Ramona's Mexican Food Products, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1969

175 N.L.R.B. 171 (N.L.R.B. 1969)

RAMONA 'S MEXICAN FOOD PRODUCTS , INC. 171
Ramona 's Mexican Food Products , Inc. and Meat &
Provision Drivers, Local 626, and Ice , Frozen Food
Drivers & Handlers & Cold Storage
Warehousemen , Local 942, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America. Case
31-CA-1004
March 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 3, 1968, Trial Examiner James T.
.Barker issued his Decision 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 attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts only
the findings, conclusions, and recommendations of
the Trial Examiner which are consistent with the
findings made hereinafter.
The Trial Examiner found that the Respondent
discharged two employees in violation of Section
8(a)(3) of the Act, but did not independently violate
Section 8(a)(1) by unlawfully modifying work
procedures and threatening employees, as alleged in
the complaint. The Trial Examiner recommended
the customary remedy of reinstatement and backpay
for 'one of the employees found to have been
unlawfully discharged, but recommended that the
other employee be denied reinstatement on the
ground of her gross misconduct. We need not reach
the question raised by the General Counsel with
regard to the propriety of this latter
recommendation, for we conclude that the General
Counsel has not proved by a preponderance of the
evidence that either employee was unlawfully
discharged.'
Respondent is a manufacturing concern engaged
in the production of Mexican food products and
employing about 185 persons. On February 16,
1968, the Union, the Charging Party here, won a
representation election among Respondent's
employees conducted under Board auspices.'
The discharge of Maria Pilar Vidaurrazaga
(hereinafter Pilar) was effected on March 4, 1968,
some 2 weeks after the representation election. Pilar
had been an active proponent of the Union during
the preelection period. While the facts of the matter
need not be decided here, the Respondent evidently
regarded Pilar as a partisan who had exceeded the
lawful boundaries of partisanship, as evidenced by
the fact that, subsequent to the election, Respondent
filed objections alleging that Pilar had, by profanity
and threats of physical abuse, intimidated fellow
employees into voting for the Union. Whether or
not Pilar had engaged in such improper conduct
prior to the election, the evidence shows that plant
foreman Eloy Brown was aware of other conduct of
Pilar over the preceding 2 1/2 years of her
employment which indicated that Pilar was a
tempestuous person given to violence. On three
occasions during that period, Brown had been
informed of incidents in which Pilar had exchanged
harsh words, and twice had physical altercations,
with male employees. The Trial Examiner found
credible Brown's testimony that she had been told of
these episodes by other employees at various times
prior to the discharge of Pilar.
The Trial Examiner also found on the basis of
credited testimony that on March 4, Pilar had
uttered (and affirmed) to employee Granados that
she intended to "beat the hell" out of Respondent's
owner, Ramona Banuelos; that Granados soon
thereafter communicated Pilar's words to foreman
Brown, who quickly relayed them to Banuelos with
the declaration that she, Brown, was going to "let
Pilar go"; that, when Banuelos indicated that the
threat did not frighten her, Brown, who was aware
of the aforementioned reports on Pilar's prior
misconduct, insisted on the discharge, giving as her
reason the belief that Pilar was capable of carrying
out the threat; that Brown then called Respondent's
attorney, who, having filed the election objections to
Pilar's conduct, agreed with Brown's assessment
that they should "get rid of Pilar before she harms
Mrs. Banuelos"; and that the attorney reiterated
this instruction to Mrs. Banuelos in a separate
telephone conversation.
In spite of these findings, the Trial Examiner
concluded that the reported threat was not the real
basis for the discharge, but simply an opportune
pretext for terminating Pilar because of her earlier
union activity. In rejecting Respondent's defense, the
Trial Examiner relied in large measure upon
Respondent's failure to confront Pilar prior to the
For the reasons set forth by the Trial Examiner, Member Jenkins would
affirm his finding of a violation of Sec . 8(ax3) in the discharge of Barrios.
'Case 31-RC-649.
175 NLRB No. 27
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. The Trial Examiner believed that it would
have been only reasonable to arrange such a
confrontation, for the dual purposes of ascertaining
whether the reported threat had in fact been made
and of taking "prudent protective action" to see
that the threat was "diffused and reasonable
protection constructed against future harm to Mrs.
Banuelos at the hands of Pilar."
We see no particular reason why Brown should
not have trusted Granados' report of the threat,
especially in view of Brown's own knowledge of
Pilar's propensity for violence. Moreover, there is
no evidence in the record to support the conclusion
that it was customary or usual for the Respondent
to confront discharged employees as to the reason
for their discharge, or that the method of
discharging Pilar differed from Respondent's
customary procedures. Furthermore, it does not
seem that a confrontation on the matter would have
promised any constructive result in the way of
protecting Mrs. Banuelos and, in fact, such an
accusation might well have put employee Granados
in danger of retaliation by Pilar for the part that he
played in the matter. In view of the findings made
by the Trial Examiner which are favorable to the
Respondent, we cannot agree with his speculation
that Respondent's method of handling the discharge
of Pilar was so inconsistent with reasonable
behavior as to give rise to an inference of ulterior
motive. We find this conclusion further supported
on the Trial Examiner's refusal to require the
Respondent to offer reinstatement to Pilar because
of the "grave" nature of the threat involved.
While we agree with the Trial Examiner's
assertion that weight must be given to Pilar's
prominence in union affairs and to Respondent's
aversion to her organizational conduct, we cannot
afford decisive weight to these factors in view of the
other findings made by the Trial Examiner which
nominally justify the discharge. And, in this
connection, we note the fact that there was no
evidence, in the form of other unfair labor practices,
indicating a penchant on Respondent's part to act
unlawfully toward employees in relation to the
union ; the fact that the discharge occurred after, not
prior to, the election; and the fact that Mrs.
Banuelos, who admitted knowledge of Pilar's alleged
preelection conduct, was at first prepared to dismiss
lightly the report of the threat, while Brown, whom
the Trial Examiner otherwise credited, stated that
she knew nothing of Pilar's efforts on behalf of the
Union and decided to discharge Pilar only because
of her more intimate knowledge of Pilar's
temperament which, to her mind, lent substance to
the threat.
In the circumstances described above, we find that
the General Counsel has failed to establish by a
preponderance of evidence that the discharge of
Pilar was in reprisal for Pilar 's union activity or was
inspired by a desire to discourage union membership
or adherence, and we shall dismiss the complaint as
to Pilar.
Josefa Barrios was discharged by the Respondent
on March 12, 1968. There is no indication that
Barrios played any significant role in the inception
or the success of the Union, but the Trial Examiner
found that the discharge was related to the Union's
election victory.
The circumstances of the discharge were these: On
March 12, a group of agents of the United States
Immigration and Naturalization Service arrived at
the factory to search out employees who had entered
the country illegally. A disturbing scene ensued,
which included the handcuffing of employees and
the attempt by one employee to leap out of a
window. Hoping to maintain order, Mrs. Banuelos
came into the production area, approached a table
at which employees were working, and told the
employees to continue their work. Then, watching
the actions of the immigration agents, she remarked,
to no one in particular, "Why don't you call the
union now to help you?" This remark was evidently
related to a belief held by Respondent that, prior to
the election, the Union had been promising illegal
aliens that it would protect them from deportation if
they voted for the Union. In response to this remark
about calling the Union, Josefa Barrios said,
"Madam, we have no fault." What occurred after
this rejoinder was made is in dispute. Barnos gave
positive testimony that Mrs. Banuelos then came
over to her and told her to punch her card out and
go home "so I would not be around there as a
meddler." Two other employees working nearby
gave slightly different versions. Employee Leon said
that after Mrs. Barrios first declared "It is not our
fault," Mrs. Banuelos stated, "Well, it is not your
fault, but it is possible that you do not agree with
what I say," whereupon Mrs. Barrios repeated her
statement about not being at fault and was then told
to clock out. According to employee Guevara,
however, Mrs. Barrios stated only once that "we are
not at fault," whereupon Mrs. Banuelos said that if
Barrios did not agree with her, she should punch her
card and leave. It should be noted that while
Guevara's version is more in accord with Mrs.
Barrios' than is Leon's, neither Guevara nor Leon
testified that Mrs. Banuelos told Mrs. Barrios to
leave so that she would not be around there "as a
meddler," although Mrs. Barrios twice testified to
such a remark. The Trial Examiner apparently
chose to rely upon employee Leon's account of the
incident, without explaining why the clear and
unequivocal testimony of Mrs. Barrios, a principal
actor, should not be fully accepted.'
We believe that, having chosen to credit the
testimony of witnesses generally adverse to the
Respondent, the Trial Examiner cannot properly,
without sufficient reason, disregard the complete
'Although the Trial Examiner states in in 17 of his decision that he is
basing his findings "principally upon the testimony of Leon , Guevara and
Barnos", his recitation of the facts manifestly comports more with Leon's
testimony than with that of the other two witnesses
RAMONA'S MEXICAN FOOD PRODUCTS, INC. 173
testimony of the employee nearest to the incident
who now complains of being unlawfully treated. We
further find that Mrs. Barrios' description of the
encounter raises a doubt as to the motive behind her
discharge sufficient to require dismissal of the
complaint.
The Trial Examiner reasoned that Mrs Barrios'
reply, "Madam, we have no fault," to Mrs.
Banuelos' remark about calling on the Union for
assistance, "revealed her fidelity to the Union," and
that this revealed fidelity must have been the moving
cause for the termination The Trial Examiner's
conclusion that the statement "Madam, we have no
fault" was a demonstration of Barrios' loyalty to the
Union may be subject to question; the meaning of
this response is not entirely clear, and the statement
seems to be a nonsequitur, since Mrs. Banuelos was
obviously not accusing the Union of being
responsible for the presence of the immigration
authorities. But even if we assume that Mrs.
Barrios' remark sounded like a defense of the
Union, we must further determine whether the
evidence establishes that she was then peremptorily
fired because she suddenly became a symbol of
unionism in the plant
It is not an easy matter to divine the intention of
the employer in such a fleeting, emotion-charged
moment. Missing from this situation are the usual
elements of incipient union organization, other
unlawful antiunion behavior, the prominence of the
discharged employee as a union activist, and the
calculation and advance notice which often precede
a discharge The nature of the case requires that we
primarily rely, rather, on the scant evidence relating
to the moment of discharge. Considering that
evidence, it seems to us that it may be as fairly
inferred that Mrs. Barrios was discharged for
irritating her employer as for any union-connected
considerations According to Barrios' own
testimony, Mrs. Banuelos told her to leave so that
she "would not be around there as a meddler."
Although the verbal exchange may have begun with
a statement about the Union, Mrs. Banuelos'
immediate and spontaneous assignment of a reason
for the discharge - meddling rather than unionism
- seems to indicate that she was reacting angrily to
an employee thought to be speaking out of turn
rather than to an employee defending the Union.
The Trial Examiner found that while the raid was
being conducted, the plant was in a "disquieting"
and "stressful" state. There is no reason to believe
that the strain of this extraordinary situation would
not have caused an employer to react abruptly to a
presumed impertinence by an employee.
We note also, for what it may imply about the
employer's attitude toward the employees, that the
evidence indicates that the plant was normally run
under stringent regulation: employees were not
permitted to converse while at their worktables, and
every 45 minutes their production was measured by
a checker. While discharge may be thought to be a
harsh penalty in these circumstances, it is not up to
us to pass judgment upon that question unless the
penalty is so palpably out of order that it may have
evidentiary value as to the reason for its imposition.
The facts of the present case will not permit such an
approach.
In this case, with this employer, on the facts
described, we do not believe that the preponderance
of the evidence demonstrates that Mrs. Barrios was
discharged for a reason proscribed by Section
8(a)(3).
In accordance with the above findings and
conclusions, and since we agree with the Trial
Examiner that the Respondent did not violate
Section 8(a)(l) by certain other conduct alleged in
the complaint, we shall dismiss the entire complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner This matter was
heard in Los Angeles, California, on August 13 and 14,
1968 The complaint was issued on June 21, 1968,
pursuant to an original charge filed on March 3, 1968,
and an amended charge filed on May 2, 1968, by Meat &
Provision Drivers, Local 626, and Ice, Frozen Food
Drivers & Handlers & Cold Storage Warehousemen,
Local 942, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America. The
complaint alleges violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, hereinafter called the
Act. The General Counsel timely filed a brief with me and
the Respondent filed a letter memorandum
Upon consideration of the brief of the General Counsel
and memorandum of the Respondent, and upon the record
in this case and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with its
principal office and place of business located at Gardena,
California, where it has been at all times material herein
engaged in the business of processing and distributing food
products.
In the course and conduct of its business during the
calendar year 1967 Respondent purchased for use in
business operations goods and supplies valued in excess of
$50,000 from suppliers outside the State of California.
Upon these admitted facts I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Il. THE LABOR ORGANIZATION INVOLVED
Meat & Provision Drivers, Local 626, and Ice, Frozen
Food Drivers & Handlers & Cold Storage
Warehousemen, Local 942, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
Amenca, hereinafter called the Union, is stipulated to be
a labor organization within the meaning of Section 2(5) of
the Act, and I so find.
III THE UNFAIR LABOR PRACTICES
A. The Issues
In substance, the complaint alleges that in violation of
Section 8(a)(l) of the Act the Respondent threatened to
discharge and cause the deportation of its Mexican
employees if the Union was successful in the February 16,
1968, election' and, subsequent to the election, threatened
employees with more work because the Union had won
the election. Similarly, the complaint alleges violations of
Section 8(a)(3) flowing from the discharge of employees
Josefa Barrios and Maria Pilar Vidaurrazaga. A
determination of the latter issue gives rise to a question
concerning the reinstatement rights of these employees.
B. Pertinent Facts
1. Prefatory Facts
a. Respondent's operations
Ramona Banuelos is president of Respondent and
together with her husband founded the Company. In three
separate departments are produced the flour tortillas, corn
tortillas, burritos, tamales, enchiladas, chile rellenos and
similar products produced by Respondent and sold
throughout southern California In the manufacture of
these products approximately 185 employees were
employed at the time of the hearing herein. A large
number of the employees are of Mexican extraction and
many of them are Mexican nationals. Ramona Banuelos
was born in the United States but he is of Mexican
decent.
At times material herein Samuel Magana was general
manager of Respondent's operations and Eloy Brown was
foreman with supervisory authority over the entire plant.
Venancio Olivas was at pertinent times foreman in the
flour department wherein was employed Maria Pilar
Vidaurrazaga, an alleged discriminatee.
In the burnto department in which Josefa Barrios was
employed at the time of her discharge, were also
employed approximately 28 other female employees who
work at a long table making burritos. A burrito is made
by placing on the table a flour tortilla, approximately 10
inches in diameter, hand filling the tortilla with precooked
foodstuff, folding the tortilla around the filling and rolling
the resultant product which constitutes the finished
burnto.
Prior to March 1, it was practice in the burrito
department for women working in the department to leave
their work station at the table and proceed to the flour
tortilla department some 30 feet away and there obtained
and earned back to the burrito department a tray
'Unless otherwise specifically noted , all dates herein refer to the calendar
year 1968
containing 12 dozen tortillas. Under the practice prior to
March 1 the women would then return immediately to the
adjacent flour tortilla department and obtain another t2
dozen tortillas. This procedure was duplicated every 45
minutes Similarly, after the original supply of filling
placed on the table in the morning was exhausted, the
women were required to leave their work station and
obtain a new supply of filling
The finished burrito is ordered in advance by
Respondent's customers and is considered fresh food
product subject to spoilage if not properly refrigerated.
Additionally, the materials which comprise the burritos
are precooked I day in advance and placed in a freezer.
When taken from the freezer and placed on the burrito
worktable for use the filling must be returned to
refrigeration in from I to 2 hours or be subject to
spoilage.'
b. The representation election
The parties stipulated that a representation election was
conducted among Respondent's employees on February 16
in Case 31-RC-646. The evidence further reveals that a
majority of the employees voted for representation by the
Union and that the Respondent timely filed objections to
conduct affecting the results of the election and sought
thereby to set the election aside. However, the Union was
certified on May 2
Inter alia the objections were directed to activities of
Maria Pilar Vidaurrazaga' who allegedly by her use of
profane language, threats of physical abuse and entire
course of conduct during the 24-hour period prior to the
election intimidated and coerced employees of Respondent
not favorable to the Union. In pertinent part the
objections filed by Respondent read as follows:
The Union's recognition of the effectiveness of her
[Maria Pilar' s] intimidating behavior is best illustrated
by the fact that on the date of the election on Friday,
February 16, 1968, the union at the last minute, insisted
on two observers to the company' s one, one of whom
would have been Pilar. The company objected
successfully to the Board agents , with the result, she
was not permitted to be an observer, however, by this
time, her activities of intimidating, coercing and
threatening employees of Ramona's Mexican Food
Product, Inc., had had their full effect as reflected by
the results of the election.
C. The Alleged Interference , Restraint , and Coercion
I Modification of work procedures
On or about March 1, Samuel Magana and Eloy
Brown called the employees in the burrito department in
pairs to an upstairs office in the plant and informed them
of modifications in the production procedures in the
burrito department.' Magana testified that for a period of
approximately 2 weeks preceding March 1, it had become
apparent to supervision, including Brown and himself, that
there had developed a lag in the production of the
employees in the burrito department. Brown and Magana
consulted together concerning this and decided to modify
'The foregoing is predicated upon a composite of the credited testimony
of Ramona Banuelos, Samuel Magana, and Eloy Brown.
'For convenience of identity Vidaurrazaga is referred to hereinafter as
Maria Pilar
'Time did not permit all employees to be called to meetings but most of
them were.
RAMONA'S MEXICAN FOOD PRODUCTS, INC. 175
existing procedures by employing a male employee to
keep the burrito production tables supplied with the filling
and tortillas which the production workers use in making
the burritos. This modification rendered it unnecessary for
the women to leave the production table for the purpose
of obtaining the filling and the tortillas.
In speaking with the employees Brown, who appears to
have been the principal spokesman, and Magana informed
the employees of the necessity of increasing production of
burritos. The employees were informed that production
had not been as high as at a previous time and they were
told of the change in the procedure of making available
the filling and tortillas at the worktable. The employees
were told that under the new procedures they were
expected to produce as many single variety burritos in 30
minutes as they had been producing in 35 and as many
differing varieties of burritos in 40 minutes as they had
been producing in 45.5 This announcement generated some
questions from employees and some employees inquired
into the consequence of failing to meet the announced
production level. Brown informed them that they would
have 3 months to learn the production techniques and that
if after that period they were unable to maintain the
required level they would be terminated. In this
connection, employees were informed that "since
everything had changed" supervision had to have
everything in writing and as a consequence the checker
would not approach the worker at the table and discuss
with the worker her current production level, but would
defer such discussion until she could be spoken to
personally, out of the presence of other workers.
Magana and Brown testified that by relieving
employees of the responsibility of obtaining tortillas and
filling and enabling them to remain at their work station,
production could be increased and the employees' job
made easier.` Both Magana and Brown testified that this
change in procedure made the work of the employees
easier.'
Respondent's employees were called in groups to meetings
conducted in the dining room at Respondent's plant.
Present were Ramona Banuelos, her husband and Samuel
Magana. Employee Guadalupe Leon testified credibly that
at the meeting she attended, Ramona Banuelos asserted to
the employees that the Union would not be beneficial to
them in that the Union was not going to do anything for
the employees and merely wanted the employees' money.
In this connection Ramona Banuelos stated that the union
representatives were thieves and that conditions at the
plant would continue as at present. Mrs Banuelos stated
that the employees had good jobs and received favorable
salary and were treated well. She reiterated that the
Union merely wanted the employees' money and observed
that the president of the Union was in jail and asserted
that the union representatives were "nothing but thieves."
Ramona Banuelos continued by observing that union
representatives had promised some of the employees who
did not have immigration papers that if they entered the
Union the Union would protect them against the
deportation efforts of the Immigration service. She further
observed that the Union could do nothing to protect
employees in this category and also observed that she too
could do nothing to protect them.
Maria Pilar testified that at the meeting she attended
with a group of fellow employees Mrs. Banuelos
characterized Union Representative Juan Barra as a
"skirt-chaser" and stated that he was a thief who merely
wanted to extract the money that the employees would
pay the Union in monthly dues Further, according to the
testimony of Pilar, Mrs. Banuelos stated that employees
who vote in favor or the Union and who are not in the
country legally would be deported!
D. The Alleged Discriminatory Discharges
2. The alleged threat to discharge and deport
Mexican nationals
A few days prior to the February 16 election
'The testimony of record indicates that an employee may work for a
span of time producing only one variety of burnto and then work for an
additional span of time producing two or more different types of burnto
during time period The record further reveals that it is Respondent's
practice by use of a checker at 45-minute intervals to measure the
production of each employee at the burnto table
'Brown's testimony and that of employees Leon, Guevara, and Barrios is
to the effect that the changes wrought on March 1 resulted in an increase
of production above the preelection level, while that of Magana suggests
that the change merely returned production to its preelection level
'The foregoing findings are based upon a composite of the credited
testimony of Samuel Magana, Eloy Brown, Josefa Barrios as supported in
some aspects by that of Guadalupe Leon and Sara Guevara I am unable,
however, to credit the testimony of Josefa Barrios or Guadalupe Leon to
the effect that at the meetings employees were told that the change in
production requirements was dictated by an order from the Union or, as
Barrios additionally testified , that the additional work was required
because the employees wanted the Union Although this testimony was not
specifically denied by either Magana or Brown their testimony does reveal
that they explained to the employees the reason underlying the change in
procedure and the testimony of Magana is specific with respect to the
inclusive nature of what was said to the employees Moreover, I deem it
inherently implausible that either member of supervision would ascribe
union-related considerations as the basis for the changed procedures
Neither do I credit the testimony of Sara Guevara to the effect that
Magana told her, "You have changed , and we have, too" Rather I credit
the testimony of Magana to the effect that he told the employees that the
new procedures resulted from the fact that "things had changed "
1. The termination of Maria Pilar
Maria Pilar worked in Respondent's employ from
September 12, 1965, until March 4 when she was
discharged. Prior to the Feburary 16 election Pilar had
assisted the Union in its organizational effort by speaking
with employees and visiting them at their homes.' Her
conduct among fellow employees in furtherance of the
Union's organizational effort was one of the issues raised
in the objections filed by Respondent subsequent to the
election. Pilar's prounion attitude and efforts were known
by Ramona Banuelos at the time of Pilar's termination
Eloy Brown, who made the effective decision to terminate
'The foregoing testimony of Maria Pilar and Guadalupe Leon was not
contradicted except to the extent that Ramona Banuelos denied having
threatened the employees with discharge or deportation if the Union was
voted in by the employees in the election I credit the testimony of
employees Leon and Pilar generally However, I specifically reject the
testimony of Pilar to the effect that Ramona Banuelos stated in specific
terms that employees who voted in favor of the Union and who were in the
country illegally would be deported I think it unlikely that Mrs Banuelos
would speak in such specific terms concerning this matter and find it more
plausible that she spoke to each group of employees - including Pilar's
group - concerning the question of deportation of Mexican nationals in
the vein and terms as detailed by Leon in her testimony I am convinced
that Pilar 's testimony concerning the statement of Mrs Banuelos was not,
as Pilar testified , a verbatum or textual recount of Banuelos' statement but
rather was a recitation strongly influenced by her subjective interpretation
of the meaning of Ramona Banuelos' statement at the meeting
'The record does not reveal whether Pilar engaged in organizing efforts
at the plant
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pilar and who informed Pilar of her termination, denies
having had any knowledge of Pilar's union activities at the
time of Pilar's termination and further denies having been
consulted by either Ramona Banuelos or Respondent's
counsel concerning Pilar's union activities incident to
counsel's preparation of the objections to the election
which Respondent filed.
Pilar was informed of her termination at the end of the
workday on March 4. She was called to the office of Eloy
Brown and Brown told her that she was being terminated
At the time of Pilar's discharge there appears to have
been no detailed explanation given her as to the reason 10
During the morning hours of March 4, between 10 a.m
and 10 30 p.m , Ramona Banuelos, together with other
members of management and supervision, were in the
flour tortilla department where Maria Pilar was working
with Raul Grandos, a baker. Mrs. Banuelos spent
approximately 15 minutes in the flour tortilla department
and then left After she had departed Maria Pilar stated
to Granados that she was "going to beat the hell out of
Mrs. Banuelos." Granados asked Pilar if she really meant
what she had said and Pilar answered in the affirmative "
After the lunch hour, soon after 12:30 p m., Granados
informed Brown of what Pilar had said and approximately
15 minutes later Brown related Granados' account to
Banuelos.':
In speaking with Banuelos, Brown informed her that
she was going to "let Pilar go " Mrs Banuelos asked the
reason and Brown stated that she had been informed by
Granados that Pilar had told him that she was going to
beat up Mrs. Banuelos. Ramona Banuelos smiled and
again asked why Brown was going to discharge Pilar.
Brown added that Mrs. Banuelos should not treat this
matter lightly as Pilar was capable of carrying out her
threat.
Immediately thereafter Brown spoke with Respondent's
attorney, George Jensen, by telephone and related to
Jensen Granados' recount of his conversation with Pilar,
her own determination to discharge Pilar and the fact that
she had related the matter to Mrs. Banuelos who had not
taken the incident seriously. Brown informed Jensen that
in light of Pilar's prior behavior she felt that Pilar was
able to do what she had stated she intended to do Brown
further informed Jensen that she thought the best thing to
do was to "get rid of Pilar before she harms Mrs
Banuelos." In response, Jensen stated that if Pilar had
stated what had been reported to Brown she should
"Pilar testified that there was some dissention over her willingness to
execute certain document incident to her discharge and Brown ' s willingness
to sign necessary papers for Pilar's submission of them to the employment
office Brown's testimony is inferentially to the contrary
"Maria Pilar denies having made this threat Her denial was positive
and terse However, I credit the testimony of Raul Granados with respect
to this conversation Granados impressed me as a truthful witness while
Pilar in this instance , and another previously detailed, impressed me as less
than candid Moreover, Granados ' testimony gains support from his
pretrial statement given the General Counsel on March 11, 1968, and from
the testimony of Eloy Brown and Ramona Banuelos, which I credit,
tending to establish that Granados reported to Brown a conversation with
Pilar I am convinced, in the circumstances , that Granados did not
fabricate the statements which he attributes to Pilar
"Brown credibly testified that Granados informed him of Pilar's
statement soon after 12 30 p in and I credit her I find that Granados is
inaccurate in his recollection that he informed Brown of the incident at
4 p m The testimony of Brown convinces me that Pilar's discharge was
accomplished the same day that she learned of Pilar 's alleged threat, and
Brown and Pilar both place the discharge earlier than 4 p in
discharge her."
Eloy Brown credibly testified that after conversing with
Attorney Jensen she directed the secretary to have Pilar's
check ready for her. She further testified that she
conducted no investigation of the incident which had been
reported to her by Granados and she specifically testified
that she did not speak with Pilar about it. Brown testified
however, that during the term of Pilar's employment she
had been informed by employees of incidents which led
her to believe that Pilar's emotional and behavioral
propensities were such as to have rendered Pilar capable
of carrying out threats she had uttered to Granados.
Brown testified that her conviction concerning the
propensities of Pilar was based upon an incident which
had been related to her by employees and which allegedly
occurred approximately 3 weeks prior to Pilar's March 4
discharge This incident allegedly involved an argument
between a male driver of a lunch vending truck and Pilar
wherein Pilar was alleged to have used "bad words" in
speaking to the driver about the lunch truck. Brown had
been informed by employees that on an occasion
approximately 2 years preceding her discharge she had
become involved in an altercation with a male employee
over an apron and she slapped the employee and two
other male employees standing nearby at the timeclock. In
similar vein, Brown had been told of an incident which
occurred at a party wherein Pilar had become embroiled
in a fight with a male employee and he had struck Pilar.'°
The tendency of Pilar to use profanity - at least within
the meaning of that term in the parlance and
understanding of the individuals of Mexican decent
involved in this hearing - is amply documented by the
credited testimony of Venancio Olivas, Eva Recio, and
Eloy Brown. Brown testified that in 1967 she had received
complaints from two employees concerning Pilar's use of
profanity on the job and she had informed Ramona
Banuelos of this report. Additionally, independent
evidence of the existence of a tempestuous element of
Pilar's nature is found in the credited testimony of Eva
Recio who testified that while working with Pilar during
the year prior to her discharge various times Pilar "would
make her fist like this (indicating), and then she would say
that she would stamp me with it until her fist was swollen
and disintegrate my face "
In furtherance of its defense that Pilar was an
unreliable employee and that her discharge was
"The foregoing is predicated upon a composite of the credited testimony
of Eloy Brown and Ramona Banuelos Mrs Banuelos testified that when
informed by Brown of Brown's intention to discharge Pilar and after
Brown had recounted the statement which had been ascribed to her by
Granados , she verbally endeavored to dissuade Brown from her intended
course Brown's testimony does not include any reference to such an effort
on the part of Ramona Banuelos and I am convinced that, whatever her
personal reactions may have been, she did not ask Brown to reconsider her
intended action Moreover , the record reveals that Mrs Banuelos made a
separate telephone call to her attorney and Attorney Jensen gave Mrs
Banuelos the same instructions as he gave Brown
"The foregoing is predicated upon the credited testimony of Eloy Brown
I find, as a fact, that Eloy Brown was informed by employees of the
altercations or quarrels in which Pilar had allegedly been involved I have
considered the brief pretrial affidavit of Brown taken by the counsel for the
General Counsel in the investigation of the instant case The document is
not an exhaustive detailed one and I find no persuasive reason for rejecting
the witness chair testimony of Eloy Brown pertaining to the admittedly
hearsay recount of employees to her concerning purported combatative
encounters of Pilar with fellow employees merely because the references to
these encounters are not contained in the affidavit Nowhere in the
affidavit is there a suggestion that Brown undertook affirmatively in the
affidavit to document the rationale of her decision to discharge Pilar
RAMONA ' S MEXICAN FOOD PRODUCTS , INC. 177
predicated, in part, upon that alleged fact Respondent
introduced personnel records and testimony of a former
supervisor, Venancio Olivas tending to reveal a record of
frequent and unexplained absenteeism on the part of
Pilar" However, Eloy Brown, under whose supervision
Pilar worked for several months considered Pilar a quick
and intelligent employee, although she considered her
erratic work attendance record to weigh against her
The testimony of Eloy Brown, considered in
conjunction with a statement in her pretrial affidavit,
which she specifically adopted during her appearance as a
witness in this proceeding, reveals that her explanation of
the reason for Pilar's discharge is grounded solely upon
Pilar's alleged threat to beat up Mrs Banuelos
2 The discharge of Josefa Barrios
Josefa Barrios who commenced working for
Respondent in 1965 was discharged from her employment
on March 12 On the morning of March 12 shortly before
9.30 a m representatives of the U S. Immigration and
Naturalization Service came to the plant and
Respondent's supervision began summoning employees by
name to report to the dressing room where the female
employees changed clothes The purpose of the visit of the
Immigration and Naturalization agents was to check the
papers and passports of certain of the employees and the
awareness of this on the part of some employees caused
substantial disruption As the employees were being
summoned and as Immigration and Naturalization agents
were present on the production floor of the plant, Ramona
Banuelos was also present in the production area. At this
point in time she approached the burrito production table
and instructed the employees at the table to continue their
work asserting that the Immigration and Naturalization
agents had not come to the plant for the purpose of
interrupting their work. While thus in the vicinity of the
burrito production table Ramona Banuelos remarked,
"why don't you call the union now to help you" This
remark was made in a conversational tone and was
directed to no specific person. It was heard however by
several employees working at the burrito production
table i6 Upon hearing Ramona Banuelos"remark Josefa
Barrios, "It is not our fault, Madame." Mrs. Banuelos
then addressed Mrs. Barrios observing that while the
employees may not have been responsible for the presence
of the immigration agents, Barrios might not be in accord
with her observations concerning union assistance to the
employees in the present circumstances. Barrios repeated
her statement that the employees were not responsible for
the presence in the plant of the immigration agents and
Banuelos instructed her to go and punch her timecard
Barrios refused to do so and did not leave her work
station until Banuelos had instructed her several times to
do so and she had several times refused Finally Barrios
left her work station and walked in the direction of the
timeclock. Mrs Banuelos followed her walking in the
direction of her office "
"This evidence gains some support from the testimony of Eloy Brown
"Employees Josefa Barrios, Guadalupe Leon , and Sara Guevara testified
to having heard Mrs Banuelos make a remark of a tenor similar to that
which Ramona Banuelos testified credibly she made
"i have carefully analyzed the testimony of employees Josefa Barrios,
Guadalupe Leon, and Sara Guevara and that of Ramona Banuelos and
base my findings principally upon the testimony of Leon , Guevara, and
Barrios I do not credit the testimony of Ramona Banuelos to the effect
that before instructing Barrios to punch out she informed Barrios twice to
be quiet , and that in disregard of these instructions Barrios
As Barrios walked toward the timeclock she referred
angrily to Mrs Banuelos as "a dog" and expressed
wonderment at how Mrs. Banuelos could "sleep
comfortably" after having done what she had done"
Barrios did not punch out as directed but appears to
have been intercepted by Eloy Brown who had not
witnessed the exchange between Barrios and her employer
Brown, in effect, instructed Barrios to return to her work
station. Barrios did so and worked until 3.30 p m -
normal quitting time - at which time Brown handed her
her termination check
In the meantime, during the morning hours but
subsequent to the Barrios-Banuelos exchange, Brown went
to the office and conversed with Mrs Banuelos concerning
the work interruption that had resulted from the visit of
the immigration agents and during the course of this
discussion Banuelos first apprised Brown of Barrios'
termination. Brown withdrew Barrios' card from its place
at the timeclock, and, following her own normal practice,
permitted Barrios to complete the workday before
requiring her to leave the premises"
Conclusions
The record in this proceeding draws a portrait of a
company whose ownership and supervision is by
individuals of Mexican decent and whose employee
complement is composed essentially if not entirely of
employees of like origin Many of the employees at the
time of hearing were Mexican nationals
The Union undertook to organize Respondent's
employees and top management in the person of Ramona
Banuelos was not favorably disposed, but during the
preelection period the Respondent undertook no blatant
campaign designed to defeat the Union Two days prior to
the election employees were assembled in groups in the
dining area of the plant, and uncomplimentary remarks
were made about the Union's purpose and its leadership
and representatives r° The remarks that Ramona Banuelos
made, rebutting the rumors that had been given currency
by prounion advocates such as Maria Pilar concerning
union protection of employees not legally in the country,
were factual and contained no threat expressed or implied.
They did not violate Section 8(a)(1) of the Act
asserted , in effect , that Banuelos had no status in the plant because the
Union was now in charge The testimony of neither Leon nor Guevara
significantly supports Banuelos in this regard , even though both witnesses
testified candidly and credibly concerning Barrios ' refusal , as instructed, to
punch out I am convinced that Ramona Banuelos ' instruction to Josefa
Barrios to punch out occurred as found above and not at the point testified
to by Banuelos Banuelos conceded that events at the plant on the morning
of the Barrios ' discharge had been disquieting and that her comment
concerning the Union was made under stressful circumstance It is likely
therefore that employees Leon and Guevara would more clearly recall the
precise circumstances , order and substance of the remarks made than
would Mrs Banuelos
"1 credit Ramona Banuelos in essential aspects of this phase of the
occurrence The substance of the remarks uttered by Barrios finds other
record support While Eva Recto and Lucy Madrano place Barrios at her
work station when she uttered her derogatory remarks concerning
Banuelos they place Banuelos within hearing distance of Barrios ' remarks
The further testimony of Madrano does not derogate from this but does
suggest that Barrios continued her ire against Banuelos later when Barrios
returned to work , as found
"it is of no consequences whether the timecard was withdrawn prior to
or after the lunch hour, or whether at the lunch hour Barrios spoke to
Brown concerning the card Mrs Banuelos intended Barrios' termination
to be final and was not disposed to recant and Brown permitted Barrios to
remain at work only in deference to her usual practice
"Even if some of the remarks could be categorized as disparaging, the
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor was the change in work procedure for the
production of Barrios, which was effectuated on March 1,
some 2 weeks subsequent to the election, violative of the
Act. I am convinced upon the record before me that the
change was brought to counter a manifest, postelection lag
in production and was predicated upon legitimate
production and force mamagement considerations
unassociated with antiunion hostility Thus, the increased
production requirements of the changed procedure may
not properly be viewed as a punitive imposition of more
onerous working conditions or standards, because the
accompanying elimination of the necessity of employees
leaving their work table and undertaking the burden of
carrying trays of foodstuff back to the table had a
counterveiling alleviative effect. Some groups were told
that "things had changed" and that a different manner of
checking individual production would thereafter be
followed, but the explanation of the production-related
reason and necessity for the change and of the aforesaid
alleviative, counterveiling modification in work procedures
were sufficient to convince the employees that the new
procedure was not retributive and that their selection of a
union had not been a moving factor in the change
As the General Counsel contends, the locus and
numerical composition of the March 1 meeting, may
properly be considered in evaluating the likely impact
upon employee organization rights of the production
changes announced and effectuated " But the office used
for the meetings was not that of upper or middle
management and the company representatives who
announced the changes were agents responsible for
production and individuals from whom employees would
normally expect to receive such an announcement. As
neither the announcement itself or the situs of the meeting
were coercive under the Act, it follows that the separate
meetings did not become inherently coercive merely by
reason of the size of the group to which the instructions
were transmitted.
In light of the foregoing, I shall recommend dismissal
of the allegations of the complaint alleging independent
violations of Section 8(a)(1) of the Act.
The termination of Josefa Barrios
In agreement with the General Counsel I find that
Respondent was motivated by antiunion hostility in
discharging Josefa Barrios for her remarks disclaiming
union complicity in the descent of the U.S. immigration
agents upon the plant To be certain, the disruptive effects
of the arrival of the Government agents at the plant
during production hours had a disquieting effect upon
management, and particularly upon owner Ramona
Banuelos Her efforts to minimize loss in production
underscore this. But if her remarks which preceded
Barrios' response emanated from anxiety they reveal also
a preoccupation with and present resentment of the resort
of employees to the Union, and their expectation of union
omnipotence. The response of Barrios to the remarks of
Banuelos revealed her fidelity to the Union and triggered
the abrupt action which Banuelos took. The mild rejoinder
which Barrios uttered to her employer was not of a
character, either of delivery or substance, and even though
twice reiterated, to reasonably be characterized as
General Counsel did not allege them as violations of the Act and they are
not here found to be.
"These factors were neither alleged nor litigated as composing separate
8(a)(1) violations
insubordination. The rejoinder may have ruffled the
sensativities of Ramona Banuelos but it was hardly
sufficiently - alone - to have caused her to take the
action she did The evidence reveals a record of
benevolence on the part of Mrs. Banuelos toward her
employees, and it is to be remembered that only once
before, over all the years of her ownership, had Mrs.
Banuelos dictated the discharge of an employee. The
motivation for discharging Josefa Barrios was deeper than
personal sensitivity or pride, and it manifestly was not
predicated upon staffing considerations or work
deficiencies of Barrios. The revealed fidelity of Josefa
Barrios to the union cause which Ramona Banuelos had
challenged and opposed was, I am convinced, the moving
basis for the discharge action which was taken in violation
of Section 8(a)(3) and (1) of the Act
The refusal of Barrios, after her termination had been
effected, to "punch out" as she was instructed to do by
Mrs Banuelos, and her vented anger against Banuelos
came after her discharge had been accomplished by
Banuelos. Thus, these occurrences, perforce, did not enter
in to or form the basis of the decision of Banuelos to
discharge Barrios
The termination of Maria Pilar
I find that the Respondent discharged Maria Pilar
Vidaurrazaga for her union activities and seized upon the
reported threat as a pretext for its action. The record is
clear that Pilar was effusive, combatative and emotionally
capable of using physical force against coworkers.
Common notoriety of her tempermental exploits give
some rational ground for the initial credence given the
report of Granados by Brown. But upon learning of the
alleged threat, Ramona Banuelos did not react with
trepidation and the imminence of the action assertedly
threatened was not so great as to have precluded an
independent investigation into the report of Granados
While Pilar's work record was not so exemplary as to
render her indispensable, neither was it so marginal as to
render her, on that basis, readily expendable upon the first
derogatory rumor." In gauging motive, Pilar's prominence
in union affairs and Respondent's aversion to her
organizational conduct, as memorialized in the objections
filed in the representation case, must be given weight; and
the Union's success in the election and the passage of only
2 weeks' time between the employees' selection of the
Union and the discharge of the markedly prounion
employee, Pilar, must be placed in the balance. If
management in fact had harbored fear for the well-being
of Ramona Banuelos, common prudence would have
dictated a thorough investigation of the Granados report
to the end that the threat could have been diffused and
reasonable protection constructed against future harm to
Mrs. Banuelos at the hand of Pilar. The failure to take
this prudent protective action suggests that the Granados
report was not given the overriding credence claimed for it
and that a desire to rid the Company of a union disciple
rather than to protect the well-being of Ramona Banuelos
dictated the unlawful discharge.
The finding of a violation of Section 8(a)(3) of the Act
flowing from this action of Respondent in no manner
infers acondonation of violence or intimidation on the partof
an employee. Neither does itsuggest a limitation upon an
"The testimony of Eloy Brown, as found above, is such as to reveal that
Pilar's work record formed no basis for her discharge and a detailed
evaluation of her work history is neither warranted nor pertinent
RAMONA'S MEXICAN FOOD PRODUCTS, INC. 179
employer's right to rid itself of any employee who
threatens violence upon the person of a supervisory or
managing agent However, when, as here, temperment and
physical exuberance on the part of an employee has been
long tolerated; when no investigation is conducted to
establish the accuracy of reports of threatened physical
violence; and when record evidence is such as to establish
strong antipathy on the part of the employer toward the
union activities of the discharges, no warrant in social or
public policy justifies the Board, or this trier of fact, from
giving effect to the statutory mandates of the Act.
However, a consideration quite separate which bears
importantly upon the obligation to administer the public
policy of the Act, is the qualification of Pilar for
reinstatement and backpay While the evidence of record
is persuasive that without first establishing its accuracy
Respondent seized the Granados' report as a pretext for
discharging Pilar, it was established at the hearing
through the credible testimony of Raul Granados -
which I accept as against the denial of Maria Pilar - that
Pilar did, in fact, as Granados had reported to Brown,
without provocation by the employer threatened physical
assault upon the person of owner Ramona Banuelos This
threat, articulated prior to her discharge, is sufficiently
grave to deprive Pilar of reinstatement rights and to
forestall the accrual of backpay Z'
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
recommend that Respondent cease and desist therefrom.
With respect to the termination of Josefa Barrios, I shall
recommend Respondent offer her immediate and full
reinstatement to her former or substantially equivalent
position of employment , and make her whole for any
loss of pay she may have suffered because of the
discrimination against her, by payment to her of a sum of
money equal to that which she normally would have been
paid in Respondent ' s employ from the date of her
discharge to the date of Respondent 's offer of
reinstatement , less her net earnings , if any, during said
period Loss of pay shall be computed upon a quarterly
basis in the manner established by the Board in F W
Woolworth . Company, 90 NLRB 289, with interest at the
rate of 6 percent per annum as provided in Isis Plumbing
& Heating Co ., 138 NLRB 716
The aforesaid remedy, of course, presupposes a finding,
which I make, that the postdischarge conduct of Josefa
Barrios was not of a nature sufficient to deprive her of
reinstatement rights under the Act While Barrios'
offensive remarks directed to owner Ramona Banuelos
subsequent to her discharge are not to be condoned, they
were clearly spoken in anger provoked by the
discriminatory treatment of Banuelos toward her. See
N L.R B. v. M & B Headwear Co, 349 F 2d 170 (C A.
4); Santa Fe Drilling Company , 171 NLRB No 27, Blue
Jeans Corp, & Whiteville Manufacturing Company, 170
NLRB No. 149
Upon the basis of the foregoing findings of fact and
upon the record in this case , I make the following:
The conduct of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent discriminated
against Maria Pilar Vidaurrazaga and Josefa Barrios
because they had engaged in union activites , I shall
"See N L R B v R C Can Company 340 F 2d 433 (C A 5 ), setting
aside in pertinent part 144 NLRB 210, cf, Revere Metal Art Co , Inc .
127 NLRB 1028, 1041
CONCLUSIONS OF LAW
I Ramona's Mexican Food Products, Inc , is an
employer engaged in commerce within the meaning of the
Act.
2. Meat & Provision Drivers, Local 626 and Ice,
Frozen Food Drivers & Handlers & Cold Storage
Warehousemen, Local 942, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, are labor organizations within the meaning of
the Act
3. The Respondent discharged Maria Pilar
Vidaurrazaga and Josefa Barrios because they had
engaged in union activities and did thus violate Section
8(a)(3) and (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
5 The Respondent did not engage in any other conduct
violative of the Act, as alleged in the complaint
[Recommended Order omitted from publication I