Peyton Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1941

32 N.L.R.B. 595 (N.L.R.B. 1941)

In the Matter Of PEYTON PACKING COMPANY, INC. and PACKINGHOUSE
WORKERS ORGANIZING COMMITTEE
Case No. C-1789.-Decided June 11, 1941
Jurisdiction : meat packing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; surveillance of
.union meeting.
Company-Dominated Union : formation of, with aid and support of employer-
membership solicitation by representatives of management-support : per-
mitting open solicitation of members and collection of dues during working
hours and posting of notices of "inside" union activities within plant ; contribu-
tion of food and transportation facilities for picnics held under sponsorship
of ; instituting check-off system.
Discrimination : charges of, dismissed.
Remedial Orders: employer ordered to disestablish dominated organization and
to reimburse employees for dues checked off. I
Mr. V. Lee McMahon, for the Board.
Mr. Eugene T. Edwards, of El Paso, Tex., for the respondent.'
Mr. Kermit S. Fry, of Ft. Worth, Tex., for the Union.
Mr.'Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges' duly filed by Packinghouse
Workers Organizing Committee, affiliated with the Congress of In-
dustrial Organizations, herein called the .Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Sixteenth Region (Fort Worth, Texas), issued its complaint
dated October 7, 1940, against Peyton Packing Company, Inc.,; El
Paso, Texas, herein called the respondent, alleging that the respond-
ent had engaged in and was 'engaging in unfair labor practices
' The charge was filed on August 12, 1939, the first amended charge on February 2,
the second amended charge on February 8, the third amended charge on February 9, and
the fourth amended charge on March 13, 1940
32N.L R.B,No 111
595
448692-42-vol. 32-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affecting commerce within the meaning of Section 8 (1), (2), and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent,
the Union, and the Employees' Association of the Peyton Packing
Company, herein called the Association.
With respect to the unfair labor practices, the complaint alleged
in substance: (1) that the respondent, on or about January 18,
1940, discharged and at all times since has refused to 'reinstate Pedro
S. Torres, Jr., because he joined and assisted the Union; (2) that
the respondent, on or about May 20, 1937, initiated, formed, and
sponsored a labor organization known as Employees' Association
of the Peyton Packing Company, and has since dominated, con-
tributed to the support of, and interfered with the administration
of said Association ; (3) that the respondent, beginning on or about
August 9, 1939, urged, persuaded, and warned its employees to
refrain from aiding or becoming or remaining members of the Union,
and threatened said employees with discharge and other reprisals if
they aided said Union or members thereof and if they did not become.
or remain members of the Association, and kept under surveillance the
activities, meetings, and meeting places of said Union and said
employees.
On October 14, 1940, the respondent filed its answer, in which,
in substance, it denied that it had engaged in the alleged unfair labor
practices.
Pursuant to notice, a hearing was held at El Paso, Texas, from
October 21 to 26, 1940, before George Bokat, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel; the Union, by its repre-
sentative; all participated in the hearing.2 Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. During
the hearing, the respondent's counsel moved to strike certain hearsay
testimony given by the witness, Paul Lux. At the conclusion of the
hearing, counsel for the Board moved that the pleadings be con-
formed to the proof. The Trial Examiner granted these motions.
During the course of the hearing the Trial Examiner made numerous
other rulings on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committeed. The rulings
are hereby affirmed.
On January 13, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, wherein
2 The Association did not appear at or participate in the hearing.
PEYTON PACKING COIVPANY, INC. 597
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act.
He recommended that the respondent cease and desist from the unfair
labor practices so found and take certain affirmative action in order
to effectuate the policies of the Act. Exceptions to the Intermediate
Report were thereafter filed by the respondent. None of the parties
filed briefs or requested oral argument before the Board.
The Board has considered the exceptions filed by the respondent
and, except as they are consistent with the findings of fact, con-
clusions of law, and order set forth below, finds them to be without
merit. -
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Peyton Packing Company, Inc., the respondent, is a Delaware
corporation qualified to do business in the State of Texas since
January 1, 1937, having previously operated in Texas since 1916 as
a West Virginia corporation. Its main place of business is in El
Paso, Texas, where it is engaged in slaughtering livestock and pre-
paring meats and byproducts for sale as food. Approximately 30
per cent of the livestock slaughtered by the respondent is shipped
to it from points outside the State of Texas, and approximately 50
per cent of the respondent's products are shipped from its El Paso
plant to points outside the State of Texas. The products so shipped
in the year 1939 amounted in value to $1,940,000. In addition to its
El Paso plant, the respondent maintains a small branch at Tucson,
Arizona, and feed pens at Littlefield, Texas. The respondent sells
some of its products to the United States Army and Navy. At the
hearing, the respondent conceded by stipulation that it is engaged
in commerce within the meaning of the Act.
The respondent employs an average of approximately 390 em-
ployees at its El Paso plant, approximately 11 at its Arizona branch,
and approximately 18 at its Littlefield feed pens.
H. THE ORGANIZATIONS INVOLVED
Packinghouse Workers Organizing Committee is a labor organiza-`
tion, affiliated with the Congress of Industrial Organizations, admit-
ting to membership employees of the respondent.
Employees' Association of the Peyton Packing Company is an
unaffiliated labor organization, admitting to membership employees
of the respondent.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and admin-
istration of the Association
Prior to May 1937 no "attempt had been made to organize the
respondent's employees. According to Manuel B. Alvarez, who has
been in the employ of the respondent for 18 years in several capaci-
ties, such as timekeeper, foreman, and, since 1930, salesman, he
obtained the idea of forming the Association in May 1937 from an
article describing labor organizations which appeared in the "Na-
tional Provisioner," a magazine" published by the Institute of Amer-
ican Meat Packers. He proceeded to carry out his plan despite the
fact that, according to his testimony, he was satisfied with his work-
ing conditions and believed that his fellow employees were similarly
satisfied. After discussing this idea with several other employees,
Alvarez sought the advice of L. F. Miles, who was at that time the
vice president and sales manager for the respondent, to ascertain
whether "it would be all right" to form the Association. Miles re-
plied, according to his testimony, "Manuel, you have got me. I
can't advise you. You had better see an attorney." However, ac-
cording to testimony of Paul Lux, a discharged foreman of the
respondent, Miles' attitude towards the Association was not one of
neutrality as expressed above, but rather one of partisan advocacy.
Lux testified that at about the time the Association was being formed,
Miles told him to inform the employees of his department to join
the Association and cautioned him against revealing that Miles had
anything to do with it. Thereupon, according to Lux, he advised
the approximately 25 employees in his department to join the
Association.
Miles categorically denied having the aforesaid conversation with
Lux. Lux had been discharged by the respondent because of his
arrest, conviction, and fine (which the respondent paid), due to a
petty theft. Lux explained that he had been drinking intoxicants
prior to his arrest and implied that he was unaware of his actions.
The factors of Lux's conviction and discharge and possible bias
against the respondent by reason thereof have been carefully con-
sidered by the Board, as they were by the Trial Examiner. The lat-
ter, who had an opportunity to observe the witnesses, credited Lux's
testimony. Furthermore, our conclusion that the respondent, aside
from the above incident, gave aid, support, and assistance to the
Association renders Miles' denial unconvincing and we find, as did
the Trial Examiner, that Lux's testimony regarding the above incident
is substantially in accord with the facts.
PEYTON PACKI 10 COMPANY, INC. 599
Subsequent to his conversation with Miles, Alvarez, together with
two other employees, Ramon Rodriquez and Rafael Ramirez,3 con-
sulted an attorney, who prepared a constitution and bylaws for the
Association. The first meeting of the Association was held on May
20, 1937, and notices of this meeting were posted on a bulletin board
in the respondent's plant. Thereafter notices of the activities of
the Association were posted without the interference or opposition
of the respondent. Although no meetings of the Association were
held on the respondent's premises, the employees were openly solicited
to join the Association during working hours and frequently paid
their Association dues during working hours.
Testimony was given by two former employees of the respondent,
John W. Moss and Edward L. Naron, which is illustrative of the man-
ner in which the Association obtained members. Moss was employed
by the respondent at the El Paso plant about November 1, 1937, and
testified that by "general yard talk" among the employees,' he learned
that "they had a company association and all members [employees]
were supposed to join." According to Moss, he thereupon joined the
Association and paid his dues to Rodriquez in the general office of the
respondent during working' hours. Moss, who subsequently was pro-
moted to the position of a foreman, testified that while acting as such,
when a new employee by the name of Charles Neely came into his
department, he told him about the Association and that all the em-
ployees "were supposed to join the Association . . . and if he didn't
have a card he wasn't supposed to go take an active part in the
picnic." 4
Naron was employed by the respondent in June 1937 and shortly
thereafter, while working as night watchman, he was approached by
Alvarez and Ramirez who solicited him to join the Association. Naron
thereupon sought the advice of Frank Ivy, who was foreman in charge
of the watchmen; with Ivy, on that occasion, was Charlie Massingill,
another foreman. According to Naron, the following conversation
took place:
I just went in and laid my clock down and said, "Frank, who is
these men (Alvarez and Ramirez) and what is there to this union,"
' Rodriquez was part of the respondent 's clerical staff and was known as a "city order
clerk." Ramirez , who did not testify, had charge of the storeroom , and was described
by some of the Board's witnesses - as a foreman. Although the respondent denied that
Ramirez was a foreman , it is clear from the evidence that he supervised the work of other
employees . In a statement given to a representative of the Board , W. A. Kessler , superin-
tendent of the respondent , stated that Ramirez was in charge of the storeroom , and had
"Two and sometime mote" employees "working for him" and "called in" extra help,
whenever needed. This corroborated the testimony of several Board witnesses that
Ramirez ' s duties were supervisory in nature, and we so find.
4 While Moss admitted that no official of the respondent instructed him to inform Neely
to join the Association , he stated that he spoke to Neely "because it was impressed on me
when I went there that way; that is what they told me and when it came necessary
for me to tell the other men that is what I told the other men." Moss explained that his
reference to "they" in his testimony was to the employees and members of the Association
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he says, "They are plant men." He said, "I let them in and I
understand what they are here for," and he said, "this is their little
company union," and he said, "It is all right. Everyone that
works here belongs to it or is supposed to if they get any benefit
out of it going to their socials or if they have any trouble then there
is a committee in this little union to take up their trouble and dis-
cuss it with the foreman higher up," and I said, "It is all right for
me to join it," and he says, "Yes, it's all right, we endorse it. In
other words, we organized it."
Naron further related that Massingill said, "It is essential that you
belong to this union." Naron thereupon joined the Association and
remained a member thereof until he became a foreman several months
later. Naron was discharged by the respondent in May 1940, at which
time he was working as night superintendent.
Both Ivy and Massingill denied having any conversation with Naron
concerning the Association. The Trial Examiner, who had an oppor-
tunity to observe the witnesses, credited Naron's testimony over the
respective denials of Ivy and Massingill. As in the case of Lux, Naron's
possible prejudice against the respondent by reason of his discharge
has been carefully considered in weighing his testimony against that
of the respondent's two foremen. Upon a consideration of all the fac-
tors involved, including other evidence in the record regarding the
respondent's assistance to the Association, we find that Naron's testi-
mony regarding the foregoing conversation with Ivy is substantially
true.5 Naron further testified that while acting as night superintend-
ent and shortly after a new watchman by the name of Lee Beckner
began his employment, George LaBritton, who was then president of
5 The following answers given by Ivy on cross-examination as to what caused him to
Inquire of Peyton whether he should attend an organizational meeting of the Union, are
indicative of why Ivy made a poor impression as a witness
By Mr McMahon:
Q. Why did you think Mr Peyton might be interested in your going to a C I. 0
meeting?
A. I live there and I don't go outside without saying something to the foreman,
Mr. Peyton, or somebody.
- Q. I am asking why you thought Mr. Peyton might be interested in your going to
the C. I. 0 meeting's
A. I don 't know how to answer that.
Q. Can you tell me what was in your mind when you went to Mr Peyton and
talked to him about your going to the C. I. 0 ?
A. I didn't know whether he wanted me to leave the place or not
Q. Had you wanted to go?
A. No, sir, I didn't want to go.
Q If you hadn 't wanted to go you would not have been leaving the place, would
you? Is that right?
A. Well, I thought I might go and see what was taking place
Q. You thought you might go and see what was going to take place?
A Yes, sir.
Q And after you had that idea , what was the next idea you had?
A. Well, after Mr. Peyton told me not to have anything to do with it I didn't care
anything about going and didn't go.
PE'YTON PACKING COMPANY, INC. 601
the Association, came to the plant with the names of three new em-
ployees whom he wanted to solicit for the Association. Naron testified
that after he had introduced LaBritton to Beckner, and. the latter two
had discussed the features of the Association, Naron told Beckner that
"everyone belonged to it. I told him I belonged to it until I was a
foreman, and then, that automatically exempted me," and
... he [Beckner] asked me at that time if that would bar
him from joining any other union and I told him that if he
belonged to one union that that was all that was necessary for
him to belong to and that this was the union, the way it was
explained to me, to keep any other organized union or anyone
else from organizing a union in the plant.
Neither Beckner nor LaBritton was called as a witness by the re-
spondent to deny the aforesaid testimony, nor was any explanation
made as to why they were not called. We find, as did the Trial
Examiner, that the incident concerning LaBritton and Beckner took
place substantially as described by Naron.
Presenting a contrast to the freedom with which the Association
conducted its affairs within the plant is the testimony of Naron re-
garding an incident involving Joseph F. Gandara, the respondent's
timekeeper and personnel manager, which occurred shortly after the
Union began its organizational campaign on August 9, 1939.6 Ac-
cording to Naron's uncontradicted testimony, Gandara showed him a
-Union circular which he had found in the plant and instructed him
`-`not to let one of those stay anywhere inside."
Sometime prior to January 7, 1938, the Association evidently was
having difficulty either in collecting dues or in getting members,
for according to Alvarez, at about that time he decided, with the re-
spondent's permission, to institute the check-off system for the Asso-
ciation dues. Accordingly, Alvarez obtained a small book and headed
it with the statement that the undersigned employees authorized the
respondent to deduct 25 cents per month from their respective salaries
and turn the amounts so deducted over to the Association. Alvarez
solicited the employees during.' working hours and succeeded in ob-
taining about 200 signatures. In this connection testimony was given
by Board witnesses Pedro Torres and Santiago Hernandez as to the
6 we find that Gandara, although classified by the respondent as a timekeeper, was in
effect its personnel manager. Gandara had the authority to interview and select new
employees subject to the approval of the foremen In practice , however, the foremen
rarely, if ever, disapproved of the choice made by Gandara Gandara testified that his
"duties with the Peyton Packing Company are namely the time -keeping and the bringing
to the plant of employees that the company may want from time to time and also to visit
the employees of the company that may need assistance in the way of sickness or death
and also generally to try to create good will wherever I can for the company " Gandara
was also the editor of "El Peytonero ," a bimonthly newspaper published by the respondent
and distributed to all the employees.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances under which they signed the dues-deduction book.
Torres, who, prior to signing the book, had not joined the Associa-
tion, testified that after observing Superintendent Kessler in con-
versation with his foreman, Sam Cordova, he went to Cordova, made
inquiry as to the nature of the conversations he had with Kessler, and
was advised by Cordova that he [Torres] "was wanted in the office"
because "they couldn't take the 25 cents from our checks without
my signature." According to Torres, he and four other employees
went to the general office of the respondent and in the presence of
Alvarez and Kessler, signed the dues-deduction book.
Hernandez testified that, while working in the pork-cutting de-
partment with about 13 other employees, Superintendent Kessler
told us
... that we should go down in groups to the beef cooler
and that Manuel [Alvarez] was there with the book and that
we sign that book to belong to the Association and then Manuel,
when we signed the book, told us that we should pay 25 cents
monthly so that we could in that manner belong to the
Association.
Accordingly, Hernandez testified, "about six of us went down first
and then the rest of them went down."
Cordova denied the testimony of Torres, and Kessler denied the
testimony of both Torrez and Hernandez. Alvarez testified that
neither Cordova nor Kessler gave him any aid or assistance in ob-
taining the employees' signatures. An analysis of the testimony
given by Kessler and Alvarez reveals its evasive and contradictory
nature, while the denials made by Cordova are not convincing. On
the other hand, the testimony given by Torres and Hernandez was
plausible, direct, and straightforward, and was credited by the' Trial
Examiner, who had an opportunity to observe the witnesses. Under
these circumstances we credit the foregoing testimony of Torres and
Hernandez as substantially true. Our conclusion in this respect is
'buttressed by other indicia of the respondent's willingness to give
aid and assistance to the Association, as well as by the fact that
when the check-off system was put into effect the Association had more
members than at any other time in its existence. Alvarez's unusual
success in obtaining signatures and new members can only be at-
tributed to the respondent's assistance, as described in the testimony
of Torres and Hernandez.7
Although the Association did on occasion intervene on behalf of the -
employees in regard to specific grievances, it evidently stressed its
7 According to the respondent's records, dues of Association members were checked off.on
five occasions between January 7 and April 2, 1938. The respondent discontinued the
check-off subsequent to April 2, 1938, because it placed too great a burden on its clerical
staff.
PEYTON PACKING COIVI.PANY, INC. 603
social functions, such as dances and picnics, as a means of attracting
and holding its members.8 The respondent furnished food and trans-
portation facilities for its employees for the annual picnics held by
the Association. Although several witnesses testified that the picnics
were limited to Association members and their guests and that the em-
ployees were told that they could not attend unless they joined the
Association and were up-to-date in their dues payments, Alvarez con-
tended that the respondent made its contributions to the picnics contin-
gent upon their being open to all employees regardless of their mem-
bership or non-membership in the Association, and that although the
Association wanted the picnics limited to members only, "at the last
minute we invited everybody." It is apparent, however, and we find,
that the Association, in its campaign for members, did state that only
paid-up members could attend. Also, as noted above, the respondent
must be considered to have made similar representations since Moss, a
foreman, told Neely that it was essential to belong to the Association
in order to participate in the picnics. It is immaterial, moreover, that
the picnics were not restricted to members of the Association. By
furnishing food and' transportation for the picnics, held under the
sponsorship of the Association, the respondent gave aid and support
to the Association. The respondent's representations that only Asso-
ciation members could attend the picnics only served to make such aid
and support more plain to the employees.
According to the uncontradicted testimony of Vincente Guitierrez,
shortly prior to his discharge, sometime in 1939, his "straw-boss" or
assistant foreman, Rosalio Gonzales, told him that if he did not belong
to the Association he would lose his job. Guitierrez was, however, a
member of the Association at the time that Gonzales made this state-
ment to him. Subsequent to his discharge, Guitierrez went to see Ra-
mirez about the loss of his position. He testified that Ramirez told
him that "I lost my job and he couldn't do nothing else for me because
I didn't pay my dues to the Association." Gonzales and Ramirez
were not called as witnesses nor did the respondent offer any explana-
tion for their failure to testify. We credit Guitierrez's testimony,
as did the Trial Examiner.
The respondent contended that it took no part in the formation of
the Association and gave it no aid, assistance, or support; that it
adopted and practiced a policy of strict neutrality regarding the Asso-
ciation and the organizational desires of its employees and instructed
its supervisory staff accordingly. However, none of the respondent's
8 In this connection, Alvarez gave the following testimony :
Q. -Was that the purpose of your organization , to get everybody in the Peyton
plant to join it?
A Yes it was my idea to get them We wanted to have dances and picnics and
whatever we could.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officials who testified at the hearing could definitely fix the time when
such instructions were issued or received, other than by the minutes
of a meeting of foremen held on April 27, 1938, which indicated that
the foremen were then advised by Miles to follow a "'hands off'
policy . . . in regard to union matters." Since by that date the Asso-
ciation had already been established with the respondent's aid and
support, as set forth above, such advice given to the foremen could not
in and of itself serve to obliterate the effects of the respondent's prior
unfair labor practices. Even assuming, however, that instructions
of a similar nature were issued prior to the formation of the Associa-
tion, nevertheless, the credible evidence shows that they were violated
not only by some of the foremen and Superintendent Kessler, but by
Miles, the very person who, on April 27, 1938, issued the aforesaid
instructions.
The facts as found above lead to the conclusion that the Association
is not free of the respondent's domination and support. Alvarez,
who during part of his 18 years of service with the respondent had
served as a foreman and was friendly to the management, decided
in May 1937 to form a labor organization; this decision becomes un-
derstandable in the light of his avowed purpose to prevent legitimate
labor organizations from organizing the employees. Assuming that
Alvarez did originate the plan to form the Association, he then con-
fided in Miles, and the latter proceeded to aid the organization by
instructing Foreman Lux to get the employees of his department to
join it. Alvarez also obtained the assistance of Ramirez, who was a
supervisory employee, and who later became an official of the Associa-
tion. It is thus apparent that the origin of the Association was not
due to the freely expressed desires of the respondent's employees to
form an independent labor organization, but rather was due to the
aid and support of the respondent, if not altogether engineered by it.
Thereafter, the Association openly solicited members and collected
dues during working hours, and posted notices of its activities within
the plant. As set forth above, several of the respondent's foremen
advised the employees to join the Association, and, thereafter, the
check-off was instituted with the active assistance and cooperation of
the respondent. It also contributed food and transportation facilities
to the Association picnics and the Association thus received support in
advertising the benefits in becoming and remaining a member.
We find that by the foregoing the respondent dominated and inter-
fered with the formation and administration of the Association, and
contributed financial and other support to it, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
PETTONT PACK 1NG COMPANY, INC. 605
B. Interference, restraint, and coercion
Three Board witnesses,, Vincente Guitierrez, George W. Stopani,
and James Reade placed Gandara as being in the vicinity of the
Union's meeting hall on occasions shortly before scheduled meetings.
Guitierrez testified that he saw Gandara standing across the street
from the hall evidently observing those going into the meeting.
Stopani testified that Gandara was -pointed out to him_ as sitting in
his automobile parked across the street from the hall. According to
Reade, Gandara drove past the rear entrance of the union hall, and
shortly thereafter drove by again.
While Gandara admitted that he may have been in the vicinity of
the union hall "because I am all over town and I park on Texas Street
(where the union hall is located) many times, did, then and do now
and have done before," he stated, "I wouldn't have deliberately stood
near the C. I. O. hall while they were having their meeting at any
time." Nevertheless, we are not satisfied with the explanation made
by Gandara that his presence in the vicinity of the union hall on the
several occasions described by the Board's witnesses was just coinci-
dental, particularly since he was placed there just prior to scheduled
union meetings. Moreover, Gandara testified that on one occasion he
encountered two employees "that claims to have been mixed up with
the C. I. O. and I stopped and talked to them." With regard to this
incident, Gandara testified as follows :
Q. Was it your intention to go anywhere around the C. I. O.
hall, or was it the half a block away where it was as close as you
got to the C. I. O. hall that night?
A. That is as close as I got. Furthermore, I knew there was a
meeting on that night and a dodger was distributed all over the
plant, and in knowing that I wouldn't stay around in front of the
hall. Of course, walking down the street, I wouldn't think there
would be any prohibition against it.
This testimony by Gandara does not convince us of the coincidental
character of Gandara's presence in the vicinity of the union hall at the
time of union meetings. While it might have been just by chance that
Gandara was in the vicinity of the union hall and happened to have
been seen in his car by Stopani and Reade, nevertheless, Guitierrez,
whom the Trial Examiner found to be a credible witness, placed Gan-
dara as standing across the street from the union meeting place. Upon
all the evidence, we cannot credit Gandara's denials of his surveillance
of the union meetings, and find, as did the Trial Examiner, that Gan-
dara attempted to ascertain which of the respondent's employees
attended the union meetings.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Antonio Torres testified that several days prior to February, 1, 1940,
his foreman, Thompson, "told me I had better watch out with the
C. I. O. button on, I might lose my job for that." Thompson denied
making the aforesaid statement, but admitted that at about the time
the alleged conversation took place, several of the employees in the
department, including Torres, who had been advised that they were
to be laid of on February 1, 1940, due to a reduction in force, began
wearing "C. 1. 0. buttons" for the first time. We do not credit Thomp-
son's denial and find, as did the Trial Examiner, that Thompson made
the foregoing remarks substantially as testified to by Torres.
We find that by Gandara's surveillance of union meetings, and by
the foregoing remarks of Thompson, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.9
C. The -discharge of Pedro Torres -
The complaint alleges that the respondent discharged Pedro Torres
on January 18, 1940, and thereafter refused to reemploy him, because
he joined and assisted the Union and engaged in other concerted
activities for the purpose of-collective bargaining or other mutual aid
or protection.
Torres was hired by the respondent in October 1937 as a machinists'
helper, and continued as such, doing mechanical work, until he was
laid off on January 18, 1940. As has been described above, Torres did
not join the Association until the dues-deduction system was put into,
effect and, following its discontinuance, ceased paying dues except on
one occasion when he wanted to attend an Association picnic. He never
attended any Association meetings. He joined the Union in -October
1939. Thereafter, Torres was particularly active in soliciting mem-
berships for the Union and, when some of the employees were afraid
to attend the regular union meetings, held three meetings at his home.
The respondent denies that it knew or believed that Torres was a union
member. However, Torres testified that prior to the time that he was
notified of his lay-off, he conspicuously wore his union button on two
or three occasions. Furthermore, as we have found above, the respond-
ent engaged in surveillance of union meetings.
9 Evidence was received in support of the complaint , concerning two publications,
entitled "Vamos a Aclarar Las Cosas " and "Confucio Dice," containing statements derog-
atory to the Union, which were distributed among the employees. These articles were
written by Manual Alvarez and printed at his own expense in answer to written attacks
made upon him. The evidence is insufficient to warrant a finding, however , that the
respondent was responsible for the preparation and the circulation of these documents
Further evidence was adduced concerning a called meeting of the employees on January 16,
1940, to protest a proposed reduction in freight rates by the Texas Railroad Commission,
which , if promulgated , would have adversely affected the respondent 's business. This
meeting was addressed by several of the respondent 's officials but the evidence is insuffi-
cient to warrant a finding that the latter made anti -union statements
PEYTON PACKING COMPANY", INC. 607
On January 18, 1940 , the respondent effected a force reduction in
the maintenance , repair, and construction department of its plant,
and Torres and a number of other employees were laid off. Peyton
testified that the reduction in force came about because
We were not fortunate in getting certain contracts , for one
thing, but the major reason was the effect of these freight rates,10
which, if put in effect, would reduce our business very ma-
terially, if not put us out of business in the natural course of
events. Another thing was we were contemplating some ad-
ditions and enlargements to our plant and when the freight rate
situation rose up it was so serious that we decided that we
couldn't proceed with any improvements or enlargements. We
had started in to build up the maintenance and repair gang to
be ready to make these major improvements , to have men on
hand and more or less trained to step right into the new con-
struction gang. It has always been our policy to do our own
building.
Accordingly , at a special meeting of the board of directors of the
respondent on January 16, 1940, it was decided "that all contemplated
improvements to the plant other than what has been started be sus-
pended, and that the new construction department be dispensed with
at an early date, and that the repair department be reduced to a
size necessary only for current repairs."
In determining what employees were to be laid off , Peyton testified
that the factors of efficiency , plant seniority , and general ability were
considered . Kessler, who was in direct charge of the selection of the
employees to be laid off, testified that, in addition to the three factors
stated by Peyton , the matter of economy was also considered. At
the hearing the respondent produced a list of the employees in the
maintenance , repair, and construction department . Next to the name
of each employee appears the date when he began to work for the
respondent. Eleven of the thirty employees appearing on said list
were laid off on January 18, 1940, and two were transferred to other
departments . While two helpers, junior to Torres in point of serv-
ice were not laid off , Kessler testified with respect to them that they
were retained because they were getting 30 cents per hour whereas
Torres received 42 cents per hour. When questioned as to why Torres
was not offered the position of one of the helpers at a reduction in his
wages to 30 cents per hour, Kessler testified that "Torres had been
kicking about his pay continuously before that ." Kessler's testimony
in this respect is corroborated by Torres ' own testimony . The only
10 See footnote 9, supra.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other helper in the department doing mechanical work who was paid
as much as Torres was one Spier, who, however, had greater plant
seniority than Torres.
Cordova testified that the mechanical work done by Torres prior
to his lay off was taken over thereafter by Arthur L. Shaver, the
head machinist, and Paul Valenzuela, an iron worker, and that no
new helper had been employed to do the work formerly done by
Torres. Although it also appears from Cordova's testimony on cross-
examination that a new helper, Rodrig Enriquez, was employed in
the department at some time within the 6 months preceding the hear-
ing, there is no showing that Enriquez was employed to do work
formerly done by Torres.
While the respondent's anti-union attitude and the fact that Torres
was an active member of the Union casts some suspicion on his selec-
tion by the respondent as one of the employees to be laid off at the
time of its force reduction, we find that the evidence is insufficient to
warrant a finding that Torres was selected for lay off because of his
union membership and activity. We shall accordingly order the
complaint dismissed in so far as it alleges that the respondent
discriminated with respect to Torres' hire and tenure of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and take
certain affirmative action necessary to effectuate the policies of the
Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Association and contributed
financial and other support to it. The effect of the respondent's
domination of, interference with, and support to the Association can
be removed as an obstacle to the free exercise by the employees of their
rights to self-organization guaranteed in Section 7 of the Act only
by our ordering the respondent to withdraw all recognition from
the Association as the representative of any of its employees for the
purpose of dealing with the respondent concerning grievances, labor
PE'YTON PACKING COMPANY, INIC. 609
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, to disestablish the Association as such representa-
tive, and to cease and desist from dominating or interfering with the
administration of the Association or with the formation or admin-
istration of any other labor organization of its employees and from
contributing financial or other support to the Association or any
other labor organization." We will also order, in order to restore
the status quo, the respondent to reimburse each of its employees from
whose- wages it deducted or checked off dues in the Association, for
the amounts thus deducted from his wages."
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Packinghouse Workers Organizing Committee and Employees'
Association of the Peyton Packing Company are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. By dominating and interfering with the formation and adminis-
tration of Employees' Association of the Peyton Packing Company
and by contributing financial and other support thereto, the respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (2) 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 has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
u Together with its exceptions herein the respondent submitted a certified copy of minutes
of a meeting of the Association held on January 30, 1941, at which the Association was
dissolved . While we do not pass upon the extent to which this document is entitled to
consideration in the absence of a motion to make it a part of the record, we note that it
does not appear that the respondent has ever taken any steps to inform its employees
that it was withdrawing its support trom the Association or disestablishing it as a repre-
sentative of its employees . Under these circumstances , we find it necessary , in order to
effectuate the policies of the Act, to enter an order such as that described above and to
require in addition the posting of appropriate notices to notify the employees of the dis-
establishment of the Association and that the respondent will not dominate, interfere with,
or contribute support to any other labor organization of its employees.
v See Matter of Virginia Electric h Power Company and Transport Workers Union of
America, 20 N. L. R. B . 911, set aside , Virginia Electric and Power Company v. National
Labor Relations Board, 115 F. ( 2d) 414 (C. C. A. 4), cert. granted, 61 S. Ct. 826.
610, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c);of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Peyton Packing Company, Inc., its officers, agents, suc-
cessors, and assigns, shall:
L. Cease and desist from :
(a) Dominating or interfering with the administration of Em-
ployees' Association of the Peyton Packing Company or with the
formation or administration of any other labor organization of its
employees, and from contributing financial or other support to Em-
ployees' Association of the Peyton Packing Company or to any other
labor organization of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Employees' Association of the
Peyton Packing Company as a representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment, and completely disestablish Employees'
Association of the Peyton Packing Company as such representative;
(b) Reimburse each of its employees whose dues were checked off
for the amounts thus deducted from their wages;
(c) Post immediately in conspicuous places at its El Paso, Texas,
plant, and maintain for a period of not less than sixty (60) consecu-
tive days from the date of posting, notices to its employees stating:
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; and (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent engaged in unfair
labor practices within the meaning of Section 8 (3) of the National
Labor Relations Act.