San Angelo Packing Co.

National Labor Relations Board - Board Decisions

Apr 3, 1967

163 N.L.R.B. 842 (N.L.R.B. 1967)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, bargain collectively with
Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Ind., as the exclusive representative of our
warehousemen and driver-salesmen and, if an
understanding is reached, we will embody it in a
signed agreement.
WE WILL NOT discourage membership in, or
activities on behalf of, Local 337, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., or any other
labor organization, by discharging or otherwise
discriminating against any of our employees in regard
to their hire, tenure of their employment, or any term
or condition of their employment.
WE WILL NOT threaten any of our employees with
discharge or other reprisals if they join, assist, or
support the above-named Union or any other labor
organization.
WE WILL NOT threaten any of our employees with a
reduction in, or loss of, earnings or with any loss of
opportunities to find employment with any other
employer or company if they join, assist, or support
the above-named Union, or any other labor
organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization, to form labor
organizations , to join or assist Local 337, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Michael Zamm, Leonard W. Andrus,
and George Morris full reinstatement to their former
or substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and we will make them whole for any loss
of earnings they may have suffered by reason of our
unlawful discrimination against them.
WE WILL make whole Joseph Paladino for any loss
of earnings he may have suffered by reason of our
unlawful discrimination against him.
G.P.D., INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Michael Zamm, Leonard W.
Andrus, and George Morris, if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.
San Angelo Packing Company and United
Packinghouse , Food and Allied Workers,
AFL-CIO. Case 16-CA-2608.
April 3, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 6, 1966, Trial Examiner John P. von
Rohr 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. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, except as herein
modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
' We will include in the Board's Order appropriate
reinstatement and backpay provisions which the Trial Examiner
inadvertently omitted from his Recommended Order.
In the second paragraph of section III, E of his Decision, the
Trial Examiner inadvertently refers to " .. Stewart's testimony
concerning this conversation with Stewart .... when it is
apparent from the context that he is referring to Millsap's
testimony
163 NLRB No. 118
SAN ANGELO PACKING CO. 843
modified below, and hereby orders that the
Respondent, San Angelo Packing Company, San
Angelo, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein:
1. Insert the following as paragraphs 2(b) and 2(c)
of the Trial Examiner's Recommended Order and
reletter the subsequent paragraphs accordingly:
"(b) Offer to James Dukes, Milton Frazier,
Clarence Hutton, Arthur Chappell, David L.
Richardson, Robert Rodriguez, and Victor Barrera
immediate and full rein statelent to their former or
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may
have suffered by reason of the unlawful
discrimination against them, by payment to each of
them a sum of money equal to that which they
normally would have earned, absent said
discrimination, less their net earnings during said
period. Also make whole Candelario Asebedo,
Indaleci Herrera, Jr., Reuben Montez, Henry
Rodriguez, Gilbert Flores, Felix Gonzales, Jesus
Herrera, Emilio Montez, Gilbert Martinez, and
Willie Zapata for any loss of earnings they may have
suffered as a result of their discharge. Backpay shall
be computed in the manner prescribed in F.W.
Woolworth Company, 90 NLRB 289, and with
interest thereon as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716."
"(c) 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."
2. Move the last indented paragraph of the
Appendix attached to the Trial Examiner's Decision
so that it becomes the fourth indented paragraph.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge filed
on March 7, 1966, the General Counsel for the National
Labor Relations Board, by the Regional Director for
Region 16 (Fort Worth, Texas), issued a complaint on
April 29, 1966, against San Angelo Packing Company,
herein called the Respondent or the Company, alleging
that it had engaged in certain unfair labor practices
affecting commerce within the meaning of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. The
Respondent's answer denies the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held in San Angelo,
Texas, on August 22, 23, 24, and 25, 1966. All parties were
represented by counsel and were afforded opportunity to
adduce evidence, to examine and cross-examine
witnesses, and to file briefs.
Briefs have been received from the General Counsel
and the Respondent and they have been carefully
considered.
Upon the entire record in this case and from my
observations of the witnesses, I hereby make the
following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its
principal office and place of business located at San
Angelo, Texas, where it is and has been engaged in the
production of meat products . At the hearing the parties
stipulated that since latter December 1965, to the date of
the hearing herein, the Respondent purchased and
received livestock , either directly or indirectly, from
outside the State of Texas, valued in excess of $50,000.
The Respondent also acknowledged that it anticipates
purchasing and receiving products valued in excess of
$50,000 annually from points and places located outside
the State of Texas.
The Respondent does not contest the jurisdiction of the
Board and I find that it is and has been engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. -
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse , Food and Allied Workers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Under the Joy Silk Mills doctrine,' it is charged that
Respondent did not have a good-faith doubt of the Union's
majority status when it refused to recognize and bargain
with the Union on or after February 18, 1966, thereby
violating Section 8(a)(1) and (5) of the Act. Whether or not
the Respondent had a good-faith doubt largely depends
upon the merit, or lack thereof, to the complaint's further
allegation that the Respondent discriminatorily discharged
or laid off 17 employees on February 18, 1966, in violation
of Section 8(a)(3) and (1) of the Act. Additionally, the
complaint alleges that Respondent committed other acts
violative of Section 8(a)(1) of the Act and that it discharged
employee George Millsap on February 23, 1966, in
violation of Section 8(a)(3) of the Act.
B. The Organizational Campaign; the Union's Majority in
the Appropriate Unit
San Angelo Packing Company, the Respondent herein,
was formed in early 1965 by six individuals, the majority of
whom reside in or near San Angelo, Texas. Following
construction of a plant facility, operations began in the
' Joy Silk Mills v N L R.B , 185 F 2d 732 (C A D C ), cert
denied 341 US 914.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
middle of December 1965. Marion Ramon, the Union's
field representative, testified than an organizational
campaign began shortly after the commencement of the
plant operations. However, the actual signing of union
authorization cards by employees did not occur until on
and after January 13, 1966,2 the final cards having been
signed at a union meeting held on February 15, 1966.
The complaint alleges, Respondent's answer admits,
and I find, that the following unit is appropriate for the
purposes of collective bargaining: All production and
maintenance employees of Respondent employed at its
San Angelo, Texas, plant, exclusive of office clerical
employees, technical and professional employees, guards
and supervisors as defined in the Act.
As detailed hereinafter, the Union requested recognition
by letter dated February 17, 1966, which letter was
received by the Company on the following day.3 At the
outset of the hearing, the Respondent put the General
Counsel to his proof concerning the issue of majority.
After the General Counsel had called five employees who
testified as to their signing union membership cards, the
Respondent agreed to stipulate as to the authenticity of all
the cards proffered by the General Counsel, except to
those of employees George Millsap, Jr., Indalecia Herrera,
Sr., Indalecio Herrera, Jr., C.C. Patton, Willie Zapata, and
Gilbert Flores. Millsap, Herrera, Junior, Zapata, and
Flores, who were subsequently called, each credibly
testified that he signed a union membership card prior to
the request for recognition. Additionally, Zapata credibly
testified that C.C. Patton signed a card in his presence,
and Indalecio Herrera, Jr., credibly testified that he signed
a card for his father, Indalecio Herrera, Sr., this with the
latter's authorization that he do so.4 Upon this credited
testimony, I find that cards of Millsap, the two Herreras,
Patton, Zapata, and Flores to be valid cards. The cards of
these 6 employees, added to those received in evidence
through stipulation of the parties, gives the Union a total of
36 valid union membership cards which it recieved from
the employees prior to its request for recognition.5 In
addition to the foregoing, the credible evidence establishes
that employees John Mayberry, Wilbur Keith, and
Langston Dewitt were members of the Charging Union and
were employed by the Respondent at the time of the
Union's recognition requests It is therefore found that the
Union also represented these employees on the latter date.
As to the number of employees in the unit, it was
stipulated that there were 65 production and maintenance
employees on Respondent's payroll at the time it received
the Union's request for recognition. Accordingly, with the
authorized representation of 39 of the 65 employees in the
unit , I find that the Union held a majority status in the
appropriate unit on February 18, 1966, the date on which
the Respondent received the Union's demand for
recognition.
C. Chronology of Events
At a union meeting held at the Towne House Motel in
San Angelo on the evening of February 15, 29 of
2 This is evident from the dates appearing on the authorization
cards which were received in evidence
3 All dates, unless otherwise indicated, refer to 1966
4 Herrera, Senior, cannot write English
I From the cards received in evidence, I have excluded the card
of C C Patton, who, it was agreed , is a guard I have also
excluded the cards of Ernesto A Machado and William Chappel,
the parties having agreed that these employees were not on
Respondent's payroll at the time of the Union's demand
Respondent's employees signed a statement to the effect
that they agreed to become members of the Union's
organizing committee. Those who had not done so before
also signed union membership cards. On February 16,
Union Representative Marion Ramon wrote a letter to the
Company which stated as follows:
This is to advise you that there is an organizing drive
under way at San Angelo Packing Company in San
Angelo, Texas; and the employees listed below have
accepted membership in the United Packinghouse,
Food and Allied Workers, AFL-CIO, and are also
members of the organizing committee. They are as
follows:
1. Arthur Chappell
2. Woodrow Murray
3. Alcie Clemons Jr.
4. James Dukes
5. Leandro Jurez
6. Emilio P. Montez
7. Candelario R. Asebedo
8. Joe Herrera
9. Robert Rodriguez
10. George Asebedo
11. Clarence Hutton
12. Leonardo R. Talamantes
13. Jesus Herrera
14. Oliver C. Montemayor
15. Gilbert L. Flores
16. Indalecio Herrera
17. Raymond Hutton
18. Manuel D. Asebedo
19. A. L. Rodriguez
20. Milton Frazier
21. Victor Barrera
22. Felix Gonzales
23. Mike Acosta, Jr.
24. Reuben P. Montez
25. David L. Richardson
26. Gilbert Martinez
27. Henry Rodriquez
28. Willie Zapata
29. Ernesto A. Machado
It is undisputed that the Respondent received the above
letter on February 17. On February 17, the Union
addressed a second letter to the Respondent (which the
Respondent 'admits having received on February 18), in
which it advised that a majority of the employees in the
unit had designated the Union as their collective-
bargaining agent, and that it requested recognition as their
bargaining agent. The letter further stated:
We are prepared to prove to your satisfaction by
cardcheck between a representative of our
organization and a representative of your Company or
by a representative of the National Labor Relations
Board or any other disinterested party mutually
agreeable that we represent the majority of the
employees described above.
On February 23, the Respondent's attorney advised the
Union by letter that it was willing to cooperate in arranging
fi These employees were on layoff status from Armour and
Company while in the employ of Respondent They were
members of the Union when employed by Armour and they
retained their membership in good standing while in
Respondent's employ
' After hearing all the evidence, I doubt that the Respondent at
this time seriously contests the Union's majority status and note
that it did not press this issue in its brief
SAN ANGELO PACKING CO. 845
a representation election but that it would not recognize
the Union "inasmuch as our client has a bona fide doubt
that your Union represents an uncoerced majority of its
employees in an appropriate bargaining unit."
Aside from the above correspondence, I turn now to
other events which occurred subsequent to the union
meeting of February 15. As will be discussed below, 17
employees were laid off on February 18. Prior to this
layoff, however, the employee' s union activity came to the
attention of J.E. Davis, co-manager and part owner of the
Company, and this activity prompted him to make a
speech on the kill floor to the 34 employees who worked in
this department.8 Although there is some dispute as to the
exact date of this speech, the witnesses agreed that Davis
spoke to the employees before they started work in the
morning, this either the day before the February 18 layoff
or 2-3 days prior thereto.' Except for minor variances,
there is no dispute as to the substance of what Davis told
the employees on this occasion.10 From the credited
testimony of employee witnesses, as well as the
concessions of J.E. Davis, I find that Davis spoke to the
employees as follows:" Beginning with the statement that
he had heard the employees were trying to bring a union in
the plant, Davis went on to say that the employees did not
need a union, that the Union was "no good."12 He added
that he saw no reason for the employees to pay union dues
for something they could get for nothing, that all the Union
wanted was their money, and that the employees could
form a union of their own in the plant. He then proceeded
to relate the benefits the employees could expect from the
Company. Without stating just when these benefits would
be put into effect, Davis said that if the Company was
successful in its first year of operation there would be a
yearly bonus and the employees would share in the profits;
also that the Company would give them paid vacations and
that a group hospitalization plan would be provided.13
Davis finally asked the employees to speak up individually
and give voice to their complaints. Employee Arthur
Chappell thereupon said that the employees were
receiving only one 15-minute break a day, whereas he felt
they should have two break periods. Davis corrected this
situation immediately by telling Foreman Ronnie Stewart,
who was present, to thereafter grant the employees two
breaks.14 Although some employees complained that they
were not receiving enough help on certain operations,
Davis testified that the most frequent complaint voiced by
the employees at this meeting was their concern about not
putting in sufficient hours to earn enough money.15 The
meeting, which lasted 15-20 minutes, concluded with this
airing of the employees ' complaints.16
D. The Discriminatory Layoff ofFebruary 18
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act by its layoff of employees on
February 18, 1966. This layoff occurred about noon on this
date, at which time the employees affected received the
following note attached to their paychecks : "Due to the
shortage of livestock at this time we are forced to curtail
our personnel . Until this condition changes we will not
need your services . Your Thursday and Friday pay will be
ready Monday noon ." Involved in this layoff were the
following 17 maintenance and production employees:"
Candelario Asebedo
James Dukes
Milton Frazier
Indalecio Herrera, Jr.
Clarence Hutton
Reuben Montez
Henry Rodriguez
Arthur Chappell
Gilbert Flores
Felix Gonzales
Jesus Herrera
Emilio Montez
David L . Richardson
Robert Rodriguez
Victor Barrera
Gilbert Martinez
Willie Zapata
From the evidence which I turn to now , there can be no
question but that the General Counsel has made a strong
prima facie showing that the February 18 layoff was
discriminatorily motivated . In support of this conclusion,
the record first indisputably shows that the only
employees laid off by the Respondent on this date were
employees known by it to be prounion adherents. As
indicated above, the Union's February 16 letter named 29
employees who were members of the Union and members
of the Union 's organizing committee . Included among the
29 employees so named were each of the 17 employees
whom Respondent selected for layoff on February 18. As
8 Davis said he was prompted to make the speech because he
had learned that there was "dissatisfaction " among the
employees He later explained that he so concluded because
several employees came up to him a day or so before the meeting
and said they wanted a union He said he did not recall the names
of any of these employees
" In view of all the other evidence in this case , I do not deem the
exact date of this speech to be a controlling factor in resolving the
issues herein
10 1 do not credit Davis' testimony that he gave a similar speech
to the employees in February or March It is clear from the
credited testimony of the employees who testified that they were
never before spoken to in any like manner.
i l Some of the employees had little or no knowledge of English
It is undisputed that employee Alfred Mortinez, at the request of
Davis , translated Davis' remarks into Spanish
11 The credited testimony of Elfonzo Rodriguez
13 The Respondent reduced these proposed benefits to writing
in a pamphlet which it distributed to the employees on
February 23, 1966
" Davis testified "so we instituted that program [two break
periods] right then '
15 Employee David Richardson also testified that a number of
employees complained that they were not getting enough hours
i8I do not credit the uncorroborated testimony of Davis
Richardson that during this speech, "he [Davis] said something
about if the union came in he couldn ' t afford it , that he would have
to close the plant down, or something like that " None of the other
employee witnesses testified that Davis made any statement to
this effect Neither do I credit Richardson ' s uncorroborated
testimony that Davis promised the employees a wage increase if
"they worked together " It is possible that Richardson confused
this with mention of the bonus Mreover, employee Woodrow
Murray testified that he did not recall Davis saying anything about
a wage increase
17 Although Robert Rodriguez , Victor Barrera, Gilbert
Martinez , and Willie Zapata were not named in the complaint, it
was disclosed at the hearing that these employees were included
in the February 18 layoff It may be further noted that employee
Romon Lozano voluntarily quit his employment with the
Respondent on February 18
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously indicated, Respondent, on this date, had a total
of 66 production and maintenance employees in its
employ. It is reasonable to infer that it was not just
coincidental that 17 of the 29 named prounion employees
were selected for layoff whereas not a single one of the
remaining 37 employees were among those affected. The
Board and the courts have long recognized that a
disproportion in the percentage of layoff as between union
adherents and others is persuasive evidence of
discrimination. Is
The General Counsel's case is further buttressed by the
very failure of the Respondent to present a credible
explanation either as to the economic justification for the
February 18 layoff, or, assuming any such justification, the
reason that only employees known by it to be members of
the Union were selected for layoff. As has been indicated,
the reason given the employees for the layoff was "a
shortage of livestock at this time." The reason given by
Respondent at the hearing, however, was not this simple.
Thus, because it was my impression that Davis' testimony
on direct and cross-examination concerning Respondent's
explanation for the layoff was fragmentary and unclear (an
impression, I might add, which was strengthened after
studying the transcript of testimony) the following colloquy
occurred upon my further questioning of him in an effort to
clarify the matter:
Q. (By TRIAL EXAMINER) I certainly hope I am not
going to confuse you, but I have to decide this case
and there is just one area, one point that I would like
to clarify if I can.
Now, with respect to the people who were laid off
on February 18, 1966, I would like to know, if I could,
whose decision it was to layoff these people and when
that decision was made.
A. It was a joint decision between Leonard Goff
and myself directly, but we had discussed it with Mr.
Dudley and Mr. Hurt and maybe one of the other
directors in the firm from time to time that we were
going to have to take action if the livestock receipts
did not increase. So at the time-so it was a decision
that wasn't made by any single person except when it
was actually done, Leonard and myself decided it was
time to act.
Q. Then my question is: When did you and Mr.
Goff make the final decision, the actual decision that
this layoff would be made?
A. The day that we had the meeting. Right after
the meeting.
Q. Right after the meeting on the Kill floor?
A. Uh-huh.
Q. Now, could you state again why, at this time, at
this particular time, you had decided to lay these
people off?
18 Syracuse Tank & Manufacturing Company, Inc, 133 NLRB
513, 525, N L R B v Chicago Steel Foundry, Inc, 142 F 2d 306,
308 (C A 7), N L R B v E L Dell, Jr, Trading as Waycross
Machine Shop, 283 F 2d 733, 736 (C A 5) In fact it has been held
that the failure of an employer to offer proof concerning the
percentage of its employees who were union members justified an
inference of discrimination in the discharge of a disproportionate
number of union adherents N L R B v Dinion Coil, Co , Inc , 201
F 2d 484 (C A 2), and see N L R B v. Shedd-Brown Mfg Co., 213
F 2d 163 (C A 7) Argentam Mining Co of Nevada, 129 NLRB
439, enfd 296 F 2d 219 (C A 9)
1" I have not commented on the number of sheep killed because
the sheep line, which is largely mechanical , was not put in
operation until the first week in February In fact , the records in
A. Well, because the gist of their complaints were
that they weren' t getting in enough hours and we
decided that we had better have a few people making
a good living rather than a lot of people just scratching
by.
Should I elaborate a little bit?
Q. If you wish.
A. Well, I mean , added to the fact that we weren't
getting enough livestock for the number of people we
had to make a good living, you know, killing them.
So we decided then that the livestock receipts were
not likely to increase very soon and we had better cut
down on our people.
While this testimony of Davis' includes a reason for the
layoff which was not given to the employees, I shall
consider first whether there was economic justification
(i.e., a shortage of cattle) for a layoff at this particular time.
In this regard, the records introduced at the hearing
reflecting the number of cattle killed during the 8 days
prior to the layoff and the several months which followed
do not support Respondent's apparent contention that
there was any real decrease in the number of cattle
available for kill on February 18 as contrasted to other
dates either before or after the layoff. For example,
compared to the 104 cattle killed on February 18, there
were 57 killed on February 10, 108 on February 11, 195 on
February 14, 205 on February 21, and less than 100 on
each of 11 days in March. The only conclusion that I can
draw from Respondent's records is that there was a wide
daily fluctuation in the number of cattle killed, this ranging
from less than 100 to over 200 per day.'9 Apart from the
foregoing, there is direct evidence that Respondent was
left short handed as a result of laying off the 17 employees.
Thus, employee Elfonzo Rodriguez, a skinner, testified
that Davis and J.O. Clayton, the latter a hide grader,
normally do not work on the kill line but that he observed
them doing so in the days immediately following the layoff.
He also observed Foreman Ronnie Stewart working on the
line at this time, although he said it is not uncustomary for
Stewart to give a hand on the line. George Millsap, Jr., a
maintenance employee, also credibly testified to observing
Davis, Clayton, and Stewar. work on the kill floor after the
layoff.20 Millsap further testified that during this period
two other employees departed from their normal duties to
work on the kill floor, these being Frank Chadwick, a
mainteiance man, and Max Robinson, the cattle buyer. In
addition to the foregoing, the lack of an economic need to
lay off 17 employees is further manifested by
Respondent 's concession that it found it necessary to
recall 2 of the laid-off employees on the following Monday,
February 21,21 and that it subsequently recalled 8 other of
the laid-off employees.22 Davis attempted to explain this
by testifying that these employees were recalled because
evidence disclose that sheep were killed on only 2 of the days
prior to the layoff Thereafter there was a wide fluctuation in the
number of sheep killed per day, these ranging from 201 to 1,130
20I do not credit Davis ' testimony to the effect that he and
Clayton did not engage in an unsual amount of work on the kill
floor on the days following the layoff
21 These employees were Gilbert Martinez and Willie Zapata
22 The dates of the recall of these employees do not appear in
the record, although it is undisputed that all but Jesus Herrera
were recalled prior to the issuance of the complaint herein The
other employees so recalled included Candelario Asebedo,
Indalecio Herrera, Jr , Reuben Montez, Henry Rodriguez, Gilbert
Flores, Felix Gonzales, and Emilio Montez
SAN ANGELO PACKING CO. 847
"the livestock receipts had increased and we found that
we needed more people to handle the business that we
were getting ." However, this testimony is most
unpersuasive in view of the fact, as noted above, that the
fluctuation in the receipt of cattle on February 18 and 21
was not any greater than it customarily was on many other
occasions, both before and after the layoff, yet on these
other occasions Respondent did not resort to any similar
layoff or recall of employees.
In sum , and by reason of all the foregoing, I find that
Respondent has not shown an economic need for the layoff
which occurred on February 18. But assuming arguendo
the justification for the layoff of some employees about
this time, this carries us to the undisputed fact that only
union employees were selected for layoff. Turning then to
Davis' explanation for the manner in which the employees
were selected, Davis testified that immediately following
the kill floor meeting he asked Ronnie Stewart, the kill
floor foreman, `to prepare me a list of his least proficient
people and the number that he could get along without."
He said that Stewart gave him such a list on the following
day. Davis also testified that he spoke to Vernal Brown,
assistant foreman of the boning room, and "discussed with
him who he would prefer that we lay off in there." He said
that Brown did not give him a written list, that "we just
had an oral discussion." The testimony of Ronnie Stewart,
called by the Respondent, was very brief. Stewart testified
merely that 3 or 4 days before the layoff Davis told him
that "we were having a shortage of cattle and that I needed
to let my least efficient man go." He said that, "I made out
the list and gave it to him about a day after."23 Stewart
gave no testimony whatsoever to explain what factual
basis or mental process he used to make the individual
selections. I find the testimony of Davis and Stewart
patently inadequate to explain the unlikely coincidence
that only employees named in the Union's letter were
chosen for layoff. This is especially so when it is
considered that the letter was received only a day before.
In fact, from my observation of the witnesses and upon the
entire record in this case, I cannot and do not credit the
testii:lony of Davis and Stewart to the effect that they cor-
roborated in any nondiscriminatory selection of employ-
ees to be laid off.24 Indeed, I am convinced that if Davis
in fact had determined to lay off any employees prior
to receipt of the Union's letter on February 17, such layoff
was designed to thwart any further organizational activity
of which Davis then admittedly had knowledge. However,
upon the receipt of the Union's letter prior to the layoff, I
am convinced that either (1) any previous decision to lay
off any employees was altered and substitutes were
selected from the employees named in the Union's letter,
or, (2) (and I think this more than likely to have been the
case) the decision to lay off any employees was prompted
by receipt of the Union's letter and all employees who
were laid off were selected from the names set forth
therein.
Upon the entire record, I conclude and find that the
Respondent would not have laid off the 17 employees at
noon on Friday, February 18, 1966, but for a desire to
undermine the Union, to cause the Union to suffer a loss of
its majority, and to impress upon the employees as a whole
the risks involved in engaging in union activity. To
summarize, I base this finding on the following:
(1) Respondent's animosity toward the organization of its
employees, as demonstrated by Davis' speech to the
employees on the kill floor within a day or so of the layoff;
(2) the timing of the layoff, coming as it did on the day
following its receipt of the union letter wherein the Union
advised Respondent of the organizational drive and
wherein it named the employee members of the organizing
committee; (3) the fact that only employees named by the
Union in the aforesaid letter were selected for layoff; and
(4) the Respondent's failure to show economic necessity
for the February 18 layoff as well as its failure to credibly
justify its selection of only union members named in the
Union's letter for layoff.25
Finally, Davis testified that James Dukes, one of the
employees laid off on February 18, would have been
terminated in any event because the doctor had "tagged"
the room where he worked for uncleanliness. He did not
elaborate as to any of the circumstances. Dukes, a
boxmaker, testified that he never recalled the boxroom
being tagged. Davis also testified that Brown
recommended that Dukes be terminated. Brown denied
that he recommended Dukes be terminated and instead
testified that Davis advised him that Dukes had signed for
the Union and that he was going to lay Dukes off. While I
am inclined to credit Brown's testimony over that of Davis
concerning Dukes, it is significant that Dukes was given
the same reason as the other employees for the layoff, viz,
"a shortage of livestock." Accordingly, I am persuaded
that the foregoing testimony of Davis concerning Dukes
was at best an afterthought and I find and conclude that
Dukes was discriminatorily laid off along with the other
employees who were laid off at the same time.
E. The Alleged Discrimination Against George
Millsap, Jr.
There remains for consideration the case of George
Millsap, Jr., who was terminated on February 23, 1966.26
Millsap was among a group of employees who were hired
in June 1965 to work on the construction of the plant. Upon
completion of the building, Millsap was retained to work as
23 When asked whether Davis discussed "anything concerning
the union associated with this layoff," Stewart answered, "Well,
not really just once that I told him that I had heard rumors about
the union "
24 Foreman Vernal Brown was discharged by the Respondent
in the middle of March 1966 Called as a witness for the General
Counsel, Brown to all appearances impressed me as an honest
witness who was attempting to tell the truth. I credit his undenied
testimony that he had worked with Davis at another plant and that
he knew Davis to be antiunion Brown also testified to one or more
conversations which he had with Davis relative to the February 18
layoff Having carefully considered all this testimony, I am
impelled to conclude that it was far too confused and uncertain,
and at times inconsistent , to permit me to rely upon it However, I
do credit Brown's testimony that he-did not recommend to Davis
the names of any employees for layoff
25 Although, as previously noted, a total of 9 of the 17 laid-off
employees were recalled, Respondent's records reflect that fewer
employees worked on the kill floor after the layoff than did prior
thereto Whether Respondent at some point might have been
economically justified in laying off some employees, this does not
alter my finding that the February 18 layoff, under all the
circumstances described above, was timed and prompted by
antiunion considerations
26 The complaint alleged that Millsap was laid off with the other
employees on February 18, 1966 The General Counsel amended
the complaint to conform to the above date when the facts
concerning Millsap's termination were brought to light at the
hearing
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first week of April.15 Upon the completion of the building
in May this machinery was installed therein and has been
in operation since, producing the same products
Respondent had intended for it to produce at Neville
Island.
These facts lead but to the conclusion that at least by
the middle of March, if not earlier, Respondent had under
serious consideration, if not already decided upon, a plan
to close the Neville Island plant and transfer its operations
to its southern plant. Respondent had originally conceived
the plan because of anticipated trouble in bargaining with
a certified representative of Respondent's employees.
When that anticipated difficulty in bargaining actually
developed, Respondent put its plan into high speed
execution as a means to evade and eliminate these
bargaining problems by the simple device of closing
Neville Island, thus ridding itself of both its union
employees and their certified bargaining representative.
Therefore, it is clear, and I find, that Respondent's
motivations for closing Neville Island and transferring its
operations to the new York plant with its new crew of
employees recruited for it by the Chamber of Commerce
was discriminatory; i.e., to evade and eliminate
Respondent's obligation to bargain with the Union and to
deprive its Neville Island employees of their right to
bargain with Respondent through their certified-
bargaining representative.
On the other hand, Respondent argues that it decided
on April 23 to close Neville Island for the following
reasons:
(a) The plant continued to be seized by the pickets;
(b) Access continued to be seriously impaired;
(c) The services of common carriers were not available
because of the illegal picketing; 16
(d) Nothing in the Union's conduct suggested an early
termination of the strike on terms satisfactory to
Respondent;
(e) Normile's apparent lack of interest in terminating
the strike; 17
(f) Continuing fixed expenses for plant production; and
(g) The Company's serious financial condition.
The short and conclusive answer to the economic
contentions made is that Respondent originally conceived
the plan to close Neville Island and transfer its operations
elsewhere as early as January 11 when there was no strike,
when there was no alleged "seizure" of the plant by
pickets, when there was no alleged trouble in obtaining
common carriers , and when there were no financial
15 Respondent argues that this machinery was so diverted
because Respondent could not get it into Neville Island because
of the pickets This is not the fact, because Martin finally
admitted that Respondent made no effort to get anything into the
plant during the strike
18 To Respondent this picketing apparently had a chameleonic
quality for Attorney Heard wrote the Commissioners of Allegheny
County under date of April 14 in pertinent part as follows:
On March 12, 1965, a shipment of the Company's products
was transported from the plant When the two trucks, owned
by a common carrier were traversing Route 51 in Shaler
Township, they were halted by a mob , at least one of whom
has been indentified as a member of the Union, the drivers
assaulted and battered, and the trucks severely damaged
Yet 6 days later, on April 20, Heard wrote the common carrier
involved as follows.
We understand that this picketing is peaceful and that the
sheriff of Allegheny County is enforcing the Court Order
worries. Thus the motivating factor in the conception of
this plan was Respondent ' s desire to evade its legal
obligation to bargain with the Union as the representative
of its Neville Island employees. This remained the
motivating force behind the plan from its very germination
to its fruition in the form of goods, formerly produced at
Neville Island, coming out of the York plant. Actually
Respondent made no effort to continue production at
Neville Island after March 1. From that time on,
Respondent's sole concern was to get the York plant into
operation producing the goods formerly produced at
Neville Island.
The York plant was indeed the traditional runaway
shop.
2. The refusal to bargain
General Counsel and the Union conceded at the hearing
that until about February 27 Respondent was bargaining in
good faith.
This concession makes it clear that the March 1 strike
began, at least, as an economic strike.
However the complaint alleged that:
(a) "Since on or about February 27, 1965," Respondent
"purported to negotiate" with the Union "although with no
intention of entering into any final or binding collective
agreement"; (b) on or about April 23, Respondent
"unilaterally and without prior notice to or consultation
with the Union, removed, transferred, and relocated its
operations from Neville Island to York"; and
(c) Respondent terminated its employees "in order to
avoid its obligation to bargain with the Union."
It is now settled law that an employer violates Section
8(a)(1),(3), and (5) of the Act if he closes a plant and
transfers its operations, but not the employees, to another
locale in order to deprive his employees of their statutory
right to organize and bargain collectively through a
representative of their own choosing. 18
This is the law applicable here.
On the other hand the law also now seems to be well
settled that, even in those cases where the motivating
force behind the change in operations is made purely and
solely for economic reasons-unlike the instant case-the
employer is under a duty to notify and consult with the
bargaining representative of the m it employees whose job
security will be affected by the contemplated changes:
(1) When that employer first has the question of making
a decision about the contemplated changes under serious
limiting the number of pickets and insuring free ingress and
egress from the Neville Island plant
The incident of March 12 was the only incident during the
strike
1' These contentions overlook the fact that on April 14; the
Union offered to return to work the next day and permit a joint
board of timestudy experts to set the wage rate retroactively
Schafer rejected this offer immediately and without consultation
with his principal on the amazing ground that this would be an
"abdication" of the principle of collective bargaining
II N L R B v Wallick & Schwalm Company, et a/, 198 F 2d
477 (C A 3), N L R.B v Preston Feed Corp , 309 F 2d 346,
347-350 (C A 4), N L.R B v Winchester Electronics, Inc , et al ,
295 F 2d 288, 290-292 (C A 2), A M Andrews Company, etc , v
NLRB, 236 F 2d 44,45 (C A 9),enfg 112NLRB626,NLR.B
v Frank Mackneish, et al, 272 F 2d 184 (C A 6), enfg 119 NLRB
162,164-170, Ox Wall Too/Co ,Ltd, et al v NLRB,310F2d
878 (C A 2), enfg 135 NLRB 840, Sidele Fashions, Inc , et al , 133
NLRB 547, enfd 305 F 2d 825 (C A. 3), Garwin Corporation, 153
NLRB 664, -Valley Forge Flag Company, 152 NLRB 1550
SAN ANGELO PACKING CO.
make no finding as to whether any of Davis' statements
violated Section 8(a)(1) of the Act.32
Although, as previously noted, Foreman Vernal Brown
was uncertain and confused in recalling certain past
events concerning which he testified, he was very positive
in his testimony that he told several employees that they
would be laid off if they signed a paper for the Union.33 He
also testified that he asked the employees from Paris if
they had signed for the Union. I am convinced that Brown
was telling the truth concerning these conversations with
the employees and I have no hesitancy in crediting his
testimony to this effect Since Brown admittedly was a
supervisor within the meaning of the Act when he so
threatened and questioned employees concerning their
union activities . I find such conduct to be violative of
Section 8(a)(1) of the Act.34
G. Concluding Findings Concerning the Refusal to
Bargain
As the Respondent recognizes in its brief , it is well-
established law that an employer may, in good faith , insist
on a Board election as proof of a union's majority status
unless it is motivated not by any bona fide doubt but rather
by a rejection of the collective-bargaining principle or by a
desire to gain time within which to undermine the Union.
Joy Silk Mills v. N.L. R.B., 185 F.2d 732 (C.A.D.C.), cert.
denied 341 U.S. 914.35 The question of whether the
Respondent entertained a good-faith doubt of the Union's
majority status must be assessed in the light of all the
surrounding circumstances , particularly by its
contemporaneous conduct. Engineers & Fabricators, Inc.,
156 NLRB 919.
Respondent here rests its defense upon the testimony of
Davis to the effect that he doubted the Union 's majority
status because the Union' s letter of February 16, 1966,
listed only 29 employees as having accepted membership
in the Union . However, I can hardly believe that Davis
failed to understand the clear and unambiguous language
in the Union 's letter of February 17, 1966, in which it then
not only claimed to represent a majority of the employees,
but in which it also offered to prove such majority status
by a card check between its representative and any
representative whom the Company might choose. When
this is considered together with the fact that Respondent
promptly reacted to the Union' s letter of February 16 by
discriminatorily laying off 17 employees in the unit,
Respondent ' s conduct is tantamount to an absolute
refutation of any good-faith doubt and is indicative of a
rejection of the collective-bargaining principle and a desire
"merely to gain time to dissipate the very majority which it
ai It will be recalled that during this speech one of the
employees complained that there was only one daily break period
and that Davis immediately responded by telling the foreman to
thereafter grant the employees two daily break periods Again,
there is no allegation or contention that this conduct violated the
Act and I make no finding with respect thereto
31 1 credit Brown's testimony that he was advised by the
employees of the organizational efforts that were taking place
Although there was no "paper ," as such, being circulated, it is
undisputed that union membership cards were being circulated
among the employees for signature
3 4 No proof was offered concerning various other allegations of
8(a)(1) conduct by the Respondent Other than the violations
herein found , I shall recommend that such allegations be
dismissed
as See also Lake Butler Apparel Company , 158 NLRB 863, and
cases cited in fn 2 therein
849
now contends was in doubt."36 I therefore conclude and
find that by refusing to recognize the Union, the
Respondent has violated Section 8(a)(5) and (1) of the
Act.37
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8( a)(1), (3), and (5) of the Act, it will be
recommended that Respondent be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent offer to James
Dukes, Milton Frazier , Clarence Hutton, Arthur Chappell,
David L. Richardson , Robert Rodriquez , and Victor
Barrera immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to
their seniority and other rights and privileges , and make
them whole for any loss of earnings they may have
suffered by reason of the unlawful discrimination against
them , by payment to each of them a sum of money equal to
discrimination , from the date of their layoffs to the date of
offer of full reinstatement , less their net earnings during
said period. Backpay shall be computed in the manner
prescribed by the Board in F . W. Woolworth Company, 90
NLRB 289, and with interest thereon as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716. It is further
recommended that the Respondent make whole
Candelario Asebedo, Indalecio Herrera, Jr., Reuben
Montez, Henry Rodriquez , Gilbert Flores, Felix Gonzales,
Jesus Herrera, Emilio Montez, Gilbert Martinez, and
Willie Zapata in the manner aforesaid.
It will also be recommended , affirmatively, that
Respondent be ordered to recognize the Union and bargain
with it, upon request, and post appropriate notices.
Because of the serious nature of the unfair labor
practices here involved, it will be recommended that the
Respondent cease and desist from infringing in any
96 N L R B v . Philamon Laboratories , Inc, 298 F 2d 176, 180
(C A 2) N L R B v Overnite Transportation Company, 308 F 2d
279, 283 (C A 4) The termination of the prime movers of the
union campaign (here, the members of the organizing committee)
was a violation of the type which best serves to undermine a
union Uniform Rental Service , Inc, 161 NLRB 187, N L R B. v
Entwistle Mfg Co , 120 F 2d 532, 536 (C A 4)
91 Under the circumstances of this case, it is immaterial that
Respondent may have received the Union 's letter of February 17,
an hour or so after it discriminatorily laid off the employees
Illegal conduct both before and after the demand may show bad
faith N L R B v Boot -Ster Manufacturing Co , Inc , 361 F 2d 325
(C A 6) Indeed, but for the Respondent 's unfair labor practices,
the Respondent would have retained its majority See Western
Aluminum of Oregon, Inc, 144 NLRB 1191, Flomatic Corp , 147
NLRB 1304 , Northwest Engineering Company, 158 NLRB 624,
Tandy Warehouse Co , 158 NLRB 526
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 22.23 In addition to all the same shortcomings as
noted regarding the alleged notifications by Schafer and
Martin, this alleged notification occurred, if at all, at a
mere chance meeting between two persons unconnected
with the negotiations and, even more importantly, Heard
prefaced his remarks by requesting that the conversation
be kept "off the record." Respondent now claims this "off
the record" remark to constitute due and proper
notification to the Union. Respondent is definitely
scraping the bottom of the barrel.
If, as seems likely from Respondent's brief, Respondent
claims to have given due and proper notification to the
Union through Pittsburgh's Mayor Barr and
Redevelopment Board Member Ryan, those two
individuals would have been just as surprised as the Union
to discover that they were agents of Respondent for this
purpose.
Consequently, I have no hesitation in finding, as I here
do, that Respondent gave no notice of any kind to the
Union that it had plans to close the Neville Island plant or
to transfer its operations to another plant under serious
consideration.
In fact, the evidence proves that Respondent through
McGregor carefully and intentionally concealed such
plans not only from the Union but also from its own
negotiators, attorneys, and supervisors. Admittedly the
first information about the existence of the York plant was
given to Respondent's supervisors on the afternoon of
April 22 when Martin announced to them the existence of
the York plant while soliciting them to accept supervisory
positions there.24
Often companies tend to brag a bit when they expand.
Not the Respondent.
The facts prove, and I find, that at least by the latter
part of March 1965, if not much earlier , McGregor for
Respondent had under serious consideration the closing of
the Neville Island plant and the transfer of its operations
to another plant. McGregor's careful concealment of this
plan not only prevented Respondent's negotiators from
being able to give notification to the Union of such plan but
also shows that Respondent's negotiators could not have
been bargaining in good faith with the Union at anytime
after March 25. This secrecy also confirms the fact that
Respondent's motivation was discriminatory and not
economic. McGregor's plan was both to eliminate
Respondent's union employees and also to evade
Respondent's obligation under the Act to bargain with the
representative of those employees. I so find.
Hence, even under Respondent's theory of this case,
Respondent has failed and neglected to notify the
bargaining representative of its employees of its plan to
close the Neville Island plant and transfer its activities to
the York plant in violation of Section 8(a)(1), (3), and (5) of
the Act.
Respondent's failure to bargain in good faith on and
after March 25, even though unknown to the Union due to
Respondent's concealment of the York project, converted
the March 1 economic strike into an unfair labor practice
strike If the notification required, even under
Respondent's theory of the law applicable here, had been
given to the Union, it is more than possible that the parties
might well have reached an agreement satisfactory even to
this Respondent and hence the failure to give such
required notification has prolonged the strike of March 1
and thus converted it by late March from an economic to
an unfair labor practice strike.
The telegram of April 27, 1965, notifying the
employees-who remained employees under either theory
of the law because, even as economic strikers, they were
engaged in a current labor dispute and had not been
replaced, permanently or otherwise-of closing the
Neville Island plant "permanently" as of April 23
unilaterally changed the status of these striking employees
materially from that of striking employees to that of
dischargees thereby violating Section 8(a)(1) and (3). Up to
the date of that telegram the strikers had been exercising
their legal option of voluntarily withholding their services
from Respondent because of a current labor dispute The
telegram eliminated the option these striking employees
had been exercising. With the receipt of the telegram
there were thereafter no jobs from which the strikers could
voluntarily absent themselves They were fired and
unemployed As this discharge was also for discriminatory
reasons, Respondent violated Section 8(a)(1) and (3) of the
Act.
Respondent's Proposed Finding of Fact 223 states that
until May 9-13, 1965, it "was prepared to reconsider its
decision to close and relocate its Neville Island plant." If
Respondent were, in fact, "prepared to reconsider its
decision," it never communicated that willingness to the
Union. In fact the use of the word "permanently" in the
telegram of April 27 to the Union would appear to
foreclose the Respondent's alleged willingness.
Two other contentions made by Respondent here need
to be mentioned.
First Respondent claims that it was no longer required
to bargain with the Union because they had bargained to
an impasse-"on at least four occasions."25 This
argument flies right in the teeth of Schafer's denial at the
April 14 meeting that an impasse had been reached. The
facts further show that progress, albeit small, was being
made at each meeting . The only "impasse" which had
been reached was Respondent's unwillingness to bargain
in good faith.
Second the Respondent argues that Respondent was
relieved of its obligation to bargain because the picketing
was "illegal" as not in conformity with the State court
injunction . That this is not So26 see a case cited in oral
argument by Respondent N.L.R.B. v. E. L. Dell, Jr., tfa
Waycross Machine Shop, 283 F.2d 733 (C.A. 5). In this
regard it is also to be noted that Respondent here was not
in compliance with that injunctive order. it was not
bargaining in good faith as required.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, appearing in connection with the Respondent's
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.
23 Respondent 's brief appears to recognize the conflict between Martin and McGregor . solicited him to abandon the strike and
the testimony of Heard and Martin in suggesting that Heard made accept a supervisory position at York as early as April 16 at a
two trips, instead of just the trip with Martin , to the Riverboat surreptitiously held meeting with him at a suburban motel
Room that evening Heard's own testimony disproves this 25 See Respondent's Proposed Conclusion of Law 11
24 Actually if Respondent's witness Geeting can be believed, 16 N L R B v Sea-Land Service, 356 F 2d 955 (C A 1)
MAXWELL HOUSE
employment, and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees em-
ployed at our plant in San Angelo, Texas, exclusive
of office clerical employees, technical and pro-
fessional employees, guards and supervisors as
defined in the Act.
WE WILL offer to the following employees
immediate and full reinstatement and make them
whole for any loss of pay they may have suffered
because of the discrimination against them:
James Dukes Milton Frazier
Clarence Hutton Arthur Chappell
David L. Richardson Robert Rodriguez
Victor Barrera
WE WILL make whole each of the following named
employees for any loss of pay they may have suffered
by reason of the discrimination against them:
Candelario Asebedo Indalecio Herrera, Jr.
Ruben Montez Henry Rodriguez
Gilbert Flores Felix Gonzales
Jesus Herrera Emilio Montez
Gilbert Martinez Wille Zapata
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to join or assist a union , to bargain
collectively through representatives of their own
choosing, and to engage in any other concerted
activities for mutual aid or protection, or to refrain
from any or all such activities.
SAN ANGELO PACKING
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the employees, entitled to
reinstatement, if presently serving in the Armed Forces of
the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6th Floor
Meacham Building, 110 West Fifth Street, Fort Worth,
Texas 76102, Telephone Edison 5-4211, Ext. 2131.
851
Maxwell House Division, General Foods
Corporation and William W. Birch
Allied Food Workers District Union No. 103,
affiliated with Amalgamated Meat Cutters &
Butcher Workmen ' of North America,
AFL-CIO and William W . Birch. Cases
23-CA-2414 and 23-CB-695.
April 3, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA.
On December 5, 1966, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that the Respondent has not
engaged in any unfair labor practices as alleged in
the complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief. Briefs
were also filed by the Respondent Union and the
Respondent Employer.
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 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 the findings,'
conclusions, and recommendations of the Trial
Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
' In view of the disposition of this case, Member Fanning and
Member Zagoria do not deem it necessary to pass upon any
implication in the Trial Examiner's Decision that a breach of the
duty of fair representation, in itself, may constitute a violation of
Section 8 of the Act
Member Jenkins considers that the Trial Examiner correctly
stated the controlling legal principles herein Vaca v Sipes, 386
U S 171, Local Union No 12, United Rubber, Cork, Linoleum &
Plastics Workers (Business League of Gadsden), 150 NLRB 312,
enfd 368 F 2d 12 (CA 5, 1966)
295-269 0-69-55 163 NLRB No. 108