
took the literature and then reentered the plant passing
back through both gates 1 and 2. There were guards at
both gates, D. C. Robinson employed by Stanley Smith
Detectives, Incorporated, at gate 2 and W. E. Murphy an
employee of Patio described as gate receptionist at gate 1.
The witness testified that most of the employees leaving
the plant would use the same route although, since the
employees' parking lot lay between gates 1 and 2, all would
not continue by foot through gate 2. After passing gate 1
they began distributing the literature to the other
employees who were leaving the plant Murphy asked
them if they had permission to pass out the literature and
when told they had permission from the union organizers,
Murphy told them Stumberg (H. E. Stumberg, Jr., general
manager of Patio) had not given them permission and
would "get mad." They continued to distribute the
literature and Murphy blew a whistle and motioned for the
guard at gate 2, Robinson, to come over. Robinson reached
Jordan as she was passing out the pamphlet to another
employee, grabbed the pamphlet out of her hand, and
pulled her around by the arm. Robinson told her she was
not supposed to be passing out pamphlets in that area and
Jordan told him she had a right to do it. At this time the 5
o'clock whistle blew and Stumberg and W. R. Green, plant
superintendent, came from the building. Stumberg asked
Jordan what she thought she was doing and when she told
him she was distributing union literature he told her she
had no right to do it on his property. Stumberg told her to
get off of the plant property and then ordered them into his
office. When Jordan and Villarreal refused to leave, he
threatened to call the police and then told them not to
report for work the next day. Stumberg and Green then
went back into the plant.
In "a few seconds" Stumberg and Green came back and
Stumberg told them they were breaking "a long-time set
regulation" and then told them they were fired. The girls
continued to distribute the pamphlets as they left the
plant. As they were leaving Jordan told Green they, like
MacArthur, would return and that she had the guts to
return. Green told her to "get out in the street with her
guts."
While Jordan and Villarreal were distributing the
pamphlets in an area marked an "x" on Joint Exhibit 1, a
truck was unloading at an adjacent dock. The unloading
was being performed by a crew of Patio's employees under
the direction of Abel Santos, in charge of the storage and
frozen shipping department. (The location of the trailer
they were loading is shown on Joint Exh. 1.) The trailer
was situated close to the area where Jordan and Villarreal
were distributing their literature and it was the testimony
of Santos and Samuel Serenil that the employees who
were loading the truck stopped work when the distribution
' Joint Exh 3
Serenil testified that Jordan tried to give him a pamphlet but
that he refused Jordan denied that she attempted to give any
literature to any employee working on the truck and I credit her
denial Apart from the fact that Jordan was a credible witness
there would have been no reason to stop distributing to employees
leaving the plant to go to the truck Sereml's testimony was not
supported by any other employee
447
"began and watched the argument between Jordan and
Stumberg and Green.4 It was also the testimony of Lupe
Casillas, in charge of warehousing and receiving, that
about 12 employees in his department stopped work to
watch the distribution and the argument. These employees
quit work at 5 p.m.
I find no such substantial discrepancies between the
testimony of the General Counsel's witnesses and those
called by Respondent as to require further review. The
testimony of Jordan was corroborated by her coworker
Villarreal and it is not, as to the general pattern and
sequence of events, contradicted.
C. Conclusions
Two contentions of the General Counsel may be
disposed of without ado. The contention that an employer
may not promulgate a rule forbidding solicitation on
company time is absurd. The distinction between a
prohibition against solicitation on company time and one
against solicitation on company property has been
observed since, in labor law, "the memory of man runneth
not to the contrary."' It has become hackneyed and
shopworn from application by the Board and the courts,
including the U.S. Supreme Court.'' The allegation that
rule 13 violates the Act must be dismissed.
The second contention which merits quick dismissal is
that which asserts a separate violation of Section 8(a)(1) in
Green's use of the word "guts" in ordering Jordan off
company property. The General Counsel, with as fine a
display of nice-nellyism as this Examiner has recently
encountered, contends that the use of the word "guts" (the
word was first used by Jordan herself) constituted
vulgarity. By implication the use of vulgarity in addressing
an employee engaged in union activity is a per se violation
of the Act. The theory is novel as well as lofty-minded but,
apart from the fact that there are words which spring to
mind which would have fitted the situation and which
might have been subject to the charge of vulgarity, I do not
find vulgarity barred by the Act, nor any requirement that
an employer observe the etiquette of the nunnery in
speaking to his employees. The Board has a sufficient
burden in enforcing the statute without the added
imposition of implementing the rules of behavior
established by either Amy Vanderbilt or Emily Post.
I recommend dismissal of paragraph 9(h) of the
complaint insofar as it refers to the use of vulgar
language. 7
The relevant and material issue in the case is whether
the conduct of Jordan and Villarreal on April 11 was
protected by the Act. That determination in turn rests
upon whether they were, when engaged in passing out the
pamphlets, in a nonworking area and on nonworking time
and were not interfering with employees who were on
working time.
I do not find lengthy discussion required. Jordan and
Villarreal were distributing the pamphlets on the path of
egress from the plant to Military Drive. It was, of course,
company property but it could scarcely be called a
Peyton Packing Company, Inc , 49 NLRB 828
Republic Aviation Corporation v N L R B, 324 U S 793,
N L R B v United Steelworkers of America, CIO [Nutone, Inc.]
and N L R B v Avondale Mills, 357 U S 357
7 For a discussion of vulgarity and its impact see the Trial
Examiner's Decision in Louisville Chair Company, Inc , 161
NLRB 358, section C, 1
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working area in the sense that term is generally employed.
It is true that a truck was loading adjacent to the path and
that another truck was loading at the canned goods
warehouse" and testimony establishes that men at both
areas stopped work to watch the argument between Jordan
and Stumberg and Green. I do not think this sufficient to
constitute the area used by employees going to or leaving
from work as a working area. Certainly the distribution of
the pamphlets did not prevent or interfere with work of the
loaders. It is true that they were distracted by the ensuing
scene but it was the responsibility of their supervisors to
see that work continued. Assuming the activity of Jordan
and Villarreal was lawful and protected, the responsibility
for the distraction should be that of Stumberg and Green,
who unlawfully interfered with that activity. I also find that
Jordan and Villarreal were on their own time when this
activity occurred. Admittedly work in their department
had ceased and they had, after permission had been
obtained by their supervisor, been released for the day.
Under these circumstances I find it immaterial whether
they were paid for the last 10 or 15 minutes or not. They
were free to go home, to repair to the nearest tavern, or
whatnot. It was, then, their privilege to engage in
solicitation of the other employees who had been released
and were leaving the plant. I find that Respondent
unlawfully interfered with this activity by:
(1) Robinson's conduct in stopping Jordan and taking a
pamphlet from her hand and ordering her to cease
solicitation.9
(2) Stumberg's direction to Jordan and Villarreal to
leave his property and distribute literature in the street.
(3) Stumberg's threat to call the police and place them
under arrest and his order that they not report for work the
following day.
(4) The discharge of Jordan and Villarreal for engaging
in the distribution of the literature.
By the conduct set forth in (1), (2), and (3), above, the
Respondent violated Section 8(a)(1),1° and by the conduct
set forth in (4), above, it violated Section 8(a)(3) and (1) of
the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent discharged Alice Jordan
and Rachel Villarreal in violation of Section 8(a)(3) and (1)
of the Act, I shall recommend that they be offered full and
immediate reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges. I shall also recommend that
Respondent make them whole for any loss of pay they may
have suffered by reason of the discrimination practiced
against them in accordance with the formula of F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings and conclusions
and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. By enforcing its "Solicitation Rule" to prevent the
distribution of union literature in nonworking areas on
nonworking time; by physically interfering with the
distribution of said literature in nonworking areas on
nonworking time; and by threatening to suspend and to
arrest employees for engaging in the distribution of union
literature as aforesaid, the Respondent violated Section
8(a)(1) of the Act.
2. By discharging Alice Jordan and Rachel Villarreal
for engaging in protected concerted activity in order to
discourage union activity,the Respondent violated Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
It is recommended that Patio Foods, Inc., San Antonio,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully enforcing its "Solicitation Rule" by
preventing the distribution of union literature in
nonworking areas on nonworking time; physically
interfering with the distribution of said literature in
nonworking areas on nonworking time; and threatening to
suspend and arrest employees for engaging in the
distribution of said literature in nonworking areas on
nonworking time.
(b) Discriminating against any employee in regard to his
hire or other tenure or condition of employment to
discourage membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO, or any
other labor organization, by discharging or otherwise
terminating his employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Alice Jordan and Rachel Villarreal full and
immediate reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges and make each of them whole
for any loss of pay she may have suffered by reason of the
discrimination practiced against her in the manner set
forth in that portion of this Decision entitled "The
Remedy."
(b) Notify Alice Jordan and Rachel Villarreal if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary for the computation of any backpay
8 See Joint Exh 1 10 While the suspension of Jordan and Villarreal was a violation
Although Robinson was an employee of a plant security of Section 8(a)(3), no separate finding will be made since it is
service and not of Patio, I find him to be agent of Patio in this encompassed within the finding of an unlawful discharge under
situation acting within the scope of his authority that section.
PATIO FOODS
which may become due under this Recommended Order.
(d) Post at its plant at San Antonio, Texas, copies of the
attached notice marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director fcr
Region 23, after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 12
It is further recommended that all allegations of the
complaint not specifically found to be in violation of the
Act shall be dismissed.
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
II In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Lab r
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT enforce our "Solicitation Rule" so as
to stop our employees from distributing union
pamphlets in nonworking areas on nonworking time.
WE WILL NOT physically interfere with the
distribution of union literature by our employees in
nonworking areas on nonworking time.
449
WE WILL NOT threaten to arrest or to suspend from
employment any employees because they are
distributing union literature in nonworking areas on
nonworking time.
WE WILL NOT discharge any employee because he
or she has distributed union literature in nonworking
areas on nonworking time.
WE WILL NOT discharge any employee to
discourage membership in or activity on behalf of
International Union of Electrical, Radio and Machine
Workers. AFL-CIO.
WE WILL offer Alice Jordan and Rachel Villarreal
their jobs back without loss of seniority or other rights
and privileges and pay them for any loss of pay they
may have suffered since they were fired.
WE WILL NOT in any other manner interfere with,
restrain, or coerce any of our employees in the
exercise of their right to self-organization, to form,
join, or assist International Union of Electrical, Radio
and Machine Workers, AFL-CIO, or any other labor
organization.
All of our employees are free to become or remain, or to
refrain from becoming or remaining. members of the
above-named or any other labor organization.
PATIO FOODS,INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify any of the above-named employees
if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 228-0611.