Porta-Kamp Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1970

186 N.L.R.B. 656 (N.L.R.B. 1970)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Porta-Kamp Manufacturing Company , Inc. and Car-
penters District Council of Houston and Vicinity,
AFL-CIO. Cases 23-CA-3471 and 23-RC-3371
November 19, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On May 26, 1970, Trial Examiner Melvin Pollack
issued his Decision in the above-entitled proceeding
finding that the Respondent in Case 23-CA-3471 had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in connec-
tion with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in these
cases, including the exceptions and brief, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Porta-Kamp Manufacturing Com-
pany, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
IT IS HEREBY DIRECTED that as part of the investiga-
tion to ascertain representatives for the purpose of
collective bargaining among the employees of Porta-
Kamp Manufacturing Company, Inc., Houston,
Texas, in the appropriate unit, the Regional Director
for Region 23 shall, pursuant to National Labor
Relations Board Rules and Regulations, Series 8, as
amended, within 10 days of the date of this Direction,
open and count the ballots of the 20 employees found
herein to have been discharged in violation of Section
8(a)(3) of the Act, and thereafter prepare and serve on
the parties a revised tally of ballots, including therein
the count of said challenged ballots. In the event that
the revised tally of ballots shows that the Union has
received a majority of the valid ballots cast, the
Regional Director shall issue a certification of
representative. In the event that the revised tally of
ballots shows that the Union has not received a
majority of the valid votes cast, the Regional Director
shall issue a certification of the results of the election.
Chairman Miller dissenting:
I find the evidence insufficient to establish that the
Employer's discharge of 20 employees on November
10, 1969, was discriminatorily motivated.
The General Counsel introduced no evidence that
the Respondent knew the identity of union adherents.
In fact, two of the laid-off employees had not been
involved in union activities; two others had not signed
cards. There was no union activity at the plant, and
one of the Union's chief organizers testified he was
careful not to discuss union matters during working
hours. The fact that 80 percent of those laid off had
signed cards is hardly conclusive when 50 percent of
all employees had signed cards.
Respondent gave a convincing explanation for the
November 10 layoff. In the spring of 1969, Bigalow,
Respondent's president, returned from a lengthy
illness and found the Company was losing money and
operating at low efficiency. In June of that year,
several of Respondent's officials made an examina-
tion of its products at Bergstrom Air Force Base,
found the products faulty, and thereafter sent a memo
to all employees about the serious problems existing
at the plant. Matters worsened, and Plant Supervisor
Ed Freed was terminated on August 8, 1969. Presi-
dent Bigalow and Vice President Burg thereafter
commenced running the plant themselves. All this
took place before early October, the date when union
activities started at the plant.
On November 10, Respondent terminated the 20
employees involved in the instant proceeding.'
Respondent's testimony revealed that its projected
orders required a reduction from eight to four units
per day, and from 80 to 60 employees. The record
shows that Respondent's complement had not risen
above 60 to the date of the hearing, and in fact had
dipped to 49 in January 1970. Respondent testified as
to its reasons for selecting the 20. At least seven had
been employed for a very short time-most of the
seven for but a few days or weeks. Others of the 20
had attendance or production problems. I cannot say
from this record that Respondent should have
terminated "A" and "B" rather than "C" and "D"; in
view of the large percentage of employees who had
signed cards, any group selected would in all
likelihood have included many union adherents. I
I Five other employees had been terminated on October 17. for refusing
to work overtime. Their discharges are not alleged as unlawful.
186 NLRB No. 97
PORTA-KAMP MANUFACTURING COMPANY 657
cannot find, on the evidence in this record, that the
Respondent significantly cut its production, and
permanently reduced its work force by 20 employees,
simply in the hope that the accompanying layoff
would "catch" some union adherents.
Though Respondent's few 8(a)(1) violations seem to
me marginal, I am willing to adopt the Trial
Examiner's findings in this regard. As indicated, I find
that the General Counsel has not sustained his burden
of proving that the layoff of November 10 was
discriminatorily motivated, and I would dismiss that
portion of the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: In this consolidated
proceeding under Sections 9(c) and 10(b) of the National
Labor Relations Act, as amended (herein called the Act),
the issues to be decided are whether Respondent Porta-
Kamp Manufacturing Company, Inc., interfered with,
restrained, and coerced its employees in the exercise of their
rights of self-organization ; whether Respondent discrimi-
natorily discharged 20 employees in order to discourage
support of Carpenters District Council of Houston and
Vicinity, AFL-CIO, herein called the Union; and whether
challenges to the ballots cast at a Board election held on
January 7, 1970, by 15 of the alleged discriminatees should
be overruled or sustained.'
The case was heard at Houston, Texas, on March 24 and
25, 1970. Briefs filed by the General Counsel and the
Respondent have been considered. Upon the entire record
herein and my observation of the witnesses as they testified,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation, is engaged at its plant
in Houston, Texas, in the manufacture of portable camps
and portable buildings. Its annual interstate purchases are
over $50,000. I find, as Respondent admits, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
Early in October 1969,2 the Union began a campaign to
organize the employees at Respondent's plant. Approxi-
I Case 23-CA-3471, upon a charge filed on November 12 and
amended on December 16, 1969, a complaint was issued on December 18
and amended on March 5, 1970. By order dated February 26, 1970, Cases
23-CA-3471 and 23-RC-3371 were consolidated for purposes of hearing
and decision.
2 All dates hereafter are in 1969 unless otherwise noted.
3 Lewis Harris and Peter Harris are not related. Peter Harris, one of the
alleged discriminatees in this case , dated his conversations with Supervisor
Harris in relation to the date he was hired, May 21, 1969, or the date of his
discharge , November 10, 1969. The hiring date would place the
conversation described in the text months before the organizing campaign
began . Using the termination date , the conversation would have taken
place early in October . I consider this much more likely in view of
mately 10 to 15 of Respondent's 80 production, mainte-
nance, and warehouse employees attended one or more
meetings held at a "U-totem" store near the plant or at the
Cyclone bar and grill, and about the same number of
employees attended a meeting at the Union's hall on
October 26. Between November 2 and 10, union authoriza-
tion cards were signed by 40 employees. Elias Flores
obtained signed cards from 27 employees at the U-totem
store or the plant parking lot, Genaro Valdez obtained
cards from 7 employees at the parking lot, and Frederick
Holley obtained cards from 4 employees.
Soon after the start of the union campaign, Supervisor
Lewis Harris asked forklift operator Peter Harris,3 while
driving from work in the former's car, "What did [he] think
about the Union?" Peter replied that he "didn't even think
about it." About 2 weeks later, again while driving from
work, Supervisor Harris again asked Peter Harris what he
knew about the Union. Peter Harris, who had been advised
by Frederick Holley not to talk union to any supervisor,
answered that he "didn't think of it because [he] didn't
think it would happen. Supervisor Harris said, "Yes, it
could happen." Peter Harris said, "Well, I don't see how,
because if [President] Bigelow would hear tell of it he would
lay them off. He would even close his plant down."
Supervisor Harris replied, "No, it couldn't be that way, if a
hundred percent of the men would vote for the Union, he
couldn't close it down." 4
Supervisor Harris asked employee Ernest Minor on the
job early in October if he knew anything about a union.
Minor said "no" and asked Harris "had they heard about
one." Harris remained silent and then asked Minor not to
tell anyone he had asked him about a union. About
October 28, Harris asked Minor "whether we were still
going to get a union." Minor, who had attended union
meetings, said he "didn't know." A few days later, Harris
remarked to Minor that he "ought to go tell [President]
Bigelow that Shipley was a strong union man." 5 Minor
heard Harris say the same thing to Gilbert Flores.
About November 7, Supervisor Harris instructed Freder-
ick Holley to meet him at the U-totem store. In Harris'
parked car at the store, Harris told Holley that Respondent
was "scared" of the Union but that he hoped it would
organize the plant because he "wouldn't have to work so
hard." He asked Holley if he knew anything about the
Union. Holley said he was "just as much in the dark about
it as anybody." Harris said Respondent would fire him if
they knew he had talked about the Union .6 Supervisor
Ernest Marotta also asked Holley in December 1969 what
he thought about the Union. Holley said he "didn't think
about it, and . . . didn't want to talk about it."
contemporaneous events, and Peter Harris' testimony concerning his next
conversation with Supervisor Harris which shows that he was aware of the
organizing campaign at that time and which he placed as about 3 weeks
before his discharge.
+ Peter Harris also testified that 2 weeks after he was hired , Supervisor
Harris asked him "not to talk union around the plant" because some
employees who had done so "a number of years ago were laid off about
it."
Harold Shipley was not a union supporter.
6 The Union notified Respondent on October 18 that it was organizing
its employees. President Bigelow thereupon instructed the supervisors not
to talk about the Union to the employees. The employees were not advised
of these instructions.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minor was one of 20 employees discharged on November
10. Supervisor Harris met Minor at the plant gate before
work on November 11 and gave him his check. Minor
asked why he had been laid off and Harris said he would
find out and let him know. Two nights later, at a service
station where Minor worked part time, Harris told Minor
that he was laid off "on account of the Union." Minor
asked Harris "why didn't they lay the rest of them off."
Harris replied that Respondent would lay the rest of "the
old mens off" when the new employees learned their jobs
and business slowed down.
Supervisor Harris' statement to Peter Harris not to talk
union around the plant because employees had been
discharged in the past for doing so, implied that Peter
Harris risked discharge if he engaged in union activity and
hence constituted a threat violative of Section 8(a)(1) of the
Act. As his statements to Minor after November 10 that
Minor had been discharged for his union activity and that
Respondent would fire other senior employees for their
support of the Union when "business slowed down,"
tended to restrain Minor from engaging in union activity, I
find them also violative of Section 8(a)(1) of the Act. R. J.
Reynolds Foods, Inc., 168 NLRB No. 47(TXD). Harris also
asked Minor, Peter Harris, and Holley what they knew
about the Union and how they felt about it. The three
employees pretended that they knew nothing about the
Union and had no interest in it. I find below that Minor,
Peter Harris, and 18 other employees were discharged on
November 10 to discourage support of the Union. When
Supervisor Marotta asked Holley about a month later what
he thought about the Union, Holley, who had been an
active union supporter, refused to talk about the Union. I
find in these circumstances that Harris' and Marotta's
questioning of Minor, Peter Harris, and Holley concerning
union activity and sentiment was violative of Section
8(a)(1) of the Act.7
Respondent argues that it is not liable for the conduct of
Harris and Marotta because they are minor supervisors,
who engaged employees in isolated and casual conversa-
tions about the Union, in a context free of antiunion
hostility, and contrary to Respondent's express instruc-
tions. Harris and Marotta were departmental foremen;
Harris had five conversations with Peter Harris, Minor, and
Holley concerning the Union during a period of about I
month; Respondent did not notify the employees of its
neutrality instructions and, as I find below, Respondent
discriminatorily discharged 20 employees, including Peter
Harris and Minor, on November 10. I therefore find no
merit in Respondent's contention that it may not be held
responsible for the conduct of Harris and Marotta.
B. The November 10 Discharges
Respondent discharged 20 employees after work on
Monday evening, November 10.8 Unlike previous reduc-
tions in force at the plant, the supervisors and employees
had no advance notice, the discharges were accomplished
r Supervisor Harris also remarked to Minor and Gilberto Flores on
November 7 that they ought to tell President Bigelow that Shipley was a
strong union supporter. I find, contrary to an allegation in the complaint,
that Harris' statement was not sufficient to create an impression that
Respondent was engaging in surveillance of union activity.
X The discharged employees received their final paychecks that evening
or before work the next morning.
on a Monday rather than a Friday, which is payday at the
plant , and the layoff included many "seasoned hands." For
a number of weeks before November 10, all production
employees had worked 10 to 12 hours a day, 6 days a week.
After November 10, the remaining employees continued to
put in considerable overtime work .9 Sixteen of the 20
discharged employees had signed union authorization cards
and 10 of the 16 had attended union meetings . Of the five
employees in the mill department supervised by Foreman
Harris , four who had signed union cards-Gilberto Flores,
Franco , Minor , and Reyna-were discharged . Shipley, who
had not engaged in union activity , was retained . Eleven
dischargees were among Respondent 's highest paid em-
ployees. Andres Flores , Elias "Joe" Flores , Tony Franco,
Reynaldo Liandro, Ernest Salas , and Genaro Valdez were
"department heads"; Johnny Delgado and Earnest Minor
were leadermen ; and Gilberto Flores , Inez Longoria, and
Rafael Reyna were "class A" employees . 10 Except for
Longoria, these employees had signed union cards , and all
but Reyna had attended union meetings. Respondent hired
39 new employees between November 13, 1969 , and March
12, 1970, including three employees hired in the week
following the layoff.
Respondent's explanation for the discharges may be
summarized as follows : President Floyd Bigelow, after a
long hospitalization , returned to the plant on a full-time
basis in April 1969. He found that efficiency was down and
that customers were sending in serious complaints. On a
trip in June 1969 to an Air Force Base in Austin , Texas,
Respondent 's representatives found serious deficiencies in
buildings the customer had complained about . On July 28,
President Bigelow issued a memorandum to all employees
on "Company Rules & Standard Operating Procedures."
The memorandum closed as follows:
7. Quality of our Product and Services . I have received
many complaints from our customers during the past
year about the poor quality of the workmanship of both
our finished buildings and our export packing. We can
not stay in business with our customers unhappy about
our work . Carelessness and sloppy workmanship by any
employee of Porta- Kamp , either salaried or hourly, will
not be tolerated.
I must ask all employees to improve the quality of the
work they perform , and especially the appearance of
our buildings. Major points to improve are:
Interior trim work.
Windows and doors in straight and operable.
Equipment properly installed and tied down.
- Electrical.
- Exterior wall finish-drive screws-scratches.
Export packing-Needs much better blocking when
packed in buildings . Boxes for boxed equipment are
leaking and are not properly braced.
- Completeness of all parts and equipment for each
job-Too many shortages are being reported by our
customers.
9 Vice President Frank Burg testified that after the layoff the employees
worked 10 hours daily from Monday to Thursday, 9 hours on Friday, and,
if necessary, on Saturdays . At the time of the hearing, the plant was
scheduled to work 2 of the next 4 Saturdays.
10 Respondent classifies its rank-and-file employees as departmental
heads, leadermen , class A, class B, class C, and trainees . The department
heads and leaderman lead small crews in their work.
PORTA-KAMP MANUFACTURING COMPANY 659
- Welding-There is too much splatter left. Also, there
are some poor welds, especially on skid ends and
stacking racks.
- Flooring-Ridges are showing up after linoleum is
installed. This is primarily because self- tapping screws
used to put down the plywood floors are being run in too
deep and are not being put close enough together. They
should be approximately 12" on centers and the heads
flush with the top of the plywood.
Your cooperation in the above will certainly make
Porta-Kamp a better place to work, and, at the same
time, help keep our customers satisfied. Without
satisfied customers we are all in trouble.
On August 8, President Bigelow discharged the plant
superintendent and decided that he and Vice President
Frank Burg would "run the plant directly for a period of
time." They observed the employees at work and concluded
that they had "to have some better grade personnel for the
organization." Respondent had a "tremendous workload"
ahead and was unable "to hire any kind of experienced
help." It determined to "ride through with the people [it]
had" and to bring "everyone that [it] could possibly bring
out of the office to act as . . . working supervisory
capacity." It decided, however, to terminate 14 employees
as soon as possible, including Andres Flores, Reynaldo
Liandro, Johnny Delgado, Ernest Salas, Earnest Minor,
and Tony Franco.11 Sales Manager Russell Brient returned
from a sales trip on October 24 and advised Bigelow the
next day that sales for the next 3 to 6 months would be "in
the range of 40 to 50 percent below our normal sales." Early
in November, Respondent decided to reduce production
from as much as eight units a day 12 to four units a day and
to cut the work force from 80 to 60 people in light of orders
on hand and decreased sales activity. On the morning of
November 10, Bigelow gave Burg the names of the 7
employees still in Respondent's employ whose termination
had been decided upon in August and told Burg to select 13
more employees for discharge. Burg made the decision
himself. That afternoon, he advised the supervisors of the
discharges. The supervisors gave the discharged employees
their final paychecks that evening or before work the next
morning.
Respondent's business is somewhat seasonal and layoffs
are not infrequent. Respondent's explanation for the
November 10 layoff, however, does not show why it was
11 Five of these 14 employees, who worked in the wall department were
allegedly discharged on October 17 because Bigelow had traced "sloppy
work" to them that morning and they refused later that day to work
overtime.
Respondent also claims that Delgado and Franco were excessively tardy
and Franco was sent home one morning for coming to work intoxicated. It
does not appear that the men were reprimanded for their tardiness , or that
Respondent found it necessary to send Franco home again. In any event,
Respondent 's basic claim is that it selected 14 employees, including
Delgado and Franco, for future discharge in August because the quality of
their work was poor.
12 Production usually did not exceed six or seven units a day.
13 Respondent labels "incredible " this testimony of Minor . Minor's
testimony , however, is quite detailed, and Respondent chose not to call
Harris to testify.
14 Respondent asserts that the number of man-hours per unit produced
was substantially reduced after the November 10 discharges . A supporting
tabulation put into evidence by Respondent takes no account of the fact
that the average man-hours required for the different units manufactured
effected without notice, on a Monday, and at a time when
the remaining work force could not meet production
requirements without working much overtime at consider-
able extra expense to Respondent. Although President
Bigelow had been advised on October 25 that sales
prospects were poor, the plant hired 12 new employees
between October 27 and November 3, an action on its face
inconsistent with a contemplated reduction in force but
quite consistent with Bigelow's testimony that he could
forecast production "with some certainty" for 2 or 3
months ahead. Respondent on November 10 had orders for
95 buildings and expected to receive additional orders. In
these circumstances, I find unconvincing Respondent's
explanation that it effected the November 10 discharges
because a drop in sales and orders necessitated a drop in
production from eight to four units a day and a consequent
reduction in force.
I also find unconvincing Respondent's explanation that it
included seven senior employees in the layoff pursuant to a
decision made in August to discharge these employees as
soon as possible because they were not performing their
work properly. President Bigelow testified that customer
complaints were traced to these employees and that he
talked to them about improving their work. The record
shows, however, that customer complaints have been
regularly received and recorded during the 15 years
Respondent has been in business ; no customer canceled an
order before the November 10 layoff; Respondent issued
no further memoranda to its employees on the quality of
their work after the July 28 memorandum, which called on
all employees to improve the quality of their work; and no
employee was formally reprimanded for the poor quality of
his work. In fact, Minor received a pay increase about 2
weeks before his discharge. Supervisor Lewis Harris told
Minor he did not know why he had been discharged and
later told him that he and other senior employees were
discharged for their union activity. 13 Respondent makes no
claim that any of the seven employees was ever warned that
he risked discharge if his work did not improve, and called
no area supervisor to testify concerning the work of the
seven employees. In these circumstances, I reject the
testimony of Bigelow and Burg that Bigelow decided in
August to discharge Delgado, Andres Flores, Joe Flores,
Franco, Liandro, Minor, and Salas as soon as possible to
improve efficiency of operations. 14
by Respondent varies from 80 to 300 man -hours. As Respondent did not
show the type of buildings produced before and after the layoffs, the
tabulation is of little significance . In any event, Respondent's actual
production in the 5 weeks before the layoff with a work force of 80 men
was 195 units, which compares favorably with Respondent's production of
114 units in the 5 weeks after the layoff with a work force of 60 men.
Respondent also claims that the quality of work improved after November
10, as shown by the receipt of fewer customer complaints. Data sheets on
complaints put into evidence by Respondent show five complaints received
in the 6 months before November 10, the last one being dated September
19, 1969 . Sales Manager Brient testified that Respondent received between
2 and 6 complaints in the 41 /2 months between November 10 and the
hearing. Respondent introduced no supporting documents. Assuming
however that Brient 's testimony is accurate and that the number of
complaints received is a reliable index of quality , Respondent has shown
no reduction in complaints since November 10 warranting a finding that
the quality of its products has significantly improved since the November
10 discharges . Indeed , so far as the record shows, Respondent received no
written complaint on orders completed between September 19 and
November 10.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The seven senior employees discharged on November 10
had all signed union cards. Of the other 13 employees
discharged at the same time, 9 employees-Aleman,
Alvarez, Gilberto Flores, Martinez, Montoya, Reyna,
Valdez, Valencia, and Zamora 15 -had signed union cards;
Peter Harris attended union meetings at the U-totem store
and was questioned about the Union by Supervisor Lewis
Harris before his discharge. Inez Longoria was present at
the October 26 meeting at the union hall. Only two
discharged employees-Amy and Clemens-were not
involved in union activity. Valdez, who had received seven
signed cards from employees at the plant parking lot, was a
leaderman in the plant steel shop. Valdez was given a pay
raise 2 Or 3 weeks before his discharge and was told at that
time by his supervisor, Joe Faherty, that he was getting the
raise for "a well-done lob." When Faherty gave Valdez his
final paychecks on November 10, he said Valdez was doing
a good job and that he had had nothing to do with Valdez'
layoff. Valdez asked Faherty why he had been discharged.
Faherty walked to the plant office and returned to tell
Valdez that he had been laid off for his "attitude." Vice
President Burg testified that he selected Valdez for
discharge because he had failed to correct plumbing work
after it was called to his attention; because he had refused
to change his way of installing insulation on a "port-
apartment operation" after being corrected on it by an
inspector; and because Supervisor Faherty advised Burg 2
weeks before November 10 that "Valdez had lost control of
the operation." Valdez, the highest rated rank-and-file
employee in the plant, received a wage increase shortly
before his discharge. His testimony that he had been
complimented on his work by Supervisor Faherty and that
Faherty did not know why he was discharged is uncontrad-
icted. I reject Burg's testimony that he selected Valdez for
discharge because he was not properly discharging his job
duties.
Peter Harris was hired on May 21, 1969, and received two
pay raises before his discharge on November 10. Burg
allegedly selected him for discharge because, in checking
out foremen complaints "that they could not get their
materials into their departments," he observed that Harris
"did more talking than he did work" and failed to keep the
forklift in operating condition. Harris testified that no one
ever told him that he was "doing a bad job." I consider
Burg's unsupported testimony concerning Harris' alleged
shortcomings untrustworthy and find that Harris was
regarded as a satisfactory employee before his discharge. I
further find, as Respondent hired another forklift operator
a few days after discharging Harris, that his services were
needed at the time of his discharge.
Under all the circumstances-including Supervisor Lewis
Harris' interrogation of employees concerning union
activities; the elimination of all union supporters in his
department on November 10; his statement to Minor that
he and other senior employees had been discharged for
union activity; the disproportionate selection of union
supporters for discharge; Respondent's unconvincing
explanations for the discharges of Delgado, Andres Flores,
Joe Flores, Franco, Liandro, Minor, Salas, Valdez, and
Peter Harris; the timing of the discharges at a critical point
in the Union's organizing campaign; the effectuation of the
discharges on a Monday, without notice to supervisors, and
at a time when the remaining work force could meet
production requirements only by working overtime at
considerable extra expense to Respondent-I find that
Respondent knew or suspected the identity of many union
supporters and effected the discharges on November 10 to
get rid of such employees and to discourage the remaining
employees from supporting the Union. Cf. Sun Hardware
Company, Inc., 173 NLRB No. 143, enfd. 422 F.2d 1296
(C.A. 9). I conclude that the 20 employees named in the
complaint, as amended at the hearing, were discriminatori-
ly discharged, in violation of Section 8(a)(3) and (1) of the
Act.
IV THE CHALLENGED BALLOTS
I find that the following 15 employees, whose ballots were
challenged at the Board election on January 7, 1970, in
Case 23-RC-3371, were eligible to vote as discriminatorily
discharged employees:
Antonio C. Aleman Raynaldo Liandro
Juan Alvarez Alejandro Martinez
Johnny Delgado Earnest Minor
Andres Flores Rafael Reyna
Elias G. Flores Ernest Salas
Gilbert Flores Genaro Valdez
Tony V. Franco Fernando Valencia
Peter Harris
As no evidence was introduced to show that the following
employees were eligible to vote at the election, I find that
the challenges to their ballots should be sustained:
Robert Almaguer
Donato Garza
Ladislado Hernandez
Ovidid H. Hinojosa
Josias G. Moreno
Pablo H. Santos
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the
Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By the acts and conduct herein found violative of the
Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain action designed to effectuate the
policies of the Act.
As it has been found that Respondent discriminatorily
discharged 20 employees on November 10, 1969, I shall
recommend that Respondent offer them immediate and full
reinstatement to their former or substantially equivalent
15 Zamora , whose full name is Albert Gomez Zamora, signed a union card as "Alberto Gomez "
PORTA-KAMP MANUFACTURING COMPANY
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
suffered by reason of the discrimination against them. The
loss of pay under the order recommended shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 N LRB 289, with interest added thereto in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716
As the unfair labor practices of Respondent found herein
go to the heart of the Act, it will be recommended that
Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and
conclusions of law, and pursuant to Section 10(c) of the
Act, it is recommended that Respondent, its officers,
agents , successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership in Carpenters District
Council of Houston and Vicinity, AFL-CIO, or any other
labor organization of its employees, by laying off or
discharging its employees or discriminating against them in
any other manner in respect to their hire or tenure of
employment, or condition of employment
(b) Threatening employees with discharge for engaging in
union activity, coercively interrogating employees concern-
ing their union activity or sentiment; or in any other
manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer the following employees immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, and make them
whole for any loss of pay they may have suffered because of
the discrimination against them, in the manner set forth in
the section entitled "The Remedy".
Antonio C. Aleman
Necie Amy
Juan Alvarez
Marshall Clemens
Johnny Delgado
Andres Flores
Elias G. Flores
Gilbert Flores
Tony V. Franco
Peter Harris
Raynaldo Liandro
Inez Longoria
Alejandro Martinez
Earnest Minor
Anselmo Montoya
Rafael Reyna
Ernest Salas
Genaro Valdez
Fernando Valencia
Alberto Gomez Zamora
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary or
661
useful in computing the amount of backpay due, as herein
provided.
(d) Post at its Houston, Texas, plant, copies of the attached
notice marked "Appendix " 16 Copies of said notice, on
forms provided by the Regional Director for Region 23,
shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.17
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
IT IS FURTHER RECOMMENDED that the Board in Case
23-RC-3371 overrule the challenges to the ballots of the 15
employees found herein to have been eligible to vote at the
January 7, 1970, election, and that these ballots be opened
and counted
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings conclusions , recommendations , and Recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order , and all
objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
it In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 23. in writing within 10 days from the receipt of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage you from membership in
Carpenters District Council Of Houston and Vicinity,
AFL-CIO, or any other labor organization, by
discharging, laying off, or discriminating against you in
any other manner with respect to hire or tenure of
employment or any term or condition of employment.
WE WILL offer any of the following employees who
have not been reinstated immediate and full reinstate-
ment to their former jobs, or if those jobs no longer
exist, to substantially equivalent jobs, and we will pay
all the following employees any wages due them as a
result of our discrimination against them:
Antonio C. Aleman
Necie Amy
Juan Alvarez
Marshall Clemens
Johnny Delgado
Andres Flores
662 DECISIONS OF
Elias G . Flores
Gilbert Flores
Tony V. Franco
Peter Harris
Raynaldo Liandro
Inez Longoria
Alejandro Martinez
Earnest Minor
Anselmo Montoya
Rafael Reyna
Ernest Salas
Genaro Valdez
Fernando Valencia
Alberto Gomez Zamora
NATIONAL
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
WE WILL NOT threaten you with discharge for
engaging in union activity , or coercively question you
LABOR RELATIONS BOARD
concerning union activity or sentiment, or in any other
way interfere with your right:
To organize yourselves
To form, join , or help unions
To bargain , for your wages , hours, and working
conditions as a group through representatives of
your own choosing
To refuse to do any or all of these things.
PORTO-KAMP
MANUFACTURING COMPANY
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 6617 Federal Office Building, 515 Rusk Avenue,
Houston , Texas 77002, Telephone 713-226-4296.