Texberry Container Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1975

217 N.L.R.B. 58 (N.L.R.B. 1975)

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texberry Container Corporation and Textile Workers
Union of America , AFL-CIO-CLC. Cases 23-
CA-5048, 23-CA-5053, and 23-CA-5055
March 24, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On September 16, 1974, Administrative Law Judge
David G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,'- and
conclusions of the Administrative Law Judge, except as
modified below.
We find, in agreement with the Administrative Law
Judge, that Respondent violated Section 8(a)(1) of the
Act by informing employees, in effect, that their hours
would be reduced if a union were selected. We do not,
however, agree with the Administrative Law Judge
that this is a case which was so lacking in serious
impact that we should withhold the issuance of a
remedial order. We regard as a serious violation of the
Act the Respondent's threatening its employees with
possible loss of benefits if they exercised rights guaran-
teed to them by Section 7 of the Act. Accordingly, we
find that it will effectuate the purposes of the Act to
issue, as provided below, our usual remedial order for
the violation found.
AMENDED CONCLUSIONS OF LAW
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Texberry
Container Corporation, Houston, Texas,_ its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that their hours of work
might be reduced if a union were selected.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the purposes of the Act:
(a) Post at its business office and meeting places
copies of the attached notice marked "Appendix."2
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly signed
by Respondent's representative, shall be posted by it I
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
(c) Sign and mail to the Regional Director for Re-
gion 23 sufficient copies of said notice, to be furnished
by him, for posting by Texberry Container Corpora-
tion, in places where notices to employees are cus-
tomarily posted.
IT IS FURTHER ORDERED that all allegations of the com-
plaint which charge Respondent with unfair labor
practices other than those found herein be, and the
same hereby are, dismissed.
1. Respondent is engaged in commerce within the
meaning of the Act.
2. Textile Workers Union of America, AFL-
CIO-CLC, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By informing employees that their hours of work
might be reduced if a union were selected, the Respond-
ent has engaged in unfair labor practices defined in
Section 8(a)(1) of the Act.
MEMBER KENNEDY, dissenting in part:
I agree with the conclusion of the Administrative
Law Judge that no useful purpose would be served by
the Board's issuing an order concerning this isolated
incident. American Federation of Musicians, Local 76,
AFL-CIO (Jimmy Wakely Show), 202 NLRB 620
(1973).
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil- 2 In the event that this Order is enforced by a Judgment of the United
ity unless the clear preponderance of all of the relevant evidence convinces States Court of Appeals, the words in the notice reading "Posted by Order
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 of the National Labor Relations Board" shall read "Posted Pursuant to a
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully Judgment of the United States Court of Appeals Enforcing an Order of the
examined the record and find no basis for reversing his findings National Labor Relations Board "
217 NLRB No. 18
TEXBERRY CONTAINER CORPORATION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees that their hours of
work might be reduced if they select a union.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection.
TEXBERRY CONTAINER CORPORATION
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This case
was heard at Houston, Texas, on July 23, 24, and 25,
1974,' based upon charges filed April 9, 17, and 19 and
complaint issued May 22, with an order consolidating cases.
The complaint alleges that Texberry Container Corporation,
called Respondent, violated Section 8(a)(1), (3), and (4) of the
Act by informing employees that should they select union
representation their hours of work would be reduced and the
plant, would close, by informing employees that Respondent
would discharge an employee for engaging in union activity,
by interrogating employees concerning union activities, and
by discharging employees Anna Berry Mosley, Johnnie De-
Vault, Alma Gene Waller, Melvin J. Davis, and Katherine
Cash, because they engaged in union or concerted activities,
and, in regard to Cash only, because she gave testimony
under the Act.
Upon the entire record in this case, including observation
of the witnesses, and upon consideration of briefs filed by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent , a corporation located in Houston , Texas, en-
gages in the manufacture and wholesale distribution of plastic
bottle. It annually purchases goods valued in excess of $50,-
000 for use in its business operations and receives these goods
directly from suppliers located outside the State of Texas. I
find, as Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. Textile Workers Union of America, AFL-CIO-CLC,
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
1 All dates and named months hereafter are in 1974, unless indicated
otherwise.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
59
In early 1974 the Union commenced organizing activities
among Respondent's hourly paid employees. Organization-
ally these employees primarily worked in the plastics depart-
ment,, decorating department, and warehouse department.
Components of the warehouse department were shipping and
receiving, rail dock, truck delivery, and will-call, this last
including a subdivision called cap department. On February
28, the Union filed a representation petition for an estimated
78 production and maintenance employees. Proceedings fol-
lowed and on Friday, Aprils, an election was conducted over
two voting periods between the Union, the intervening
United Papermakers and Paperworkers, and a ballot choice
of no union. During the overall organizing effort various
employees solicited signed union cards, spoke to coworkers
in support of the Union, and attended one or more of the
approximately five preelection meetings conducted by repre-
sentatives of the Union.
Mosley was hired February 19 to work in the plastics
department. She testified to signing a union card given her by
DeVault, discussing benefits of a union with several cowork-
ers of her department, attending two union meetings, making
a telephone call on or about March 27 in the presence of
Production Supervisor Paul Lytle during which she stated
within his hearing that she would be attending a union meet-
ing to which he made the exclamatory utterance "union
meeting" and speaking out loudly in the presence of Paul
Lytle to employees about to leave for a scheduled representa-
tion case hearing in late March that they should "vote for the
Union"' following which he told her she "better get to
work." Mosley was absent from March 29 through April 4,
after first informing supervison she would be off work to see
a dentist. She appeared prior to her 7 a.m. starting time of
April 5 but found her timecard pulled from the rack. Paul
Lytle advised her to wait in the department office for Plastics
Department Manager Bob Lytle. She did so and when he
appeared at approximately 9:30 a.m. she was informed of
being terminated for not calling in to explain her continued
absence. She recalls having a dentist's statement with her at
the time and offering this to Bob Lytle who rejected it saying
she could go as he didn't need her excuse.
DeVault was hired in August 1973 to work in the plastics
department. She testified to soliciting approximately 20
signed union cards from employees of the plastics depart-
ment, having many discussions with coworkers concerning
the Union and attending three union meetings. DeVault re-
called that on or about March 13 Paul Lytle observed her
with a union card discussing the Union with coworkers while
on breaktime, that on or about March 20 after she loudly
stated that employees about to leave for the representation
hearing should "stand up . . . for the Union" Bob Lytle
looked at her strangely and that around March 25, while on
breaktime with other employees who were talking as a group
with Union Representatives Anthony Herman and Chuck
Todd outside the plastics department area, Paul and Bob
2 I do not regard the discrepancy between these words and phraseology
contained in Mosley's investigatory affidavit significant for credibility pur-
poses.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lytle approached and nastily told the employees they had
"no business out there at all." Prior to April DeVault had
missed work periodically as a consequence of injury suffered
by her brother. After working April 1, she left Houston late
that evening by automobile accompanied by her mother and
sister, to transport her brother to his home city following a
medical checkup . She testified to experiencing car trouble
during this trip and being unable to return to work until the
morning of April 5. DeVault further testified that on the
morning of April 2, around 7 to 8 a.m., she attempted to
telephone the plant and report her absence , was unable to get
through at that time but did reach Paul Lytle by telephone
on April 4 and upon explaining her circumstances heard him
respond that it was "fine" but she should come into the office
first on Friday . Upon appearing the next morning she waited
with Mosley and upon arrival of Bob Lytle was informed of
being terminated because of her absence.
Mosley and DeVault then went to the office of Company
President Joseph Borden. They protested their discharges
and in the course of ensuing conversation DeVault recalls
Borden stating he was "downhearted" because certain em=
ployees were wearing union badges and that Cash would be
gotten "rid of" because he was sick and tired of her running
off at the mouth . Mosley testified that Borden expressed
being "very disappointed" when he saw a lot of "my friends
... wearing union buttons," that he had "the goods" on
Cash who talked a lot and "wouldn 't be around here too
much longer ," that he displayed a Bemis Company contract
of the Union saying it was not any good , and that he asked
for Mosley's, and inferentially DeVault's, inclinations about
the Union and whether Mosley specifically had gone to union
meetings . They then waited in Borden 's office until he osten-
sibly checked on whether other positions would be available
for them . He returned with no further information and sug-
gested they call him later . Eventually they received word
from Borden that no other positions were found . This episode
forms the basis for paragraph 7(c) and (d) of the complaint.
Waller was hired in November 1973 to work in the plastics
department . On March 19 she was transferred at her request
to the warehouse department for work primarily in the cap
subdivision of will-call. She testified to receiving union cards
from two employees (one of them Devault) and signing one,
attending three or four union meetings, and talking favorably
about the Union with other employees. She recalls a discus-
sion in late February with two admitted supervisors in which
she associated having a union with earning higher wages. On
the election day she wore a union button which elicited ob-
serving comment from her supervisor , Louis Garcia. Waller
testified that her duties in the cap department were to obtain,
pack, and weigh caps. She performed moderate lifting, as
heavier lifting was performed by coworker Henry Lister or
other available male employees . When she felt assistance was
needed she would request this of Garcia who sometimes ar-
ranged it..She occasionally operated the Towmoter to trans-
port products but believed that only some of the boxes han-
dled were too heavy to be picked up. On two occasions prior
to April 11, Waller informed Garcia she would have a doc-
tor's appointment that date . She anticipated returning to
work after the appointment but in fact did not do so and
instead telephoned Garcia around 4 p . m. to state the doctor
had been late and ask whether he still wanted her to come in
at that hour . Instead , Garcia told her she could no longer
work for Respondent because the work appeared to be too
hard . Waller then telephoned Borden to protest the termina-
tion but nothing came of the call.
Davis was hired in April 1973 and worked successively in
the will-call, rail dock and shipping and receiving subdepart-
ments. In February Davis received authorization cards from
Herman and solicited interest in the Union among his co-
workers. He attended all union meetings held during the span
early February through April 4 and on the election day wore
a union button that was observed by company official George
Kassos. At the second union meeting , held at the South Crest
Fish Market near the plant, Davis observed Supervisor An-
thony Perez and Warehouse Superintendent John Cardenas
looking in the direction of this restaurant as they passed by
or parked in their automobiles . On March 28 Davis was
sitting in the car of union representatives immediately adjoin-
ing plant premises and was observed in this activity by Kassos
and John Cardenas. The following day while conversing with
Herman on the side street adjoining the plant Borden pulled
up in his automobile to a point about 15 feet away and
glanced in Davis ' direction . Immediately prior to his termina-
tion Davis performed receiving duties unloading, stocking,
and distributing incoming merchandise . On April 16 his
supervisor, Richard Perez, observed Herman and other union
representatives distributing leaflets near Respondent's prem-
ises and asked Davis if he was "happy that my boys were out
there" to which Davis simply replied "no." Around 4 p.m.
that day Perez assigned Davis to move certain pallets in the
receiving department and upon completion of this task then
assigned him to load a Red Owl truck. Davis testified to
asking if that wasn't the shipping department 's duty and
Perez told him to "shut up and do what you're told." Davis
proceeded to load the truck and immediately upon comple-
tion of this task was called into the office to be asked by John
Cardenas what the trouble was between him and Perez. Davis
answered there was no trouble and in response to a question
stated he did not "curse" at Perez. Davis believed that co-
workers Roy Griffin and Cleveland Guidry were favorable
witnesses to the incident. He provided John Cardenas their
names but they were not questioned as Cardenas contented
himself to inquire of shipping department leadwoman Sandy
McCoy what had happened . McCoy testified she first ob-
served Davis and Perez conversing while she was inside the
shipping department office and that moments later, while
outside but immediately adjoining it, she sensed they were
then engaged in verbal disagreement with Davis shaking his
finger and giving the appearance of being "mad." She was
subsequently questioned by John Cardenas and described this
much emphasizing that while she had not heard words actu-
ally spoken it looked like Davis had lost his temper. McCoy
also recalls later informing Griffin and Guidry what she had
related to Cardenas but denies adding that he prevented her
from telling any further significant facts. Griffin testified that
after the lunchbreak on April 16 he and Guidry were packing
products for shipment . He overheard a conversation between
McCoy and the driver of a McLean Freight Lines truck
concerning a paperwork problem. McCoy attended to this
problem at and around the McLean truck as it stood parked
at the shipping area on the left side of the warehouse office.
As this was occurring , Perez told Davis to perform certain
TEXBERRY CONTAINER CORPORATION
loading of the truck which was done. Upon completion by
Davis he walked back past Griffin and Guidry remarking,
"don't make me late" which was taken as a joke remark
incidental to the nearness of quitting time. Griffin testified
further that Perez, upon apparently hearing this, spoke to
Davis asking what he meant by that or didn't he like that (the
assignment). Without further exchange Perez then left re-
turning a few minutes later with John Cardenas. Cardenas
loudly asked Davis what the problem was but did not-enter-
tain an answer, instead stepping off to the side with Perez.
The two then spoke briefly to McCoy who later told Griffin
that she was not given a chance to explain any opinion she
had concerning Davis' attitude toward Perez. Guidry testi-
fied that on Davis' last day of employment he (Davis) was
told by Perez to load a truck. Upon completing this assign-
ment a remark passed between Davis, Guidry, and Griffin
that was "slang," .. jive" or joking in nature concerning being
made late. Shortly thereafter John Cardenas appeared and
seemed to question McCoy, who later informed Guidry she
had attributed a nasty attitude towards Perez on Davis' part
but was not given a chance to explain whether the feeling was
mutual between those two.
Cash was hired February 26 as a trimmer-packer in the
plastics department. She testified to attending three union
meetings and encouraging coworkers to sign union authoriza-
tion cards as she had done. Cash served as union observer at
the morning voting session on April 5. At a meeting con-
ducted April 3 by Borden, Cash questioned whether his state-
ment of employee benefits being negotiable anew with the
Union was accurate as she had been informed otherwise upon
inquiry to an office of the National Labor Relations Board.
Borden disagreed with this understanding as it came from her
as part of his general employee audience, stating such advice
was idiotic. Cash was aware of the terminations of Mosley,
DeVault, Waller, and Davis as they occurred over the period
April 5 to April 16. She stated her concern to various cowork-
ers that' Borden was firing black people and that in her opin-
ion this "seemed to be a pattern" as it looked like Borden
"might be firing all the blacks here." On April 17 she was
summoned by Paul Lytle to the department office where
Borden told her she was placed on suspension for spreading
rumors.
The discharges of Mosley and DeVault were each effected
by Bob Lytle. He testified that when neither had appeared for
work or given notification3 concerning their absence by
Thursday, April 4, the day of the week on which new time-
cards were placed, he considered them routinely terminated
subject to the exception of a subsequently received extraordi-
nary excuse for absence with nonnotification.'
3 DeVault testified that about a week before her termination Joseph
Voytko became her new immediate supervisor Bettye Roberson, DeVault's
sister and coworker in the plastics department, testified that she returned
to the city by bus from the trip that originated in Houston at 11 30 p.m,
April 1. Upon punching in the morning of Wednesday, April 3, she recalls
notifying new Supervisor Voytko of events, that DeVault had to stay with
the disabled car and that Voytko said "O.K." Voytko did not testify and
there is no evidence this information was transmitted to either Lytle.
a Bob Lytle testified that his practice concerning an absent employee who
fails to call in is to pull the timecard after the second day, considering the
employee conditionally discharged.,Should the employee eventually appear
he entertains whatever excuse is given and might on rare occasion rescind
the termination for a highly justifiable reason for absence without notifica-
tion. He did not recall any instance of deviation from this general policy.
61
Bob Lytle further testified that he was involved with mat-
ters concerning the morning portion of the representation
election on April 5 and was unable to see Mosley and Devault
until about 9 a.m. At this time he informed each they were
terminated. He denied that Mosley offered a dentist's state-
ment or that any notification concerning DeVault's absence
from work was received after April 1.
'Louis Garcia effected the discharge of Waller with the
approval of John Cardenas. Garcia had complained to Car-
denas of Waller's apparent inability to perform heavy han-
dling and stacking in the cap department. Garcia testified
that on two or three occasions Waller complained about work
being too heavy, to which he would tell her to leave it undone.
During the several weeks she worked under his supervision,
he periodically complimented her, generally considering she
was "nice" and "obeyed" him. Nevertheless, approximately
a week before her termination he "had it in mind" to dis-
charge her. Garcia testified to doing so when Waller tele-
phoned late in the day on April 11. He told her then simply
to remain away as she was relieved of duties because the job
was getting too heavy.
John Cardenas effected the discharge ofDavis after speak-
ing with Perez, Davis, and McCoy later in the afternoon of
April 16. Cardenas testified he was influenced by an incident
approximately 3 weeks earlier in which he understood Davis
had seemingly resisted orders of supervision.' Perez had
gone to ,Cardenas to report that Davis had resisted an order
to load a truck, had intimated Perez could be terminated as
occurred recently with another supervisor and had mumbled
loudly at the time of receiving the loading assignment in a
manner that seemed to be cursing.6
Borden effected the suspension of Cash while directing an
investigation of reports reaching him that she had stated
Respondent was appearing to deliberately fire only black
employees. The information originated with advice given
John Cardenas by employee Rosemary Cardenas which the
former relayed to Borden. The investigation included an as-
signment to Bob Lytle to confer discreetly with several female
employees believed to have overheard such remarks by Cash.
Bob Lytle questioned Rosemary Cardenas, Agnes Pace, and
Brenda Smith, each of whom told him that Cash made a
statement essentially to the effect that Respondent was "fir-
ing all the blacks." He also later questioned employee Elaine
Walker upon her return from vacation on or about April 22
and obtained the same information.'
Consideration of this case must occur in a framework
5 Perez testified to the earlier incident dating it on March 16 at which time
he gave Davis an assignment to sweep a warehouse section and was met with
temperamental disagreement . It apparently occurred 1 week later as Davis'
personnel record contains an entry for "talking back to supervisor" which
is dated March 23. I do not regard the discrepancy in dates significant for
credibility purposes.
6 Davis testified that he had once complained to Cardenas about Perez
calling him "nigger." Cardenas denies receiving such a complaint.
' Bob Lytle testified he did not question employees of his department
other than those named for investigative followup even though he had no
recollection why he specifically contacted Elaine Walker I conclude Elaine
Walker was among those named by Borden for contact since her knowledge
on the subject apparently became available to Respondent 's supervisors
through leadwoman Beverly Antoine Borden testified he made no further
effort to inform Cash of her employment status since the charge in Case
23-CA-5055 expressly concerned the subject , alleging a suspension "and-
/or" termination.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
larger than the Union's organizing campaign. From and after
late February; when a representation petition was filed, the
fact of substantial employee support for such an objective was
openly known. This event had little bearing on business oper-
ations including purchasing, production, sales, and distribu-
tion, all of which would command the continued attention of
top management and department heads. The essential issue
is what, if any, effect it had on the further important function
of employee relations as manifested by Respondent's dealings
with its employees. An evaluation of this issue turns primarily
on the testimony presented, and secondarily on deductive
understandings flowing from the comprehensive personnel
records covering an appropriate 1-year period.
General Counsel's case rests on the doctrine of pretextual
discharges occurring against a general background of claimed
knowledge that certain employees favored the Union, the
Respondent harbored an impermissible degree of opposition
to the Union, and that specific acts in violation of Section
8(a)(1) are shown. As to the general tenor of this case, I
cannot accept the contention Respondent was hostile toward
the Union or exhibited animus as those terms are germane.
During the critical months of March and April, conversa-
tions between employees relative to the Union and attendant
solicitation of authorization cards were essentially ignored by
Respondent's supervisors. To the extent that employees min-
gled openly with union representatives at and near plant
premises and otherwise casually voiced support for union
purposes, this reflects a lack of concern for retaliatory em-
ployment action. Respondent had experienced organizing
campaigns before and, in this instance, mounted traditional
opposition specifically including a mass meeting of employees
on April 3 to strongly express opposition toward unioniza-
tion. Occasionally, specific flaws were attacked as concerning
a supposedly assured wage increase from unionization and a
specific contractual provision in effect between another em-
ployer and the Union. Overall, however, supervisors dis-
played little interest in specific employee activities! On one
occasion, employees congregating around union representa-
tives were directed to return to work and I accept that Super-
visors Anthony Perez and John Cardenas observed an abnor-
mally- large number of employees at a restaurant in what,
under the circumstances, would reasonably lead such super-
visors to conclude was a union meeting. On the other hand
this meeting place was near the plant in a general commercial
district and General Counsel makes no claim unlawful sur-
veillance was occurring.
Each of the discharges occurred as a result of claimed
employee misconduct. The profile available for overall per-
sonnel records (G. C. Exh. 2) is one of nonuniformity in
disciplinary action and strongly suggestive of individual
treatment for individual cases. In some instances employees
were discharged summarily while in other instances extreme
leniency was shown. Considering Respondent's size, the fact
that both the plastics department and warehouse operations
involved unskilled or slightly skilled occupations with high
employee turnover and the absence of any strongly structured
personnel management system, I conclude and believe that
disparity shown from the records is industrially typical.
8 Borden admitted having seen many employees wearing Union buttons
(Tr 526)
Multiple or closely timed discharges were not unprece-
dented. On June 21, 1973, employees Lupe Longoria and
Carlos Reyes were each terminated for "poor job perform-
ance." Gary Tucker was terminated September 25, 1973, and
Richard Castillo was terminated October 3, 1973, for re-
corded reasons of "poor performance and attitude" and "un-
satisfactory job performance," respectively. Operating super-
visors have more to do in the course of a working day than
show concern for whether personnel records are repositories
for each significant event or communication involving em-
ployees of their department. The records here in evidence
have a ring of genuineness that picks up well before the union
organizing commenced, continues through the critical
March-April months and, although it might be argued as
self-serving, extends even into more recent times. There are
numerous instances of recorded discharge based on job per-
formance, attitude, apparent theft, drunkenness, and other
job derelictions.
The matter of employee attendance, an important branch
of this case, cannot be approached without drawing attention
to the components of this subject. Attendance can become a
problem from the standpoint of whether sporadic, chronic, or
extensive. The subsidiary question can be whether notice was
given before an absence from work occurred or whether an
absence from, work exceeded the scope of such notice as was
given. In either case, it is typically true that justification in
terms of personal or unavoidable circumstances will be con-
sidered by most supervisors.
Respondent contends it has rule or policy whereby em-
ployees subject themselves to discharge for being absent from
work 2 consecutive days without notice.9 Bob Lytle further
refined his description of the rule by, tying it in with Respon-
dent's Thursday through Wednesday workweek. He testified
to considering employees ordinarily conditionally terminated
upon the expiration of their second day of unreported absence
from work, claiming that as a matter of convenience this was
often carried into Thursdays since that was the day new
weekly timecards were placed in the rack.
For tentative reasoning purposes it is well to look at what
in`fact occurred relative to employees terminated for reasons
based on attendance over the representative 1-year span that
is in evidence. It is first of all apparent that such cases fall into
three broad categories. One is-the instance of employees being
considered conditionally terminated after the second day of
unreported absence; another is where such conditional termi-
nation was associated with the date following the third day
of unreported absence, and a final instance is simply special
handling totally foreign to the claimed "rule" or policy."
Furthermore, a pattern is shown whereby a 3-day rule was
used more typically in 1973,10 while a 2-day rule was, as
9 Borden described it so, while John Cardenas and Bob Lytle, each of
them dealing on a more or less daily basis with the subject, describe it as
"usually" and "generally" the case, respectively . Roberson understood she
was to report if off work; DeVault and Cash each understood from cowork-
ers that they should call in within the third day of absence, and McCoy was
unaware of any rule on the subject.
10 In 1973, and respecting only employees discharged for recorded reason
associated with failure to report for work, the effective date entered was the
fourth day of unreported absence for Louis Munoz, Albesa Pena, Joseph
Cole, Wilbert Kinnerson, Judy McKenzie, Adela Gonzales, Abe Johnson,
Ronald Sepolio, and Joseph Harmon (Names here and in footnote following
are merely illustrative on the point-not a complete listing).
TEXBERRY CONTAINER CORPORATION
Respondent contends, used more typically during 1974.11
Another proper area for examination is whether, as
claimed by Bob Lytle, Thursdays were in fact chosen as the
personnel record date of conditional termination . Of the 16
employees terminated from the plastics department during
the last half of 1973 for failure to report to work , 12 were
discharged on a Thursday . Arithmetically , this means that
Thursday was the chosen date three times as often as for all
other weekdays combined . Of the 19 employees terminated
from the plastics department during 1974 (through May 31)
for failure to report to work , the personnel record date of
conditional termination was on a Thursday in eight instances.
While a significantly lower ratio of Thursday to other week-
days exists for 1974 as compared to 1973, the essential thrust
of records in this regard substantiates Respondent 's general
claim that supervisors at least tended to follow an absentee-
ism policy . 12 Although the fairness of not providing full
communication to employees might be questioned, I attach
little significance to the limited understanding of such policy
existing among employees . Of greater importance is the fact
that terminations for failure to report for work, or the synon-
ymous absence without notice, were commonplace at all
times.
The tone of Respondent 's general employee relations and
its form of reaction to the Union 's organizing compaign is
necessarily related to allegations of the complaint that invoke
Section 8(a)(1). Respecting paragraph 7(a) and (b) of the
complaint , Guidry testified that at a time around late Febru-
ary or March he was approached by Warehouse Supervisor
Joe Cardenas and told that if a union got in the plant Borden
would close it down or only permit employees to work until
2 p.m. Guidry testified further that he only smiled in response
to the statement -but said nothing . Joe Cardenas testified that
while the organizing campaign was underway employees un-
der him asked concerning what hours of work would be if the
Union won the election . He recalls understanding that "they
would -cut the hours or something like that" and telling em-
ployees that while he "didn 't know," they (hours of work)
"might be raised tip" or "might be cut ." He testified further
that "nobody" had told him hours would be cut and that he
never stated the plant would close should the Union win the
election . Of the five persons whose testimony concerns these
allegations , I discredit Guidry, Mosley, and DeVault. Guidry
was a highly suggestible witness who displayed a confused,
unimpressive recollection . Testimony of Mosley and DeVault
was mutually contradictory in part and generally implausi-
ble, but particularly so as to their conversation with Borden
in his office the morning of April 5. I am persuaded that any
matters relating to the Union that were discussed in that
conversation arose from injection of the subject by Mosley
and DeVault as freshly discharged employees and that re-
sponses made by 'Borden were of a neutral conversational
nature devoid of the threatening or interrogative nature that
11 In 1974 , and respecting only employees discharge for recorded reason
associated with failure' to report for work (exclusive of Mosley's and De-
Vault's cases) the effective date entered was the third day of unreported
absence-for Walter Metcalf, Sam Carter, Darlene Scott, Erlene Ray, Mary
Cuellar, and Marla Bordelon.
12 The presence of written policies concerning safety, telephone usage,
holidays, and leave of absence does not negate existence of a less formal
policy for employee attendance.
63
has been ascribed . In summary of this point, I credit his
denial of revealing an intention to discharge Cash" or of
questioning Mosley or DeVault concerning their own union
activities . There remains the testimony of Joe Cardenas as to
which Respondent argues "no violation " has been established
since he ". . . advised them [employees under : his
supervision] that he did not know what effects the Union's
organizing of the Company would have on the hours of
work." Upon close reading, this is not the thrust of Joe Car-
denas' testimony . On the contrary, alluding to inquiries from
employees "that worked under" him, he testified that al-
though "nobody" told him they thought hours at work would
be reduced he nevertheless "... told them I didn't know,
they [hours] might be raised up or it , might be cut , I didn't
know." I believe this is an impermissible posture for this
supervisor to have left the subject since for no particular
reason that Joe Cardenas himself could assign he deliberately
erected the possibility of reduced hours of work as a potential
consequence of unionization . The "didn 't know" qualifica-
tion lessens the ominousness of the threat as a matter of
ordinary discourse , but not to such a degree that the utter-
ance may be entirely excused . 14 From this I conclude that
evidence as a whole supports the allegation in paragraph 7(b)
of the complaint . The remaining allegations of paragraph 7
fail to be established as a matter of substantial evidence.
The discharges of Mosley and DeVault are necessarily in-
terrelated for purposes of evaluation and reasoning . If pretex-
tual in nature, it means Respondent applied its claimed ab-
senteeism policy artificially and with deliberate unlawful
design to rid itself of both individuals . If not pretextual, it
means they were each caught up in the rather high attrition
rate of both the plastics and warehouse department where
little toleration of 2-to-3 day unreported absence was shown.
On the initial question of whether Respondent could even
have possessed discriminatory intent toward Mosley and De-
Vault, I am satisfied it sensed each to be a union adherent
from their unconcealed conversations with coworkers and
union representatives . Of greater significance , however, is the
fact that no evidence is present demonstrating the type of
animus as to make the discharges highly suspect . Mosley's
case is particularly weak as there was no word from her for
a period of 4 consecutive days."
DeVault 's case is complicated by her testimony of tele-
13 It defies belief that Borden would remark to having "the goods" on
Cash at`the point in time of April 5 as her claimed rumor spreading was
based on an originating event of that very date , let alone allowing for the
additional days taken up with Respondent 's investigation
14 While Guidry's testimony does tend to dovetail with my conclusion,
I adhere to discrediting his recollection in this regard He was not under the
supervision of Joe Cardenas and although the two would speak regularly, I
am convinced Guidry heard of Cardenas' remarks from others and is not
testifying to a matter of his own personal knowledge. The factual finding is,
therefore , premised on the testimony of Joe Cardenas alone
15 I discredit her testimony that she tendered a dentist 's statement to the
Lytles on April 5. As stated , her testimony lacks veracity and no reason was
advanced why even the identity of the dentist was not shown, let alone
existence of an excuse prepared by him for Mosley's use at that point in
time Further , General Counsel erroneously argues that during 1974 Agnes
M. Pace "is the only probationary employee other than Mosley who was
dropped from the payroll for lack of attendance " Contrarily such occurred
with regard to Ruth Rizo, Lois Brantley, and Julian Michael Clary Addi-
tionally the 2 week extension of probation for Pace (while not for Mosley)
had precedence nearly a year earlier when the probationary period of David
Kirkpatrick was similarly extended.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phoning Paul Lytle on April 4, and by uncontradicted tes-
timony of Roberson that she made a report of absence on
DeVault's behalf to Voytko the morning of April 3. As an
admitted agent of Respondent, this information must be im-
puted to its supervisory hierarchy; however, a neutralizing
effect exists from her precise testimony of estimating De-
Vault's return to work on Thursday "if she got the car
fixed." 16 It does not profit General Counsel' to prove Re-
spondent was harsh or abrupt with DeVault. On March 22
she had received a recorded warning for "goofs off and there
were ample prior instances where Respondent had ter-
minated employees for mixed reasons based on absenteeism
and job performance or attitude.17
General Counsel further argues the circumstances of dis-
charging Mosley -and DeVault were manipulated to exclude
them as voters in the representation election occurring that
morning. I find no merit to this contention, noting an after-
noon voting period was also available to them. No basis exists
to conclude that either were treated in an essentially different
manner from the frequent terminations for this most common
of reasons.'$
Waller transferred into the will-call subdepartment at her
own request during March." At a time no later than April
5, Respondent had awareness of Waller's support for the
Union through her wearing of a button. The same was true,
however, of will-call employees Godfrey and Lister. Tes-
timony identified Lister as available for heavier tasks. His
personnel record shows sustaining occupational back injury
on May 2, an event lending credence to Respondent's asser-
tion that physical strength was necessary in handling caps.
The composite of testimony by Waller, Godfrey, and Garcia
is to the effect that in this small operation Waller, more than
anyone, was unable to physically perform tasks required in
terms of lifting and handling. Garcia is a minor supervisor of
crudely simple outlook, including a willingness to compli-
ment Waller on her cooperative attitude without abandoning
16 Gratuitous hearsay associated with this testimony was objected to
successfully. Without further elaboration on this exchange between Rober-
son and Voytko, in which he responded "o k." to the reason given, I do not
believe Bob Lytle, as Respondent's chief actor in this regard, was foreclosed
from this established practice of considering overall circumstances upon
reappearance of an absent employee. DeVault's failure to appear for work
on Thursday, therefore, reasonably solidified Bob Lytle's decision to apply
the "failure to report to work" principle and to terminate her on the condi-
tionally effective date of April 4.
17 I do not feel it is reasonable to expect the Respondent's supervisors
would write down each and every consideration in their mind while making
an ostensibly routine discharge. DeVault's reprimand was recent and rea-
sonably within the mind of Bob Lytle as he had recorded it. Employee Angie
Martinez was reprimanded similarly on the same date. An example of termi-
nation for failure to call in when absent, coupled with poor job performance,
is that of Michael Standifer on November 2, 1973.
18 General Counsel argues that use of the notation "terminated" is sus-
pect Contrarily it was a term randomly chosen by Bob Lytle to record
absenteeism discharges of Jose Cano and Larry Rodrigues in 1973 (also
Robert Ragan and Stella Garza in 1974)
19 Her personnel record shows an hourly rate increase to $2.25 effective
March 21. Henry Lister, also employed in will-call (specifically as a "cap
man" since March 5), received a similar wage increase that same date. I
attach no significance to the fact that Waller received this pay increase 3
weeks prior to her termination , as the assigned reason was based on claimed
failure to perform duties adequately over the subsequent span. Relative to
the discharge itself, I also attach no significance to employee Godfrey's
testimony that Garcia stated that he would deduct pay from Waller for
failing to return to work a portion of the day on April 11.
dismay at her limited abilities. I am satisfied that this dismay
translated into complaints-to John Cardenas, resolved by a
joint decision to terminate Waller. Her case does not differ
from terminations by Respondent generally and is not shown
to have been associated with her limited support of the
Union. Unlawful motivation toward her is not shown with
the testimony of her conversation with Supervisors Cortez
and Mahoney presenting nothing more than privileged ex-
pression of views by them.
Davis' discharge must be decided on the basis of whether
a particular incident constituted a last straw with Respond-
ent, or was simply seized upon as a pretext to rid itself of an
employee known to have favored the Union. As to the inci-
dent itself, I discredit the testimony of both Griffin and
Guidry; the former on grounds he was not a favorably im-
pressive witness and was self-contradictory, and the latter on
stronger grounds that his testimony, as a whole, was highly
implausible. I credit McCoy to the extent she observed Davis
acting as though he were mad, and I credit Perez to the extent
Davis responded to a loading assignment in temperamental
manner. Actually Davis' own testimony, taken in conjunc-
tion with his employment record, suffices to provide Re-
spondent sufficient reason to discharge absent evidence of
unlawful motivation. The response "isn't that the shipping
department's duties?" was too perilous an utterance for one
formally warned December 7, 1973 ("bad conduct"), January
24, when Garcia complained he "doesn't pay attention," and
March 23, for "talking back to supervisor" with a notation
of record that should it happen "again" his employment
would be terminated. There is no indication Respondent
acted without ordinary business justification in Davis' in-
stance. It is one thing to jest with supervision but quite
another to resist orders to the point of management exaspera-
tion. There is ample showing that others have been dealt with
sternly for similar conduct.20
The case of Cash involves the discharge of the designated
union election observer shortly after so functioning. The close
scrutiny such action ordinarily involves fails to reveal evi-
dence of discrimination in this regard. Cash was a probation-
ary employee at the time and contrary-to General Counsel's
characterization of her utterances as "casual comments,"
they were, in fact, by her own admission , pointedly
accusatory.21 Respondent's action concerning Cash must be
viewed in the total context of events attributable to her re-
marks. In this regard, it is established that several employees
20 Leon Adams was terminated May 17 for "hollering and talking back
to supervision" against a disciplinary record background of several warnings
extending over the year and one half of his employment Keith Butler was
terminated June 6 over the signature of Richard Perez who recorded defici-
encies including "doesn't cooperate with supervisor." Although Davis had
an entire year of employment with Respondent there is no reason to dis-
believe he lost the original satisfactory characteristics of his early months
and, following an attempt at rehabilitation, was terminated for a precipitat-
ing and justifiable reason His situation closely resembles that of employee
James Johnson, who had uneventful employment from May 23, 1973, but
was subjected to two recorded reprimands in early 1974 followed by termi-
nation upon complaint of his immediate supervisor on February 26
21 To say that it "looks like" Respondent was firing all black employees
is by common vernacular a definitive opinion to that effect, reasonably
expected to stimulate such further interchanges from which rumors are
born. More significantly, the stated opinion that a flurry of black employee
terminations "seemed to be a pattern" unwittingly invoked a core concept
of statutory fair employment protection. (42 U S C. § 2000e - 6(a))
TEXBERRY CONTAINER CORPORATION
were specifically aware of the remarks" and they had in-
vidiously spread to the extent that a group of black employees
sought reassurances. At the moment John Cardenas con-
veyed his report of Cash's remarks to Borden, a serious prob-
lem was suddenly thrust up for any ordinarily prudent man-
agement of a factory operation having over 50-percent
employees of the group to which such rumor concerned.'
Cash's prompt suspension upon initial verification of facts
was a reasonable step. The failure to further specify her em-
ployment status is insignificant since a charge on her behalf
was promptly filed and served. It is specious to analogize this
rumor to an official protected complaint of employment
discrimination." A final point lending authenticity to Re-
spondent's action concerning Cash is a notation on the per-
sonnel record of Shednck Williams, an employee hired May
8, 1973, and terminated July 20, 1973, by Bob Lytle for
failure to report for work. On this record an entry dated June
6, 1973, apparently made by John Cardenas , states:
Got complaint about Shedrick's job performance and a
comment he made about not wanting a black man telling
him what to do. He denied all. This type of attitude
won't be tolerated again.
Overall, I find that Respondent reacted to the organizing
campaign essentially with a "business as usual" posture.
Many employees whose identification with the Union was
equal to those here in litigation have remained employed
22 I credit Elaine Walker's testimony concerning what she heard Cash say
on the subject, and further credit Cash's testimony that on April 5, the day
of the election in which she served as union observer, she spent her lunch
hour in the automobile of Herman Accordingly, as possible from Walker's
testimony, the time at which she overheard this was the afternoon break of
April 5
23 Formal allegations on this subject are made under penalty of the Crimi-
nal Code. 42 U.S.C § 2000e - 5(b); 29 CFR 1601.8.
65
without incident. High attrition, including many termina-
tions, are common as to Respondent's work force and it is
even shown that Supervisor Richard Alcala was discharged
April 9 after being warned concerning interest in his work
and attendance. I find Mosley, DeVault, Waller, Davis, and
Cash were each discharged for cause without a showing by
substantial evidence that considerations of their known inter-
est in, and support for, the Union were involved. To hold
otherwise on the record of this case would simply insulate
union adherents from discharge, a notion that has never been
the law. The 8(a)(4) allegation concerning Cash, based on her
telephone call to an NLRB Regional office and dialogue with
Borden on the point, is utterly without merit.
CONCLUSIONS OF LAw
1. Respondent, by informing employees their hours of
work might be reduced if a union were selected as collective-
bargaining representative, has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
2. Respondent has not violated the Act in any respect other
than that specifically found.
REMEDY
The utterance of Joe Cardenas was equivocal in nature and
although of coercive effect has not been shown to represent
Respondent 's actual intention . It is speculative as to how
many employees heard the remark and I see no useful pur-
pose being served by remedial action now concerning this
isolated incident. Accordingly, I decline to recommend the
posting of a notice. Cf. Middletown Manufacturing Company,
Inc., 141 NLRB 234 (1963); Howell Refining Co., 163 NLRB
18 (1967).
[Recommended Order for dismissal omitted from
publication.]