Peyton Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1961

129 N.L.R.B. 1275 (N.L.R.B. 1961)

PEYTON PACKING COMPANY, INC. 1275
eligible to vote, as a matter of law ; while their permanent replace-
ments were permitted to vote. To eliminate such voting imbalance
between these two groups of employees, who would vie after the strike
for the same jobs, Section 9(c) was specifically amended so as to per-
mit replaced economic strikers to vote. We are satisfied that this
statutory scheme contemplated a corresponding right of replacements
to vote without regard to the eligibility period established for other
employees. Indeed, the facts in this case reveal that any other view
would sanction, in reverse, the kind of imbalance which the amend-
ment sought to eliminate. Accordingly, we hold that permanent re-
placements for strikers, who in no event may exceed the number of
strikers, are eligible to vote if employed on the date of the election.
In view of the basis for the Regional. Director's finding that all
employees on Appendix A were ineligible to vote, he found it un-
necessary to determine whether such employees were replacements for
strikers or were hired as "additional" employees. However, in view of
our holding above, we find that such a determination is necessary a
Accordingly, we shall remand this proceeding to the Regional Director
for further investigation to determine which of the challenged voters
were hired as permanent replacements for the strikers.
[The Board remanded the proceeding to the Regional Director for
the Twelfth Region for further investigation and a supplemental
report showing which of the employees listed in Appendix A, attached
to the Regional Director's report, were permanent replacements of
strikers.]
MEMBER JENKINS took no part in the consideration of the above
Supplemental Decision and Order.
d Although we have overruled the challenges to some of the ballots, we shall withhold
directing that they be opened and withhold resolving the challenges to the remaining
10 ballots as they are not determinative of the election at this time.
Peyton Packing Company, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO. Case,
No. 33-CA-512. January 13, 1961
DECISION AND ORDER
On September 16,1959, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
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 copy of the Interme-
diate Report attached hereto. The Trial Examiner further found
129 NLRB No. 163.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent had not engaged in certain other alleged unfair
labor practices. Thereafter, the Respondent and the Charging Party
filed exceptions 1 to the Intermediate Report and briefs in support
thereof.2
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings,' conclusions, and recommendations 4
'of the Trial Examiner, with the following modifications.
To remedy Respondent's unlawful withholding of payment of the
December 1958 bonus to employees in the unit represented by the
Union, the Trial Examiner recommended that these employees be paid
a bonus computed on the same formula as that used in computing
bonuses paid to employees outside the unit. Since the record does not
establish that the Respondent in the past used the same formula for
computing the bonus payments to all its employees, we shall not limit
the computation here to the one formula but instead shall order the Re-
spondent to pay the employees what each would have received but for
the Respondent's discriminatory withholding. The method of comput-
ing the bonuses may be determined in compliance proceedings.
In addition to requiring that the Respondent make whole its em-
ployees by paying them the December 1958 bonus, we shall order that
the Respondent, upon request, bargain with the Union with respect to
the subject of bonuses. The record establishes that, on October 3, 1958,
the Union was certified as the collective-bargaining representative of
the Respondent's production and maintenance employees at its El Paso
plant. Bargaining negotiations commenced in November 1958, but
there was no agreement on a contract. On December 22, 1958, the Re-
spondent notified the Union for the first time that it would not pay the
December 1958 bonus to the employees in the bargaining unit. Such
conduct indicates an intention on the part of the Respondent to avoid
bargaining with the Union on the subject of bonuses generally. There-
fore, to remedy effectively the violation found, and also to effectuate
The Respondent has moved the Board to dismiss the exceptions of the Charging Party
on the grounds ( 1) the Charging Party did not appear at the hearing and (2 ) that the
General Counsel has not filed exceptions we find no merit in the Respondent 's position,
and the motion Is hereby denied
2 The Respondent has requested oral argument . This request Is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties. The Charging Party has moved to consolidate this case with Cases Nos.
33-CA-558 and 33-CA-581. The motion is denied.
3 In the absence of exceptions to the Trial Examiner ' s findings that the Respondent had
not engaged in surveillance and spying for an unlawful motive and had not authorized the
circularizing of a decertification petition, we adopt these findings pro forma
4 The Trial Examiner recommended , inter alga , that the Respondent be ordered to cease
and desist from Interrogating its employees . As the record does not establish that the
Respondent had engaged in interrogation of its employees , we shall not adopt that
recommendation.
PEYTON PACKING COMPANY, INC. 1277
the policies of the Act, we shall order the Respondent not only to pay
the withheld bonus, but also to bargain, upon request, with the Union
regarding the subject of bonuses. -
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Peyton Packing
Company, Inc., El Paso, Texas, its officers, agents, successors, and as-
signs, 'shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or in any other
labor organization of its employees, by discriminating in regard to
hire or tenure of employment, or any term or condition thereof.
(b) Threatening its employees with reprisals for engaging in union
activities.
(c) Depriving its employees of bonuses or other regular emolu-
ments because they have engaged in union activities.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their rights to self-organization, to form,
join, or assist any labor organization, to join or assist Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO,
to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from any or all
such activities.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Offer to Julio Hernandez immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of earnings suffered by reason of the discrimination against
him, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Make whole its employees by payment of the December 1958
bonus, to those employees who did not receive it, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy"
and our Decision herein.
(c) Upon request, bargain collectively with the Union with regard
to bonuses.
(d) Rescind rule 8 of its October 31, 1958, rules or any other rule
which restricts employees from engaging in union activities on com-
pany premises during nonworking time.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amounts of backpay and
bonuses due under the terms of this Order.
(f) Post at its plant at El Paso, Texas, copies of the notice attached
hereto marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof, and be maintained for a period of
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.
(g) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
MEMBER KIMBALL took no part in the consideration of the above
Decision and Order.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NoTIcz To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activity in behalf of,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, or any labor organization of our employees,
by discriminating in any manner in regard to hire or tenure of em-
ployment, or any term or condition thereof.
WE WILL offer Julio Hernandez immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to seniority or other rights and privileges, and make him
Whole for any loss of pay suffered as a result of the discrimination
against him.
WE WILL make whole our employees by payment of the Decem-
ber 1958 bonus to those employees who did not receive it.
WE WILL, upon request, bargain collectively with the Union
with respect to bonuses.
WE WILL NOT threaten our employees with reprisals for engag-
ing in union activities.
PEYTON PACKING COMPANY, INC. 1279
WE WILL rescind rule 8 of our October 31, 1958, rules or any
other rule which restricts our employees from engaging in union
activities on company premises during nonworking time.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to join
or assist Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities.
All our employees are free to become or remain members, or to re-
frain from becoming or remaining members, of the above-named or
any other labor organization.
PEYTON PACKING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard at El Paso, Texas, on May 11, 19, 20, 21, and 22, 1959,
pursuant to a complaint of the General Counsel against Respondent, Peyton Packing
Company, Inc. The issues litigated were whether Respondent discharged an eIn-
ployee for his union or concerted activities in behalf of Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, herein called the Union, and
engaged in various acts of interference, restraint, and coercion, all within the mean-
ing of Section 8(a)(1) and (3) of the Act. Oral argument at the close of the
hearing was waived and briefs have been submitted by the General Counsel and
Respondent.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Peyton Packing Company, Inc., is a Texas corporation with its principal office
and place of business at El Paso, Texas, where it is engaged in the business of meat
packing and cattle feeding. During the 12-month period preceding the issuance
of this complaint, Respondent sold and shipped products valued in excess of $50,000
to points outside the State of Texas. I find that the operations of Respondent affect
commerce.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO,
is a labor organization admitting to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
An election having been won on September 25, 1958, the Union was duly certified
on October 3, 1958, as the bargaining representative of Respondent's approximately
500 employees with the customary unit exclusions. The General Counsel has
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attacked herein a number of alleged acts of interference, restraint , and coercion,
both preceding and following the election ; the discharge of employee Julio Her-
nandez of September 15, 1958; and the promulgation on or about October 31, 1958,
of a rule allegedly unlawfully restrictive of solicitation in behalf of the Union.
B. The rule
The complaint alleges that Respondent promulgated and distributed a set of rules
to its employees on October 31, 1958, which included the following:
8. The only soliciting allowed at this plant will be for United Fund or other
recognized and established charities, and these must be approved by the Com-
pany. No other soliciting of any kind will be allowed.
Respondent readily concedes that it promulgated the rule, but resists the con-
tention of the General Counsel that it constitutes an unlawful restriction upon the
union activities of its employees during nonworking time. However, Respondent
does not dispute that this rule was intended to be applicable to nonworking time
and this is reflected in the testimony of William Kilgore, independent industrial
relations counsel in El Paso, who has been advising Respondent since June 1957.
According to Kilgore, he participated in a codification of Respondent's rules, and
a set of rules, some 30 in number, was distributed to employees on or about October
31, 1958. These rules, slightly rephrased in some cases, included rule 8 quoted
above. Kilgore claimed that in his conferences with management representatives he
stated that rule 8 properly should be made applicable only to soliciting during
working time. The management representatives in turn replied that they wanted it
precisely in the form it was in because every so often reports came in of employees
selling Mexican lottery tickets on plant premises, this constituting an allegedly illegal
act, "and they wanted sufficient protection there in case that occurred any more in
the plant property."
Kilgore further testified that he consented to the wording on the basis of this
explanation; that the rule was admittedly directed both to working as well as non-
working time; and that he had no knowledge that any explanation of the wording of
this rule, and the reason therefor, was never made to employees. Nor is there any
evidence that he ever recommended that such notification be given to employees.
One immediately notes however that the rules are elsewhere broad enough to take
care of this contingency involving the lottery tickets. The rules are prefaced by a
statement that violations thereof will be grounds for disciplinary action or discharge.
The very first rule, rule 1, lists as a cause for discharge or discipline "Theft, sabotage,
gambling or deliberately creating a fire hazard." [Emphasis supplied.), Rule 5,
inter-alia forbids "criminal conduct, or suspicion thereof, on the part of any em-
ployee on or off the premises." It is readily apparent that these other rules are
ample to take care of the situation and it is significant that Kilgore, the person
passing upon the validity and substance of these rules, is one skilled in the field of
industrial relations.
The record is replete with evidence that raffles of various items and collections for
sick employees took place on a number of occasions, although the evidence dis-
closes that this activity took place primarily during the noon lunch period. While
there is not much evidence of employer knowledge thereof, it is difficult to believe
that these matters, which were conducted openly, so far as the record discloses, come
as a complete surprise to Respondent. To the contrary, there is uncontroverted
evidence that Foreman Pablo Valenzuela contributed to these collections; that
Forelady Rosa Gonzales had conducted a raffle or raffles; and that a raffle was con-
ducted in the presence of Foreman Montalvo.
There is little support for Respondent's claim that it had for years promulgated
no-solicitation rules, at least insofar as it would have one believe that its employees
were cognizant thereof. Vice President Charles Chauvet testified that he posted a
similar rule in April 1957, that a rule identical with rule 8 had been posted by him
in May 1958, and that the October 1958 codification incorporated the May 1958
rule. While it is true that Chauvet testified that he personally posted the May 1958
rule and that it remained posted for a period lasting from 1 day to 2 weeks, the
testimony of his employees strongly refutes such a claim.
Almost a dozen employees with many years of service uniformly testified that
they never knew of the existence of any no-solicitation rule, at least not prior
to the distribution of the rules in October 1958. Perhaps the best example of
the testimony in this regard is that of Antonio Apodaca, who worked for Respondent
for 27 years and who had previously served as a foreman. He testified, and I find,
PEYTON PACKING COMPANY, INC. 1281
that he never saw a rule against solicitation posted and that he was never told by
management to enforce such a rule; significantly he was a foreman until 2 or 3 years
ago. I find, therefore, that Respondent, prior to October 1958, had not, at least for
many years, publicized to its employees any rule against union solicitation; that it
promulgated rule 8 at that time; and that rule 8 was construed, consistent with its
language, as being applicable to union activity during nonworking time. Indeed as
will appear below, Respondent allegedly applied the rule in the case of Julio-
Hernandez who was previously discharged on September 15, 1958, although in his
case the alleged activities took place during working time.
It is by now well established that an employer may not restrict union activities by
employees outside of working hours, although undertaken on company property-
Such a rule is presumed to be an unreasonable impediment to self-organization and
`herefore discriminatory, in the absence of evidence that special circumstances make
.tie rule necessary to maintain production or discipline. Republic Aviation Corpora-
tion v. N.L.R.B., 324 U.S. 793, 803. See also N.L.R.B. v. The Babcock & Wilcox
Company, 351 U.S. 105. Respondent has cited the Supreme Court decision in
N.L.R.B. v. United Steelworkers of America, CIO, 357 U.S. 357, but that case in
no way negates a finding that a rule against union solicitation is too broad, under
the present circumstances. It involved an admittedly valid no-solicitation rule and
the very narrow question whether an employer who actively engaged in antiunion
solicitation could properly enforce an otherwise valid no-solicitation rule against
a union.
Respondent apparently attempts to bring this case within the exception permitting
promulgation of a broad rule on the ground that it is necessary to maintain plant
discipline. Firstly, as set forth, although the record is replete with evidence of re-
lated activity such as raffles, there is not any direct evidence in support of Kilgore's
claim that the sale of lottery tickets was a problem. Indeed, there is no evidence
that they were sold except as reflected in the testimony of Kilgore. Secondly,
although Chauvet disclaimed knowledge of any raffles and related activities, he was
silent on the question of lottery tickets. Thirdly, as demonstrated, Respondent
already had rules which were broad enough to cope with the situation, if in fact it
did exist, and indeed these rules were in the same codification.
I find, in view of the foregoing, that rule 8, quoted above, is an unlawful restric-
tion upon the rights of employees to self-organization and that by promulgating said
rule, to the extent that is applicable to nonworking time, Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act, within the meaning of Section 8(a) (1) thereof. Time-O-
Matic, Inc. v. N.L.R.B., 264 F. 2d 96 (C.A. 7); Western Corrugated, Inc., 122
NLRB 1021; The Great Atlantic & Pacific Tea Company, 123 NLRB 747; and
Limestone Manufacturing Company, 117 NLRB 1689. See also N.L.R.B. v. Hill &
Hill Truck Line, 266 F. 2d 883 (C.A. 5).
C. The discharge of Julio Hernandez
Julio Hernandez entered the employ of Respondent in July 1950 and at the time
of his discharge on September 15, 1958, was assigned to the maintenance depart-
ment under Foreman Pablo Valenzuela as a pipefitter. During his vacation from
August 15 to 21, 1958, he became interested in the Union; signed a card; spoke at
several meetings at the union hall; and asked a number of coworkers to support the
Union According to Vice President Charles Chauvet, it was a well known fact
that Hernandez "was actively soliciting at the plant." It is clear from Chauvet's
testimony that he meant solicitation in behalf of the Union and I so find.
Hernandez' employment record prior to this vacation was exemplary, so far as
this record demonstrates. However, after his return to work, his troubles started in
the form of three incidents which, according to Respondent, brought about his dis-
charge. They are reflected in three disciplinary reports found in Respondent's
records and dated August 25 and 28 and September 15, 1958, these resulting in his
discharge on September 15; the last incident, it may be noted, allegedly took place
on Friday, September 12.
Turning to a consideration of the three incidents which allegedly resulted in the
discharge of Hernandez, a comparison of the respective versions of the witnesses
for the General Counsel and those for Respondent leads one to speculate whether
they relate to the same case. Yet, as will appear, upon a consideration of these
incidents and particularly the second incident of August 28, the contentions of the
General Counsel withstand close scrutiny better than those of Respondent.
586439-61-vol 129-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The August 25 incident
Vice President Charles Chauvet testified that the first time any complaint arose
about Hernandez was on August 25.1 On that occasion, Foreman Tomas Bueno,
who did not testify herein, reported to the personnel director, apparently one Young,
who also did not testify herein, that Hernandez had solicited the union membership
of a coworker while both were supposed to be at work. The personnel director re-
ported this to Chauvet who in turn spoke with Foreman Bueno. Chauvet ascer-
tained that this had taken place while Hernandez and the other employee, Eladio
Valenzuela, who also did not testify herein, were repairing steam valves and that
Hernandez attempted to harangue Valenzuela about the Union within the hearing of
Bueno. Chauvet's information from Bueno also was to the effect that he did not
know who started the talk, that Valenzuela was attempting to continue his work,
and that no discipline of Valenzuela was contemplated because he was the recipient
,of these remarks.
Chauvet immediately telephoned his industrial relations consultant, Kilgore, who
made a record consistent with his customary but not uniform office practice that
Chauvet had telephoned. Chauvet asked Kilgore if he could discharge Hernandez
for talking "Union" to another employee while both were at work. Kilgore testified
that Chauvet said he had reports from various foremen that Hernandez was talking
while he was supposed to be at work; none of these other incidents or informants
are identified for the record. Kilgore asked if Chauvet had actually heard the
incident and whether Hernandez had received any prior reprimands; in both cases
Chauvet replied in the negative. Kilgore advised him only to make a report for his
records on Respondent's standard personnel form. Chauvet did so and the report
stated as follows:
Julio Hernandez was seen and heard soliciting Eladio Valenzuela while the
two of them were repacking steam valves in the inedible rendering department.
Both men were kept from their work for a time because of this action on
Julio's part which was contrary to a long-standing Company rule against
soliciting.
I made a telephone call to W. P. Kilgore , and explained the circumstances to
him. He told me to do nothing for the present , but to reprimand Julio the
next time that he violated our long-standing rule against soliciting.
Hernandez testified that he had never been warned or reprimanded except for an
incident preceding his vacation . It is unnecessary to set this forth because it was
manifestly a different matter and a situation in which Hernandez was not at fault,
'having been whipsawed between two officials who wanted him to do different jobs
.simultaneously. Hernandez' testimony is in part corroborated by that of his regu-
lar helper Federico Lucero who knew Eladio Valenzuela and denied that Hernandez
had discussed the Union with Valenzuela during August or September 1958 while
-they were at work. He did recall that Hernandez had discussed the Union with only
,two people, viz, Chauvet, presumably at the time of his discharge described below,
.and with Master Carpenter Muro, the latter talk taking place on September 15.
The testimony of Hernandez discloses that this latter talk took place just before
work on September 15 and that Hernandez was discharged several hours later. The
record will not support a fiinding that Muro was a supervisor under the Act but
reveals that Muro, who also did not testify herein, asked Hernandez what he thought
.of a September 12 form letter from Respondent to all its employees wherein Re-
spondent presented its arguments against union representation as the result of the
pending election. Hernandez replied that it was a well-written letter but that it
.came a little late. Muro, as the record elsewhere discloses, was active in the distribu-
tion of a petition designed to oust the Union from its newly acquired status as
,bargaining representative.
In any event , even on Respondent 's version , it is clear , and I find , that no warning
was given to Hernandez on this occasion. More particularly, the incident was not
seven mentioned to Hernandez by an employer which admittedly actually prides
itself on its openness with employees and with availability at all times to employees,
even to the extent, as disclosed elsewhere in the record, of having rank-and-file em-
ployees appear at a private party in the evening to discuss their problems. As a
result, I can only conclude that the offense, if it did occur, was not deemed of
sufficient gravity to mention to the employee.
1 Chauvet, his brother, Jack, and his father. Seth, make policy decisions at Respondent
B3owever, the handling of labor relations is the province of Charles Chauvet.
PEYTON PACKING COMPANY, INC. 12833
2. The August 28 incident
The second alleged incident , that of August 28, is set forth herein in some detail
because it presents a number of factors which are significantly illustrative of Re-
spondent 's approach to the case and its motivation herein. Again , as in the previous
incident , the testimony of the witnesses for the General Counsel is diametrically
opposed to that of the witnesses for Respondent . But here, even on the face of
Respondent 's version , there is evidence of changing of personnel action reports as
well as testimonial exaggeration on the part of Respondent 's witnesses at a top policy-
making level.
In short , there is a claim by Respondent that on August 28, 1958, Julio Hernan-
dez was assigned to perform a plumbing job involving a stopped up pipe on the beef
kill floor but neglected it in order to solicit an employee with respect to the Union.
Hernandez admitted having performed an assignment such as this prior to his
vacation , which took place between August 15 and 21, but not thereafter. His
helper, Federico Lucero, testified in similar fashion that the two of them had worked
on these pipes several times; that these occasions had all been prior to Hernandez'
vacation ; and that to his knowledge Foreman Pablo Valenzuela had not reprimanded
Hernandez for loafing on any of these occasions . Similar corroborative testimony
was presented by Reynaldo Chavira, an employee of the hide department where the
stopped up drain was located , who recalled that Hernandez worked on the pipes
during the second week of August . The alleged solicitation by Hernandez involved
employee Herrera who was assigned to work on the repair of a sprinkler head in
the hide department . According to Chavira, the sprinkler heads had been fixed
two or three times prior to August but not in August or thereafter.
Turning to Respondent's case, Maintenance Foreman Pablo Valenzuela testified
that on August 28, 1958, having been contacted by the foreman of the slaughter
house, Salvador Montalvo, he sent Hernandez and his helper to fix a stopped up
drain on the beef kill floor. In order to adjust the drain, it was necessary to go to
the floor below , the hide room, and work on the traps which are located there.
Some 25 minutes later, Foreman Montalvo contacted Valenzuela , told him the
job was not done, and that the Inspector from the U.S. Department of Agriculture
was threatening to stop slaughtering if the condition was not remedied. According
to Montalvo , he had requested Hernandez by name for the job; discovered sometime
later that the condition had not been remedied; went to the hide room; discovered
Hernandez talking with another employee some distance from the site of the drain;
and immediately reported this to Valenzuela . It may be noted that although
Valenzuela had-a definite recollection that -this took place on August 28, Montalvo
testified only that he thought it was sometime in August.
According to Valenzuela , he proceeded to the hide room , found Hernandez talking
with maintenance department employee Herrera who was there on another project;
and told Hernandez , "The next time I send you to do a job, I want you to go ahead
and start doing the job" on penalty of losing his job . Herrera testified that he was
working on the sprinkler head in the hide department late in August, that Hernandez
came over from his job and explained the benefits of the Union , that Valenzuela
then came down and spoke to Hernandez , and that he did not hear their conversation.
He placed Hernandez ' helper, Lucero, on the scene.
It is the subsequent handling of this incident which I deem to be significant herein.
In the following discussion I am assuming that an incident did take place as Re-
spondent contends and am relying on the testimony of Foreman Valenzuela, al-
though I am far from convinced that the incident did take place on August 28 rather
than on a date prior to the vacation of Hernandez.
Foreman Valenzuela testified that he, Valenzuela, "immediately " reprimanded
Hernandez , as set forth above, and then reported the incident to Vice President
Charles Chauvet , consistent with what he described as company policy, and was
then instructed by Chauvet to write out a report. Chauvet , in his testimony, placed
Valenzuela in the position of contacting him and asking for his advice in the situation,
whereupon he instructed Valenzuela to reprimand Hernandez . Chauvet, in turn,
-testified that he immediately telephoned Kilgore, and the latter supported his testi-
mony. According to Kilgore , he asked Chauvet if he himself had seen or heard
Hernandez on this occasion and Chauvet replied in the negative. Kilgore then
stated that Hernandez should be warned and the incident duly recorded.
An inconsistency appears in another of Kilgore's telephonic records wherein he
allegedly jots down the gist of the employer contact. In this instance, he jotted
down that Hernandez was "talking to employees about Union when he should be
in another department cleaning drain pipes-can we fire him ." [ Emphasis supplied.]
However, the crux of the incident, as relied upon herein by Respondent, is that
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hernandez was not in a department other than the one he was supposed to be in.
He was in fact in the department to which he was assigned but, according to Valen-
zuela, had not yet done the assigned job and was not relieving the drain pipe
situation.
Furthermore, the testimony of Chauvet is that he reported to Kilgore that the
Government inspector had stopped the beef kill and,the testimony of Kilgore is that
Chauvet so reported it. However, again turning to the testimony of Valenzuela,
one notes rather that the Government inspector was threatening to stop the beef
kill if the situation was not remedied. This again is an instance of exaggeration of
the situation on the part of Chauvet.
At this point, the written disciplinary report prepared by Valenzuela comes into
the picture which is clouded by the existence of another report almost identical
withat that proffered by Respondent but with certain language changes therein.
This other report is described by Kilgore, who is familiar with Respondent's per-
sonnel setup, as unauthorized. However, as the General Counsel in his brief aptly
terms it, the explanation made by Respondent as to why the other report was un-
authorized "is confusing to the point of absurdity."
As for the preparation of the so-called authentic report, Valenzuela testified that
within 3 or 4 days after ,the incident he, assisted by Harry Young of Respondent's
personnel office,2 wrote out a report of the incident in longhand. It was typed the
next day and Valenzuela was called in to sign it in the presence of Chauvet and
Young, there being only one copy presented to him. Both the report received in
evidence as Respondent's Exhibit No. 11 and the allegedly unauthorized one later
received in evidence as General Counsel's Exhibit No. 12 consisted of typing placed
upon identical company personnel forms captioned "RECORD OF REPRIMAND
AND DISCIPLINARY ACTION." These forms are found hereinafter as Ap-
pendixes A and B, designating the so-called authentic and nonauthentic forms, re-
spectively. The actual forms are prepared in purple ink which delineates the lines
and the boxes and are apparently produced by the Ditto duplicating process or a
similar one.
Valenzuela, after checking as a reason for discipline, "VIOLATION OF RULES,"
checked four specifications thereunder. Three were checks in the boxes designated
for leaving work place; misconduct; and loafing, respectively. The fourth was
added in the box provided for other grounds and constituted the word "Soliciting." 3
Valenzuela indicated in the appropriate box that a warning had been given, and then
provided the following description of the circumstances:
Approximately at 11:30 AM I sent Julio Hernandez to the Beef Killing Floor
to repair a "Stopped Up" pipe. The Killing Floor Foreman, Salvado [sic]
Montalvo had phoned me requesting an immediate repairing of the pipe.
Twenty minutes later after I sent Julio to do the repair job, I went to check
on the job and found that it had not been done; then proceeded to look for
Julio and I found him in the Hide Cellar, loafing and talking to Miguel Herrera
about the union and keeping him from his work.
I reprimanded Julio for this misconduct and warned him that if he ever re-
peated such conduct of loafing, talking or going into other departments other
than the ones to which he was assigned or failed to attend to an emergency
job promptly, that he would be dismissed. I also warned him that it was
strictly against company rules and policy to allow soliciting of any kind on
Company time or Company property.
This copy was signed by Valenzuela who identified his signature. The nonauthentic
copy merely indicated that it had been signed by Valenzuela who testified that the
latter copy was not the one he had signed. or for that matter one like it. He was
not asked in his testimony to explain any differences between the two forms.
In the so-called nonauthentic form, the following appears as the description of the
circumstances of the incident.
Approximately at 11:30 AM I sent Julio Hernandez to the Beef Killing Floor
to repair a "Stopped Up" pipe. The Killing Floor Foreman, Salvador Montalvo
had phoned me requesting an immediate repairing of the pipe. Twenty minutes
later after I sent Julio to do the repair job, I went to check on the job and found
that it had not been done; then proceeded to look for Julio and I found him in the
9 Young is apparently a one-man personnel department for Respondent except as such
matters are personally handled by Charles Chauvet.
8 The so-called nonauthorized form contained check marks only for the first three
specifications and no notation was made in the box designated "OTHER."
PEYTON PACKING COMPANY, INC. 1285
Hide Cellar, loafing and talking to the Hide Gang and keeping them from their
work.
I reprimanded Julio for this misconduct and warned him that if he ever re-
peated such conduct of loafing, talking or going into other departments other
than the ones to which he was assigned or failed to attend to an emergency job
promptly, that he would be dismissed. Further, I suspected that he was soliciting
and warned him that it was strictly against company rules and policy to allow
soliciting of any kind on Company time and soliciting on Company properties.
As is apparent, in the so-called authentic form, Hernandez is described as "loafing
and talking to Miguel Herrera about the Union and keeping him from his work,"
whereas in the allegedly nonauthentic report the reference is to "loafing and talking to
the hide gang and keeping them from their work." Needless to say, on the face of
Respondent's testimony herein, Hernandez' offense involved Herrera and not the
hide gang and unlike the so-called nonauthentic copy, the topic of union discussion
was introduced.
Again, in the so-called original, Valenzuela stated, " I also warned him that it was
strictly against company rules and policy to allow soliciting of any kind on Company
time or Company property." In the nonauthentic copy, Valenzuela stated, "Further,
I suspected that he was soliciting and warned him that it was strictly against company
rules and policy to allow soliciting of any kind on Company time and soliciting on
Company properties." Obviously, a suspicion has been transformed into a fact.
At this point it appears to be in order to set forth the genesis and later life of the
so-called nonauthentic form. It is undisputed that the document was in the posses-
sion of the General Counsel at the time of the instant hearing and that it is one of
Respondent's standard personnel forms which in fact had been devised by Kilgore.
Kilgore originally testified, when questioned about the document, that he had several
,conferences with a field examiner of the Board about the Hernandez discharge; that
he did not recall turning over a copy of the August 28 report to the investigator; that
he would not deny having turned it over; and that he was unable to state that he had
not previously seen it.
The following day, having in the interim investigated the matter, Kilgore further
testified that Personnel Manager Henry Young had admitted to him, in the course of
his investigation, that he had prepared the report proffered by the General Counsel.
Kilgore still maintained that it was an unauthorized document, but I am unable to
credit this explanation.
According to Kilgore, he had been informed by Young in the course of his investi-
gation that at the time of the August 28 incident Chauvet spoke to Young, whose desk
is some 3 or 4 feet distant from that of Chauvet; that Chauvet had instructed Young
to write up a report of the incident; that Young had admittedly written up a report;
and that the report was typed by Young. Young allegedly conceded to Kilgore that
he received his information by hearing the conversation between Chauvet and others,
including Valenzuela, who entered the office.
Kilgore conceded that he had met with a field examiner concerning the Hernandez
discharge in October, as well as thereafter, and that the document, the so-called un-
authorized report, was in the personnel file when it came into the possession of Kil-
gore some days or several weeks after the August 28 incident, obviously a date prior
to the meetings with the field examiner. Young was not called as a witness herein
and Kilgore indicated that Young was scheduled to leave El Paso on a trip that very
day which was the last day of the hearing.
I am unable, for a number of reasons, to credit Respondent's claim that the report
was unauthorized.
(1) It is conceded that Young or a clerical under his direction typed the so-called
authorized copy, surely an indication that Young was acting in the area of his cus-
tomary authorized duties with respect to the disputed document.
(2) The so-called unauthorized copy is demonstrated to have been in existence at
a date very close to the date of the alleged incident, a reliable indication of timeliness
at least equal to that of the so-called authentic copy, if not more so.
(3) While Valenzuela testified that the disputed copy was not the one he signed, he
did not explain in what respects it was different; as is apparent, I do not believe that
the differences in the two reports are readily appreciable on a quick inspection, as was
the case here, to Valenzuela, one unskilled in labor relations and with an imperfect
grasp of English.
(4) That Young was acting within the scope of his authority in personnel work
is demonstrated by the fact that he was involved in the so-called first incident on
August 25; indeed, it was he who, according to Chauvet, brought the incident to the
attention of Chauvet. It is also of interest to note that Young attended some of the
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating meetings between Respondent and the Union which commenced in
October; the only other participants for Respondent were Charles Chauvet and
Kilgore.
I find , therefore , in view of the foregoing considerations , that if an incident did
take place involving Hernandez in the hide room , whether on August 28 or at an
earlier date prior to the vacation of Hernandez , it is more accurately reflected in
General Counsel 's Exhibit No. 12 and the incident did not relate to solicitation in
behalf of the Union . I further believe and find that Respondent 's Exhibit No. 11
was altered in an effort to strengthen it by bringing into the picture more fully the
matter of union solicitation in violation of at best a dormant no-solicitation rule.
As demonstrated , this rule was not promulgated or even known to a great number
of the employees who testified herein , prior to the codification of the rules on..
October 31, some 6 weeks after Hernandez was discharged.
3. The September 12 incident
The third incident resulting in the decision to discharge Hernandez allegedly took
place on Friday afternoon, September 12, 1958 . Chauvet testified that while on,
an afternoon inspection tour of the plant he discovered that a freight elevator was
stuck between the basement landing and the first floor landing. This elevator is
largely open and, looking down from the first floor landing, Chauvet allegedly
observed Hernandez "actively soliciting" employee Pompeyo Lopez , both men being
assigned to work on the elevator repair.
Chauvet testified that he moved to another position where because of its more
advantageous location he could both see and hear Hernandez but could not be seen
in return . According to Chauvet , as he orginally passed by , he could hear voices
and, although he did not see the speaker , he did recognize the voice of Hernandez.
This conversation had commenced before the arrival of Chauvet on the scene but
it ended while he looked on with both men returning to work.
That afternoon Chauvet tried unsuccessfully to contact Kilgore but did not
reach him until the following day, Saturday , a day on which Hernandez was not
at work. According to Kilgore 's contact report dated on the morning of Sep-
tember 13, Chauvet stated that he had personally heard Hernandez "talking union"
to another employee while working on the elevator . Kilgore testified that Chauvet
wanted to know if Kilgore would approve the action that he thought was indicated,
apparently the discharge of Hernandez . Kilgore in his report indicated that his
response was to recommend the discharge of the man and to record the facts on
the regular personnel form of the Company.
Hernandez was discharged on the morning of September 15 by Chauvet who was
accompanied by his brother , Jack Chauvet, also a vice president of the concern.
This action took place shortly after Hernandez had started work that day and
Hernandez ' helper, Lucero, was also present. Respondent's personnel record, the
form previously described , assigns as a reason solely "soliciting on Company time
and premises" and gives the following circumstances:
On Sept . 12, 1959 at approximately 2 p.m., I discovered that the freight
elevator in the inedible department was inoperative because a dog [a part, not
an animal ] had jumped the rail . It was positioned halfway between the base-
ment and the first floor landings. When I bent down from the first floor landing
to see what was holding up the repairs, I saw Julio Hernandez and Pompeyo
Lopez were involved in a discussion . I walked around to the other door on
the landing where they could not see me and heard Julio tell Lopez that there
was not going to be any bonus that year, but that it did not matter because
the union was going to win the election and they were going to take care of
things. He began to tell Lopez that he should join the union , but Lopez cut
Julio off saying that he did not know how Julio would know whether or not a
bonus was going to be paid and that anyway he, Lopez, did not want anything
to do with the union.
I called W. P. Kilgore, the next day , Saturday, telling him what I had beard
and asked him if this , in view of previous occurrences was not grounds for
dismissal. He told me that it was, and Monday morning I went back with my
brother Jack Chauvet to the tin shop where Julio was working and told him
that he had been warned about soliciting on company time and that he had
continued to violate this important rule, about which he had been previously
warned , and therefore he was discharged.
As for the actual conversation on September 15, there is a conflict between Her-
nandez and Chauvet as to what was said. Jack Chauvet was not called as a witness
PEYTON PACKING COMPANY, INC . 1287
herein and Lucero, although testifying, was not questioned about the incident, except
to testify that he heard Hernandez and Chauvet talk about the Union on an un-
specified occasion, presumably this one. According to Hernandez, Chauvet ap-
proached and stated that he had heard that Hernandez "was trying, or talking union
inside of his plant . . . that he was going to punish me together with anyone that
would talk union in his plant. . That at that time I was discharged . he
did not permit anyone to speak union within his plant. He said for me to leave
and to leave as quickly as I could.. .." Foreman Valenzuela was sent forthwith
to get Hernandez' check and a plant guard immediately escorted Hernandez from
the premises. According to Chauvet, he discharged Hernandez at 9 a.m. on that
date, telling him "that in view of his repeated violations and in view of the fact
that he had been previously warned and he had continued to violate our longstanding
antisolicitation rule, that he was to get his tools and leave immediately." Hernandez'
helper, Lucero, testified that he never worked on an elevator during August or
September; that Hernandez had not worked on the elevator in the week before his
discharge; and that on the workday preceding the discharge, the two men were
working on cattle drinking stalls, an entirely different operation.
Pompeyo Lopez, the other man involved in the incident, presented testimony
corroborative of that of Chauvet. In response to a leading question providing the
date, Lopez recalled talking to Hernandez on September 12. He testified that the
two of them and their respective helpers were working in the area, Lopez on the
press, not further identified herein, and Hernandez on the elevator. According to
Lopez, Hernandez called him over to where he was working and predicted that
Respondent would not pay a yearend bonus because of the activity in the union
campaign. Lopez returned to his assigned working place after a talk which he
variously estimated as lasting 5 to 10 and 5 to 6 minutes. He was unaware that
Chauvet or anyone else had overheard the conversation but conceded that it was
possible. He also testified that the usual plant noise was present from steam cookers
cooking hogs. His first talk with Chauvet on this entire matter was only some days
prior to his testimony herein.
There are a number of factors which, in addition to the demeanor of the witnesses,
persuade me that Hernandez' version of the September 15 discharge conversation
is the more reliable version of what took place, and I so find, and further that a
consideration of the incident itself supports the previous conclusion that Chauvet
was not discharging Hernandez because of a rule but rather was using it as a pretext
to eliminate a prounion employee.
(1) Chauvet claimed that Lopez was supposed to be working on the elevator
whereas Lopez, distinguishing it from the elevator where he had placed Hernandez,
testified that he had been working on the press. This is also demonstrated by the
fact that Lopez went over to the elevator to hold his conversation with Hernandez
and not Hernandez over to Lopez.
(2) On Lopez' version, therefore, Lopez left his place of work to converse with
Hernandez, although in response to an invitation from Hernandez which Chauvet
did not overhear, having allegedly come upon the scene after the talk had started.
(3) Lopez remained away from his assigned work place for at least 5 minutes
but was never questioned about the incident by Chauvet. The latter said that he did
not reprimand Lopez and that he made no disciplinary report because he regarded
his case as different from that of Hernandez. This was because "his end of the
conversation indicated that he wanted no part of it and that he wanted to get back
to work, that he didn't have any time to waste."
(4) Chauvet claimed herein that as he progressed on his plant inspection tour he
recognized the voice of Hernandez on the landing below despite the fact that he
did not see him. Considering the noise at the plant, and the fact that the plant
has a complement of approximately 500, this would appear to be a highly remarkable
accomplishment.
(5) Although Chauvet testified that there was no noise because the equipment
was broken down, Lopez contradicted this, pointing out that the usual noise was
present from the steam cookers.
(6) Chauvet testified that he terminated Hernandez for a continuing violation
of Respondent's rule, as reflected in all three of the incidents theretofore detailed.
As set forth, the rule was not known to the employees prior to October 31 and
further, Respondent attempted to alter the August 28 incident to peg it to this rule
violation.
4. Evidence of motivation; interference, restraint, and coercion
There are also a number of instances of employer enforcement of the rule, herein-
above found to have been too broad in its scope, which reflect on Respondent's
1 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivation in the Julio Hernandez case. Thus, Maria Lopez, an employee of 71/2
years' tenure, was a union member and a union observer at the September 25 elec-
tion. Lopez, who impressed me as an honest witness, uncontrovertedly testified, and
I find, that Charles Chauvet spoke to her several times about the Union. The first
,occasion was about 4 days after the election while Lopez was at work. Chauvet
.approached her and stated that she "should not speak to the girls . . . in regard to
joining the union . If I did he would fire me." She was specifically asked if Chauvet
.stated when and where she should not talk to the girls about joining the Union and
whether he mentioned the rule. In both cases her reply was in the negative.
Approximately 1 month later, Lopez and another employee were directed by
Chauvet to report to his office on the following morning. On that occasion, he
told the two girls that "he was going to lay us off . . . because we were soliciting
the girls." She elsewhere phrased it that Chauvet told them that he was laying them
off "because we were inviting the other girls to join the union." The two girls were
given a 3-day layoff and then reinstated.
Santiago Hernandez testified, and I find, that approximately 2 weeks before the
election Foreman Salvador Montalvo told him "not to speak anything about the
union there because we would get fired." A few days after the election Montalvo,
whose supervisory status is not disputed herein, told a small group of employees
including Hernandez "not to talk about the union because we would get fired."
Hernandez elsewhere put it that the statement was "not to talk anything about the
Union as he would fire the hell out of us there."
During the following February, Montalvo spoke to Hernandez alone while the
latter was at work and told him "not to do what the others had done to join the
union. In other words, to stay away from the union." I find that this last statement
would reasonably be construed by its recipient in the light of the prior threat to fire
the men for discussing the Union and it is so evaluated hereinafter by the Trial
Examiner .4
Domingo Rocha uncontrovertedly testified that on approximately September 19
his coworker, Romero, asked him how he had enjoyed his vacation; it appears that
the inquiry was made at a moment when their foreman, Ortega, chanced to pass.
Soon thereafter Chauvet appeared on the scene and told the two men that "he did
not want us to talk union in there. On the contrary if we didn't stop it, that he
would fire us from the job." Ortega was not called as a witness herein and Chauvet
,did not testify about nor deny this incident; accordingly I have credited this testimony
by Rocha.
Two other witnesses, Armando Gurrola and Luis Urenda, attributed certain state-
ments to Chauvet. On or about September 15, according to Urenda, while he was
near five named employees, Chauvet spoke to him and stated that he "knew that I
wanted the union to come in there . . . what I was doing was out-of-order, out-of-
law." According to Urenda he had not been talking to the other men prior to the
Chauvet appearance on the scene. Chauvet testified that his brother, Vice President
Jack Chauvet, had told him that Urenda was actively soliciting for the Union on
company time and property. He therefore told Urenda in the presence of the other
workers that he was soliciting and violating a longstanding company rule and that
if he persisted therein he would be disciplined Kilgore testified that Chauvet had
telephoned him and discussed the Urenda matter with him substantially along the
foregoing lines. Jack Chauvet did not testify herein nor were any of the five named
by Urenda summoned as witnesses.5
As for Gurrola, he testified that in the first week of October Chauvet called him
to one side, stated that he knew Gurrola was distributing union buttons, and said
that if he continued therein he would discharge him immediately. Chauvet also
stated that "I could not talk union in there, absolutely not 'a word, because for that
reason he could also fire me immediately." Gurrola disputed the assertion as to the
buttons, pointing out that the Union had given out only one button to each man.
According to Chauvet, he was informed by Foreman Abraham Graham, no longer
in Respondent's employ, that Gurrola was soliciting for the Union on company time
and passing out buttons. He proceeded to his department and told him it was
contrary to Respondent's longstanding antisolicitation rule and that if it continued
Gurrola would be disciplined. Here, as well, Kilgore testified that he received a
' 1liontalvo testified that he had never discussed the Union with Hernandez . Hernandez
impressed me as telling the truth as well as he recalled it with respect to these various
occasions and I have credited his testimony herein.
6 In the conclusions that follow, this Urenda incident is relied upon solely as evidence
of Respondent 's motivation herein.
PEYTON PACKING COMPANY, INC. 1289
telephone call from Chauvet and that he advised Chauvet the man should be
reprimanded.
This conflict basically reduces itself to one between the two employees and
Chauvet, because Kilgore's testimony is corroborative only of the fact that Chauvet
telephoned him and is entirely hearsay as to the incidents themselves. And it is
also obvious that the employees and Chauvet are in the same position as interested
parties. However, the conduct attributed herein to Chauvet is consistent with the
undenied conduct attributed to him by Lopez and Rocha. Various witnesses who
could support Respondent's position herein were not called to testify. Furthermore,
this still brings up Respondent's reliance herein on the rule, invalid on its face,
whose existence prior to October 1958 comes as a great suprise to a large number
of employees and, as stated, I have found that Respondent employed the same
purported rule in the case of Julio Hernandez under suspicious circumstances-
Accordingly, 1 credit the testimony of Gurrola and Urenda herein.
Conclusions
A consideration of the foregoing readily discloses that Respondent's approach to
these employees was similar to its approach to Julio Hernandez. None of the
reprimands were limited to working time activity and it never disclosed to these
employees that their own time was free for union activities; indeed, it did quite the
contrary with the October 31 broad rule. The evidence preponderates that Chauvet
was interested in stamping out any discussions of the Union or union activities on his
premises at any time and that the technique utilized to accomplish this was to im-
mediately warn any suspected union adherents against all union activity and further
to eliminate a suspected union supporter from the plant.
I believe and find that Julio Hernandez was selected for discharge because of his
known union sympathies and in order to coerce the other employees. This is par-
ticularly demonstrated by the manner in which he was summarily fired and escorted
out of the plant after being told by Chauvet that he was punishing him for talking
"union in his plant." I find that by discharging Julio Hernandez on September 15,
1958, Respondent has discriminated with respect to the hire and tenure of employees
within the meaning of Section 8(a)(3) of the Act. I further find that by the fore-
going; by the statements of Chauvet to employees Lopez, Rocha, Gurrola; and by
the statements of Montalvo to Santiago Hernandez, these constituting threats to
employees of punishment for engaging in union activities, Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act, within the meaning of Section 8(a) (1) thereof.
D. The withheld bonus
The amended complaint alleges that Respondent withheld a bonus from its pro-
duction and maintenance employees for the purpose of dissipating their union in-
terests. The record discloses that Respondent has paid a bonus to all of its employees
since 1940. The employees originally received these payments once a year, in
December before Christmas, but commencing in June 1950, a bonus has been paid
twice a year in June and December. Attacked herein is the failure of Respondent,
allegedly for antiunion reasons, to pay this-bonus in December 1958.6
The bonus checks on these occasions are handed out by Vice President Charles
Chauvet, President Seth Chauvet, or General Superintendent Thompson and, except
for Charles Chauvet's contrary claim discussed below, the uniform testimony of all
employees who testified herein on the matter is that they are told at the time the
check is handed to them that it is not a gift but solely money that they have earned by
their work, or money for which they had worked. As Armando Gurrola, an employee
of 8 years' tenure, unoontrovertedly testified, and I so find, Charles Chauvet, in giving
him the bonus check, stated, "This money that we are giving to you is money that is
not given to you by the Company, it is money that you have earned from your
work . . . . Continue doing the same kind of work , and you will continue getting
your bonuses."
The bonuses are substantial, the amounts varying, according to Charles Chauvet,
with the tenure of the employee, his ability, and possibly other nonspecified factors.
The board of directors sets the amount and all employees of the Company within
e Respondent has functioned during this entire period in varying forms of a business
entity, although using substantially the same name. It was a Delaware corporation until
1944, a partnership through 1954, and a Texas corporation since 1955. The bonuses have
been paid by all these entities in precisely the same form, as outlined herein.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the production and maintenance unit as well as outside thereof, except for newly hired
,employees, receive it. These payments have amounted to as much as $1,000 per man
-and the Christmas 1957 distribution totaled between $200,000 and $400,000.
It is readily apparent from the foregoing, as well as from Respondent's own words
,in making these payments, that this is no gratuity as Charles Chauvet maintains.
Whether or not it be termed a bonus may be a question of semantics , but what is the
controlling fact is that it had become an integral part of the wage structure which the
employees had regularly expected to receive and did receive on a semiannual basis as
additional remuneration for services rendered and on a basis commensurate with a
value which Respondent attached to those services. I so find . The fact that it was
-paid regularly over a substantial period of time was sufficient to justify the expectation
on the part of employees that they would continue to receive it, absent a change in
circumstances. N.L R.B V. Niles-Bement-Pond Company, 199 F. 2d 713 (C.A. 2).
It was therefore manifestly not a gift or gratuity but a sum paid for their services as
employees.
A consideration of the immediate sequence of events only serves to buttress the
foregoing. As noted, an election was scheduled to be held on September 25, 1958.
In connection therewith, a number of individual letters were sent to each employee in
the bargaining unit. The September 12, 1958, letter sent by Jack Chauvet stated in
,part, as follows, with reference to the union campaign:
Your Company has a reputation in this region of paying salaries and other
benefits above the normal. We have had the satisfaction of knowing our em-
ployees personally and of talking over with you problems that arise. . You
have worked hard, and we have showed our gratitude by sharing the profits with
you at the end of the year. [Emphasis supplied.]
There is nothing the Union can get you that we are not willing to grant and
without having to pay dues.
In a letter dated September 17, 1958, Charles Chauvet wrote in part as follows:
I want to repeat what I said in my previous letter-We will always do all that
we can for our employees. We have proved this by dividing the profits with you,
and in many other ways. You do NOT need to belong to any Union to obtain
all that we can do for you. To vote for the union is to vote for the payment of
dues, and you will get NOTHING in return. [Emphasis supplied.]
On September 22,.1958, Seth Chauvet wrote in part to the employees as follows:
You have: Good steady work, wages above average in this area , vacations,
insurance, and a share of the profits at the end of the year. Yes, we have shared
the profits with you. I have felt that this was a fair way to treat my friends.
[Emphasis supplied.]
In the same letter Chauvet went on to say, after setting forth the cost of union dues,
initiation fees, etc., "Why pay all this money for what you already have or will get
anyhow'? Keep your money-Vote NO . . . Please let me tell you once more-we
will always do the best that we can for you. I will see to it that you always get your
share, so don't vote for the Union . Vote NO in the election so that we can con-
tinue the friendly relations we have had for so many years." [Emphasis supplied.]
The election was held on September 25, the Union won, and it was duly certified on
October 3, 1958. The bonus was not paid to those in the bargaining unit in Decem-
ber 1958 and significantly nothing was said to the employees about it. This was the
only instance of non-payment in all these years.
Vice President Charles Chauvet testified that on November 24, 1958, at a meeting
of the board of directors consisting of the three Chauvets and others, it was decided
not to pay the December bonus, or gratuity as he termed it, to the production and
maintenance employees. This was allegedly consistent with a tentative decision made
at a prior meeting of the board on April 26, 1958, when both the June and December
bonuses were taken up.
According to Chauvet, it was decided at the November meeting to use the money
which would have been paid as a bonus to the production and maintenance employees
for the purpose of purchasing nen equipment and machinery, again consistent with
a tentative decision made in April at which time they had also decided to pay the June
bonus to everyone. However, it was decided in November to pay the bonus to execu-
tives, supervisors, foremen, office clericals, and salesmen, in essence everyone in the
plant except the production and maintenance employees within the bargaining unit.
As noted, all prior bonuses had been distributed without omission on a regular basis
to all categories of employees.
PEYTON PACKING COMPANY, INC. 1291
Conclusions
Although Respondent contends that a tentative decision was made in April 1958
to eliminate the December 1958 bonus payment to the employees in the production
and maintenance unit, the following is immediately apparent:
(1) This contention is readily refuted by a consideration of the various letters
subsequently written by Respondent's top officials in September during the period
preceding the union victory in the election of September 25. At no place in these
letters, which are only partly quoted herein, although their full text is in evidence, is
any mention made that the employees might not receive the bonus. To the contrary,
on September 12 Respondent stated, "You have worked hard and we have showed our
gratitude by sharing the profits with you at the end of the year. . . . There is noth-
ing the union can get you that we are not willing to grant and without having to
PAY DUES." Similar statements were made on September 17 and 25.
(2) There is not an iota of evidence that Respondent had ever taken such a step
as this in the past or even considered it.
(3) Although Respondent allegedly confided in the employees, and in the letters
Respondent's officials dwelled upon their happy relationship of long-standing, Re-
spondent did not at any time ever advise the employees that they would not receive
the bonus, or for that matter ever explain why it was not given. Surely, if economic
need was the case, Respondent readily, with no difficulty,at all and in the interest of
maintaining morale and good employee relations, could have and would have relayed
this information to .its employees, many of whom had enjoyed long tenure in their
jobs.
(4) There is the further situation that Respondent did pay the bonus to all other
groups in the plant. Respondent came forward with no explanation as to why any
distinction was made between the respective groups, and the only basis which sug-
gests itself herein is the readily apparent one that Respondent denied the bonus to
the one group that had selected a collective-bargaining representative contrary to its
wishes and for that reason alone.
(5) There is another curious inconsistency in the position of Respondent. It
allegedly made a tentative decision in April to withhold the bonus in December to
a portion of its employees because of capital expenditures. Why then did it proceed
to pay the June bonus to all categories in the plant? No plausible answer indicative
of a nondiscriminatory motive suggests itself.
I find therefore that the bonus under consideration had become an established
and integral part of the pay structure; that it was not a gratuity; that the employees
recognized it as a part of the pay structure which varied with their tenure and ability;
and that Respondent so regarded it. The evidence overwhelmingly impels the con-
clusion under these circumstances, that Respondent withheld the December 1958
bonus to the employees in the bargaining unit as punishment and retribution for
having selected a collective-bargaining representative in opposition to the desires
of Respondent in the matter.
A consideration of its broad ban on all union activities, the threats of reprisals to
employees for engaging in same, and the handling of the Julio Hernandez case,
serves only to buttress this view. The evidence preponderates that Respondent
clearly punished its employees to their financial detriment for exercising a right
guaranteed them by the Act to select a collective-bargaining representative of their
own choosing. I find that by so doing Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of
the Act, within the meaning of Section 8(a) (1) thereof.
E. Additional interference, restraint , and coercion
There are several remaining allegations of interference, restraint, and coercion.
It is contended that Respondent posted guards and watchmen in the plant from late
September 1958 on in order to engage in surveillance of the union activities of
employees. The record uncontrovertedly discloses, as Charles Chauvet testified,
that Respondent has always employed guards, that after the election Respondent
instructed the guards to be on the lookout to detect the stealing of meats, and that
there is a constant problem because one of the plant fences is on the international
boundary with Mexico which results in tunneling in both directions. While the
General Counsel adduced some evidence that the guards were unduly vigilant, in the
belief of employees, this does not constitute substantial evidence of surveillance and
spying for an unlawful motive. It is accordingly recommended that this allegation
,of the complaint be dismissed.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considerable testimony was developed concerning a decertification petition which
was widely passed around at the plant after the election during October and No-
vember 1958. A number of employees actively participated in soliciting signatures
for the petition and in large measure this was done during working hours with, in
some cases, statements by proponents that signing the petition would reward the
employees with their December bonus. Contrary to the contention of the General
Counsel, however, there is insufficient evidence to establish that the parties involved
were agents of Respondent, supervisors rather than leadmen, or anything more than
assistant foremen. A consideration of the duties of those involved will not support
a finding that the alleged proponents or distributors of the petition enjoyed the status
of supervisors under the Act.7
As for management, the record discloses that the Union contacted Kilgore and
protested that three named employees were distributing this petition. Kilgore noti-
fied Chauvet who testified that he called in the three named employees and threatened
them with discharge if they persisted in such conduct in violation of Respondent's
no-solicitation rule. Chauvet named three employees, Perez, Ibanez, and Camacho,
as the ones he reprimanded. The first two named admitted that such was the,
case although Camacho denied that he was so told. I deem it unnecessary to resolve
this conflict because, despite the wide distribution of the petition and the activity
of a large group of employees in a number of plant areas, this does not constitute
substantial evidence that Respondent authorized or ratified this conduct. I shall,
accordingly, recommend that this allegation of the complaint be dismissed.
F. The alleged unfair labor practice strike
The complaint further alleges that the employees of Respondent went on strike
on or about March 2, 1959, and that this was an unfair labor practice strike caused
by the discharge of Julio Hernandez on September 15, 1958, discussed above.
The General Counsel concedes that there were economic causes for the strike but
contends that the discharge of Hernandez was one of the causes.
The only testimony presented by the General Counsel in support of his claim
herein is that of Sam Twedell, International vice president of the Union. As noted,
the Union was duly certified on October 3. Twedell testified that there were 10 or
12 negotiating meetings between mid-October and March 2 and that a strike ulti-
mately was voted on March 2; a strike did commence on March 3 and it is still
continuing.
The first meeting in mid-October, according to Twedell, was preliminary in nature
and a contract proposal was presented to the Company. A second meeting was held
some 3 weeks later in November and at that time, among other things, the dis-
charge of Julio Hernandez and five others discharged soon after he was were dis-
cussed. Twedell claimed that he had several telephone conversations with Kilgore
between the first two meetings and that the problem of this group of six dischargees
was discussed during at least one calla According to Twedell, the cases of the six
dischargees were discussed in varying detail at all meetings , .the union position being
at each meeting that a settlement of their cases was a must.
A strike vote was allegedly taken in February, approximately on February 24, at
which time the union membership discussed various differences between the parties
including the problem of the six dischargees, the duration of a contract, and also the
wage rates to be paid. A meeting was held between the Union and Respondent on
February 25 ,at which Kilgore and Chauvet asked for time to contact Seth Chauvet
who was out of town. No answer was apparently forthcoming and this led up to a
March 2 meeting.
The last meeting between the parties was held on the afternoon of March 2 and
present were Twedell, Kilgore, and Chauvet. The Union presented to Respondent's
representatives the following proposal allegedly voted by the Union at a meeting
on the previous night. This reads as follows:
In accordance with our discussion this date, we are submitting the following
four proposals for your consideration:
7 Certain conduct was attributed to Foreman Montalvo, admittedly a supervisor, but
the evidence with respect thereto was not clear enough to support a finding.
9 The cases of the other five, not named herein, were administratively dismissed by the
General Counsel at an undisclosed date during this period.
PEYTON PACKING COMPANY, INC. 1293
1. Union proposes 2 year contract instead of 3 year proposed by Company.
II. Union willing to submit cases of discharged employees to arbritation [sic]
after strike settlement agreement reached.
III. Union will agree to check off with open escape clause. Any person may
may have dues discontinued from check off by giving thirty days notice to
Company and the Union.
IV. Union will agree to accept same wage rates as paid by Swartzman Pack-
ing Company of Albuquerque New Mexico . Copy of which is attached.
A copy of this proposal was given to Respondent 's representatives and the items
were discussed . Respondent took the same position on item 2 as it had previously
taken, namely , that charges were pending before the Board and this was a matter
for the agency to decide.
It appears that the Union held a meeting later that evening , on March 2 . Twedell
claimed that he wished to ascertain on this occasion whether the membership still
favored a strike. Among topics discussed was that of the six dischargees , the Union
never having retreated from its position with rsepect thereto. A strike was voted and
it commenced on the following morning on March 3. According to Twedell, the
Union and Respondent have held no meetings concerning the dispute since then. It
is the union position that the discharge of the group of six was one of the causes of
the strike and that all the causes of the strike appear in the document allegedly sub-
mitted at the March 2 meeting.
Twedell 's testimony is accepted in part but controverted in several basic respects
by the testimony of Kilgore who testified herein that he attended all meetings com-
mencing with the first on November 12. Unlike Twedell , Kilgore claimed that the
issue of the dischargees including Hernandez was not brought up by the Union until
a meeting which was held on February 12; nor was it brought up informally with
him prior to this date. Obviously this is a date much later than the date fixed by
Twedell.
Kilgore also produced the original of the document containing the four demands
set forth above .9 He testified that he received his copy, or rather the original, at a
meeting with the Union held on March 11 after the start of the strike. This copy
was also received in evidence and contains certain inked notations thereon. Accord-
ing to Kilgore, these inked notations and the signature of Sam Twedell were placed
thereon by Twedell at this March 11 meeting. Twedell did not controvert this
testimony by Kilgore. Furthermore , according to Kilgore , the contents of this
document were never read to him prior to the March 11 meeting , although he too
did recall a meeting having taken place on March 2. Kilgore agreed with Twedell
that Respondent had uniformly taken the position , at least since February , that the
issue of the six dischargees was one for the Board to decide.
It is basic that there must be substantial proof of a causal connection between
unfair labor practices and a resulting strike to support a finding that the strike was
caused in part, at least, by such unfair labor practices . Winter Garden Citrus
Products Cooperative v. N.L.R.B., 238 F. 2d 128 (C.A. 5). Needless to say, in
the present situation , there is a conflict between the testimony of a highly interested
party , viz, an official of the Union, and the testimony of Respondent 's industrial
relations counsel, also an interested party. However , as noted, the testimony of
Twedell was contradicted by that of Kilgore in a very basic aspect with respect to
the document allegedly submitted on March 2 but, according to Kilgore , actually
not submitted until after the start of the strike . Twedell was not recalled to the
stand to dispute this testimony.
To accept the position of the General Counsel herein would result in a finding that
a strike starting in March was caused in part by a discharge in September , 6 months
earlier, and a discharge which preceded the certification of the Union and the sub-
sequent bargaining for a contract . I do not believe that this record contains sub-
stantial evidence to support such a finding. To the contrary, there is a striking
resemblance between this case and that of N.L.R.B. v. Scott & Scott , 245 F. 2d 926
(C.A. 9), where the court found that the claim of unfair labor practices entering
into the calling of a strike was an afterthought . I find, in view of the foregoing,
that the strike of Respondent's employees commencing on March 2, 1959, was not
9 The carbon copy was received in evidence as part of the General Counsel's case,
allegedly reflecting a copy of the original supplied to Respondent on March 2.
1 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
caused by the discharge of Julio Hernandez but rather by other economic factors.
See Vogue Lingerie, Inc., 123 NLRB 1009.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Julio Hernandez. I shall, therefore, recommend that Re-
spondent offer him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to seniority or other rights and privileges. See
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827. I shall further recommend that Respondent make him whole for
any loss of pay suffered by reason of the discrimination against him. Said loss of
pay, based upon earnings which he normally would have earned from the date of
the discrimination to the date of the offer of reinstatement, less net earnings, shall
be computed in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc.,
344 U.S. 344.
I shall recommend that Respondent make its employees whole for the loss of the
December 1958 bonus by payment to each eligible employee who did not receive
one of a bonus computed under the same formula as that used in computing the
bonus paid to the remainder of the employees on that date.
I shall also recommend that Respondent rescind its nonsolicitation rule or any
successor rule insofar as it restricts employees from engaging in union activities
during nonworking time.
Because of Respondent's demonstration of its willingness to resort to unlawful
methods to counteract an attempt by its employees to achieve self-organization
through a labor organization of their own choosing, the inference is well warranted
that the commission of other unfair labor practices may be anticipated. It will there-
fore be recommended that Respondent be ordered to cease and desist from in any
manner interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed by the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. Peyton Packing Company, Inc., is an employer within the meaning of Sec-
tion 2(2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Julio
Hernandez, thereby discouraging membership in a labor organization, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
4. By the foregoing, by restricting its employees from engaging in union activities
during nonworking time, by depriving employees of the December 1958 bonus, and
by threatening employees with reprisals for engaging in union activities, thereby
interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The March 3, 1959, strike was not an unfair labor practice strike.
7. Respondent has not otherwise engaged in unfair labor practices as alleged in
the complaint.
[Recommendations omitted from publication.]
PEYTON PACKING COMPANY, INC. 1295;
APPENDIX A
RECORD OF REPRIMAND AND DISCIPLINARY ACTION
JULIO HERNANOEz-Maint. Dept.
August 28, 1958
Reason for Discipline
q DISHONESTY Q VIOLATION OF RULES: q UNSATISFACTORY
q INSUBORDINATION X LEAVING WORK PLACE PERFORMANCE
q INTOXICATION X MISCONDUCT ----INACCURATE
q POOR ATTENDENCE: (Sic) X LOAFING ____LOW OUTPUT
____TARDINESS ____SMOKING ____NOT ADAPTABLE:
____ABSENTEEISM X OTHER SOLICITING ____UNDEPENDABLE
_ _ _ _UNCOOPERATIVE-
q OTHER JUST CAUSE --------------------------------------------
Description of Circumstances
Approximately at 11:30 AM I sent Julio Hernandez to the Beef Killing Floor-
to repair a "Stopped Up" pipe. The Killing Floor foreman, Salvado (sic) Montalvo
had phoned me requesting an immediate repairing of the pipe. Twenty minutes,
later after I sent Julio to do the repair job, I went to check on the job and found that
it had not been done; then proceeded to look for Julio and I found him in the Hide-
Cellar, loafing and talking to Miguel Herrera about dl union and keeping him from,
his work.
ACTION TAKEN: I q WARNING
q SUSPENSION FOR____ q DISCHARGE
DAYS
REMARKS: I reprimanded Julio for this misconduct and warned him that if he
ever repeated such conduct of loafing, talking or going into other departments other-
than the ones to which he was assigned or failed to attend to an emergency job,
promptly, that he would be dismissed. I also warned him that it was strictly against-
company rules and policy to allow soliciting of any kind on Company time or.-
Company property.
(S) PABLO VALENZUELA.
APPENDIX B
RECORD OF REPRIMAND AND DISCIPLINARY ACTION
JULIO HERNANDEZ-Maint. Dept.
August 28, 1958
Reasons for Discipline
q DISHONESTY qX VIOLATION OF RULES: q UNSATISFACTORY
q INSUBORDINATION X LEAVING WORK PLACE PERFORMANCE
q INTOXICATION X MISCONDUCT ---..INACCURATE
q POOR ATTENDANCE' X LOAFING ____LOW OUTPUT
____TARDINESS
____ABSENTEEISM
____SMOKING
____OTHER
____NOT ADAPTABLE-
---- UNDEPENDABLE
____UNCOOPERATIVE
OTHER JUST CAUSE ---------------------------------------------------
Description of Circumstances
Approximately at 11:30 AM I sent Julio Hernandez to the Beef Killing Floor-
to repair a "Stopped Up" pipe. The Killing Floor foreman, Salvador Montalvo had'
phoned me requesting an immediate repairing of the pipe. Twenty minutes later
after I sent Julio to do the repair job, I went to check on the job and found that it
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been done; then proceeded to look for Julio and I found him in the Hide
Cellar, loafing and talking to the Hide Gang and keeping them from their work.
I I ____
ACTION TAKEN: I [] WARNING q DISCHARGEDAYS
REMARKS: I reprimanded Julio for this misconduct and warned him that if he
fever repeated such conduct of loafing, talking or going into other departments other
than the ones to which he was assigned or failed to attend to an emmergency (sic)
job promptly , that he would be dismissed . Further, I suspected that he was soliciting
and warned him that it was strictly against company rules and policy to allow solicit-
ing of any kind on Company time and soliciting on Company properties.
(Signed) PAUL VALENZUELA.
Bilton Insulation , Inc. and United Construction Workers, Divi-
sion of District 50, United Mine Workers of America. Case
No. 5-CA-1626. January 13, 1961
DECISION AND ORDER
On June 23, 1960, Trial Examiner Louis Plost issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
ent 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 copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
-Board has delegated its powers in this case to a three-member panel
[Chairman Leedom and Members Fanning and Kimball].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and the brief, and the entire record in the
.case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modifi-
cations.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act by refusing, on September 17, 1959,
to recognize the Charging Union as the collective-bargaining repre-
sentative of its employees in an appropriate unit. The record is clear
that the Union represented a majority of the employees on that date.
The Trial Examiner credited the testimony of Union Representative
Allen that on that day he requested recognition of the Union as collec-
tive-bargaining representative. He did not credit Bilton's testimony.
E] SUSPENSION FOR
i Respondent's request for oral argument is hereby denied because the record , the excep-
tions, and the brief adequately present the issues and the positions of the parties.
129 NLRB No. 162.