The Borden Co.

National Labor Relations Board - Board Decisions

Nov 22, 1966

161 N.L.R.B. 1271 (N.L.R.B. 1966)

THE BORDEN COMPANY 1271
Intervenor has been applied to the employees at the Barrio Sabanetas
housing project.2
In all the circumstances of this case, especially in view of the fact
that the contract by its terms covers all construction projects of the
Employer in Puerto Rico, that all such projects are centrally admin-
istered and controlled, that there is interchange of employees be-
tween the different projects, and that the contract has been applied
to the employees there, we find that the employees at the new housing
project at Barrio Sabanetas are a part of the unit covered by the
existing contract.3 Accordingly, the requested unit at the Barrio
Sabanetas project is inappropriate, and for this reason we shall dis-
miss the petition.
[The Board dismissed the petition.]
'This conclusion is based upon our interpretation of the record as a whole , especially
the terms of the contract which indicate that benefits are applicable to all employees we
view as equivocal the isolated and unexplained statement of one witness that employees
"start to enjoy the benefits of the collective-bargaining agreement as soon as they sign
the check off." Moreover , it is noted that the Employer has applied the existing contract
to other new projects as they were established An example is the Ponce residential lots
project, to which the contract has been applied since June 1965 , the date when that project
was begun.
3 In Raymond Construction Company of Puerto Rico , 126 NLRB 268 , where a separate
project unit was found appropriate , there was no showing, as in this case , of employee
interchange ; and it affirmatively appeared , moreover , that at the time the petition was
filed as well as for a substantial preceding period , the recognition accorded the intervening
union did not encompass the employees at the specific project petitioned for without
determining the extent to which we might otherwise adhere to Raymond as controlling
precedent , we hold that the foregoing factual differences are such as to render Raymond
inapplicable to the instant case.
The Borden Company and Local 657, General Drivers and Helpers
Union , affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Case 3-
CA-2141. November 22, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Laurence A. Knapp issued the
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom, and take
certain affirmative action as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in other unfair labor practices alleged in the amended complaint and
recommended dismissal of those allegations. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision, and a support-
ing brief. Neither the General Counsel nor the Charging Party filed
exceptions in this case.
161 NLRB No. 114.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, with the following modifications.
We agree with the Trial Examiner's conclusion that in discharging
employee Flores on August 20, 1965, the Respondent was motivated
in substantial part by a purpose to discourage union membership and
to discriminate against Flores because he had given testimony under
the Act. Flores was hired as a regular employee in the ice cream
department in May 1964, and was kept on at the time of the custom-
ary annual drop in ice cream production at the end of the summer
of 1964. However, the. Respondent learned that Flores had become an
active union leader. Thereafter, Supervisor Loessberg berated Flores
for testifying in support of the Union at a Board hearing in a rep-
resentation case involving the Respondent. On August 9, when Flores
asked Department Superintendent Tucker for leave to testify in
support of the Union's predecessor at another Board hearing, in a
complaint case against the Respondent (Case 23-CA-2011), Tucker
asked him why he was again being a "bad boy" by testifying against
the Respondent. Flores nevertheless testified in that case, and 11 days
later was discharged (along with a temporary employee, not here
involved), allegedly because of declining ice cream production.
As the Trial Examiner found, however, Dolores Hoyos, a regular
employee in the milk department, had been transferred to the ice
cream department only for the summer months, but the Respondent
did not follow its customary practice of retransferring her rather
than reducing its force of regular employees in the ice cream depart-
ment. Instead, it discharged regular employee Flores. Moreover, as
the Trial Examiner also found, instead of declining, the Respondent's
ice cream production was actually greater during the months follow-
ing Flores' discharge than in the corresponding months of the year
before, when Flores was kept on.
The evidence set forth above, not further explained nor rebutted
by the Respondent, and occurring at the time the Respondent was
engaged in widespread unfair labor practices, as found by the Board
in Case 23-CA-2011,1 persuades us, and we find, that the Respond-
ent's discharge of Flores was violative of Section 8(a) (1), (3), and
1157 NLRB 1100.
THE BORDEN COMPANY 1273
(4) of the Act. We agree with the Trial Exathiner that this finding
is not overcome by the Respondent's subsequent attempts to ascertain
if Flores was interested in applying for employment outside the unit
being organized by the Union.
[The Board adopted the Trial Examiner's Recommended Order.] 2
2 The Appendix to the Trial Examiner ' s Decision is modified by adding the following im-
mediately above the line at the bottom:
NOTE.-We will notify the above -named employee if presently serving in the Armed
Forces of the United States of his 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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Trial Examiner Laurence A. Knapp heard this case in San Antonio , Texas, on
January 26-28, and March 2-3, 1966, following pretrial procedures in compliance
with the Act.' Following the hearing , briefs were filed with me both by counsel
for the General Counsel and counsel for Respondent 2
Upon the entire record 3 in this proceeding , including my observation of the
demeanor of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT ; THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that Respondent, a New
Jersey corporation , is engaged at San Antonio , Texas, in the processing and the
wholesale and retail distribution of milk, milk products , and ice cream ; and that
in the 12 months preceding issuance of the complaint Respondent , at its San
Antonio place of business , purchased and received directly from points located
outside the State of Texas milk and other products, goods, and materials having
a value in excess of $50,000 and sold products and goods having a value in excess
of $500 ,000. Respondent is engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
The complaint alleges, the answer admits , and I find that the Union is a labor
organization within the meaning of Section 2 ( 5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Issues Presented
1. - Whether because of their respective union activities , or because they testified
in one or another of two preceding Board proceedings hereinafter described,
1 On August 26, 1965, the Charging Party named in the caption ( herein usually referred
to as the Union ) filed a charge , following which, on October 1, 1965 , the Board 's Regional
Director issued an Initial complaint. Respondent answered the initial complaint on Octo-
ber 12, whereupon , on October 13, the Regional Director issued an amendment to the
Initial complaint . Respondent answered to this amendment Thereafter , on November 24,
the Union filed an additional charge asserting various further violations , and a few days
later , on December 1, the Regional Director issued an extensive amended complaint to which
Respondent answered on December 8 During the presentation of the General Counsel's
case at the hearing , I granted , over Respondent ' s objection , a motion of the General Coun-
sel to add a further alleged violation to the complaint , with leave to Respondent to renew
its objection upon a showing of prejudice. Thereafter , Respondent litigated this further
issue without renewing its objection.
2 It is in order to note that , the brief for counsel for Respondent provides an unusually
exhaustive summary of , and transcript references to, the evidence adduced both by the
General Counsel and Respondent on each of the issues Such a brief is of particular assist-
ance when, as in this case , there is a somewhat lengthy record.
3 Respondent 's unopposed motion to correct the transcript , dated April 28, '1966, is
hereby granted.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent: (a) discharged employee Miguel Flores; (b) assigned "more arduous
and less desirable work tasks" to each of our employees; and (c) otherwise dis-
criminated against an employee.
2. Whether in a variety of other ways Respondent committed acts of interfer-
ence, restraint, or coercion in opposition to the union activities of its employees.
Background Setting of the Violations Charged in This Case
One main branch of this case encompasses charges that Respondent discriminated
against certain employees because of their union activities, or because they testi-
fied in one or another of two prior Board proceedings concerned with the Respond-
ent's San Antonio operations and employees, one an unfair labor practice case and
the other an election proceeding. Both of these latter proceedings are related in time
and in other ways with the instant proceeding, and as his proof of Respondent's
intent to discriminate in the respects charged in this case, the General Counsel
relies primarily upon Respondent's antiunion proclivity and conduct as found by
the Board in its recent decision in the preceding unfair labor practice case. In the
circumstances, it is essential to provide at the outset a description of the antecedent
employee union activity and Respondent's unfair labor practices, as set forth in the
following paragraph.
As found in the prior case, herein sometimes called Case 2011,4 in early Febru-
ary 1965 5 there arose among certain of Respondent's employees a move for repre-
sentation by the International Union (IUE) named in the preceding footnote 4.
At a meeting with an IUE representative on February 5, some six employees signed
IUE representation cards, and thereafter a few additional signatures were obtained.
Principal sponsors of this organizational effort were Alejandro Vasquez and Ray
Gonzales, both employees of the shipping department like most of the other
initial signers. Mr. Green, general manager of the San Antonio plant, learned
promptly of this incipient union activity and as promptly set in motion a countering
program, consisting of addressing all of Respondent's employees at a number of
group meetings held on February 16; visits by Respondent's officials and super-
visors with certain employees at their homes over the period February 16-March 2;
and a general dinner meeting on March 2 attended by the bulk of Respondent's
employees and members of their families. In the course of these events, through
statements or inquiries of one or another of its officials, Respondent engaged in
unlawful interrogation of some employees relative to their union activities; invited
reports from employees concerning the union activities of other workers; sought to
discourage its employees from supporting a union through certain threatening state-
ments, promises of benefits, and the conferral of an actual benefit in the form of an
improved employee insurance program; and created the impression that it had the
union activities of its employees under surveillance. Concurrently, threats to dis-
charge Vasquez and Gonzales because of their union activities were made by
Bonnemaison and Flores, the superintendent and foreman, respectively, of the
shipping department where Vasquez and Gonzales worked. Thereafter, on March 19,
Respondent, at the instigation of Bonnemaison and under cover of a pretext, dis-
charged Vasquez because of his union activity.
The Ensuing Employee Union Activity Involved in and Other
Main Features of the Instant Case
Sometime about late April or early May, the IUE made known to employee
Gonzales, one of the leaders of the IUE activity, its loss of interest in the matter
and its recommendation that contact be established with the Teamsters' Union,
which is the Charging Party in this case. Following this advice, Gonzales, accom-
panied by Miguel Flores, one of the small number of IUE card signers and an
alleged discriminatee in this case, met with Mr. Schafer, a union official. In conse-
quence of this meeting, there followed, on May 24, a gathering of some 20 to 25
employees of Respondent at a "Farmers" bar or grill, at which Schafer addressed
the employees and at which most of the employees in attendance signed union
representation cards. Either at this meeting or a subsequent one at the same place,
s That case is entitled "the Borden Company and International Union of Electrical,
Radio & Machine Workers, AFL-CIO," Case 23-CA-2011, Board decision issued March 25,
1966.
e All'dates used herein refer to the year 1965 unless otherwise Indicated.
THE BORDEN COMPANY 1275
the union supporters created a sort of organizing committee consisting of employees
Flores, Gonzales, and Alfaro and dischargee Vasquez, with Flores as chairman.
These four took the lead in soliciting further union card signatures , principally
at employees ' homes, and about June 1, Flores and Gonzales started wearing union
buttons while at work.6 On June 9, the Union filed an election petition with the
Regional Director ; a hearing was held on this petition on July 23; and on August 13
the Regional Director directed an election , the date for which (September 15) was
later determined and announced in election notices posted in Respondent's plant
on September 1.7 On that same date, however , the Regional Director directed that
the election be postponed indefinitely because on August 26 the Union had filed
its first charge in this case , a charge based on the August 20 discharge of Flores.
Concluding this general background account , the hearing in unfair labor prac-
tice Case 23-CA-2011 was held on August 9 and 10. The General Counsel called
seven employee witnesses in that case ( sometimes referred to as the Vasquez case in
the transcript ). Of this total of seven , five, namely , Flores, Gonzales , Sanchez , Ellis,
and Alfaro, all supporters of the IUE and later the Union, are alleged discrimina-
tees in this case. Gonzales and Flores were likewise two of the three witnesses
called by the Union at the July 23 hearing in the election proceeding.
Referring back to the statement of "Issues Presented ," I will deal first with the
set of charges involving alleged discrimination.
A. The charges of discrimination
1. The discharge of Flores
Flores' activities for the Union have previously been broadly summarized. While
the proof fails to establish Respondent's knowledge of the full extent of Flores'
role and activities, Respondent did not assert at the hearing any lack of knowledge
that Flores was a union supporter, and in his brief counsel for Respondent con-
cedes Respondent's knowledge that Flores wore a union button, that for a pro-
longed period he displayed a prounion election sign in the rear window of his auto-
mobile (which he regularly parked outside the plant), and that he was a prounion
witness at both the prior hearings. I find that Respondent knew that Flores was a
leading figure in the Union's representational drive.
Flores was hired in May 1964, and throughout his employment worked in the
ice cream department.8 He was terminated on August 20, 1965, by Department
Superintendent Tucker. It is undisputed that in terminating Flores, Tucker gave as
the reason for his termination (and that of another department employee, Jose-
phine Garcia, terminated on the same day) a reduction in force necessitated by
declining ice cream production. In the course of this explanation, Tucker referred
to Respondent's recent loss of an Army supply contract. Tucker further explained
to Flores that he and Garcia had been selected for termination because, of the
employees in the department, they had the least length of service with Respondent .9
Apart from one incident which I consider it more orderly to deal with later, the
General Counsel offered no evidence in the circumstances preceding or surrounding
the termination of a discriminatory purpose on Respondent's part. I turn, therefore,
to the affirmative evidence Respondent offered to explain Flores' termination.
Respondent's evidence establishes that its ice cream production follows the obvi-
ous seasonal trends in the demand for such products, i.e., high production in the
summer months and low production in the winter ones, with the upward and down-
ward trends taking the form of gradual curves, and with the low winter production
9 Further details of the,union activities engaged in by employees allegedly discriminated
against in this case are referred to hereinafter.
7 Respondent's plant production and maintenance employees composed, broadly speak-
ing, the unit sought by the Union and determined upon by the Regional Director There
were then some 65 to 70 employees in these classifications , apparently the larger figure of
200 or more San Antonio employees mentioned by the Examiner in Case 2011 is accounted
for because that larger figure includes route and driver salesmen and other employees not
engaged in plant production or maintenance operations.
8 There are two main production departments at Respondent's plant, the ice cream de-
partment and the milk department. There is also a shipping department and some main-
tenance operations.
90n Respondent's undisputed evidence, I find that in making departmental reductions
in force Respondent followed plant, not departmental , seniority.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounting to about 50 -percent of the summer peaks.'° Respondent adduced further
evidence (chiefly in the, testimony of Department Superintendent Tucker) that the
end-of-summer decline in ice cream production has over the last 10 years necessi-
tated some reduction in the personnel of that department; that this reduction has
usually amounted to about 2 employees, thus decreasing the staff to its normal
year-round level of about 10 workers; and that, most commonly, the needed reduc-
tion has been accomplished by the departure of college students engaged merely
for the summer season, and/or by the retransfer to the milk department of one or
another of the employees utilized during the summer in the ice cream department
(specifically in, recent years -a milk department employee named Dolores Hoyos).
In years when the necessary reduction has not been achieved by one or another of
these ways, or by unanticipated voluntary "quits," Respondent has resorted to the
termination procedure.
According to Tucker, 1964 was an exception to the reduction-in-force pattern
otherwise prevailing over the last 10 years; that is, Tucker testified, there was no
end-of-summer decrease in his work force that year because Respondent received
additional business toward that summer's end. This new business consisted of an
Army supply contract under which in the period of August 1, 1964, to January 31,
1965, Respondent delivered some 43, 000 gallons of ice cream products to a nearby
U.S. Army installation, and of a chain store supply contract not otherwise described
as to volume or period. The Army contract was later extended to cover the period
February 1 to July 31, 1965, with about 60,000 gallons delivered in this period.
Respondent's officials testified that they learned in the latter part of July that
the Army contract would not be extended. further but that at the same time Respond-
ent's sales department was hopeful that loss of this business would be offset by
some new chain store account and by a possible expansion of the San Antonio
plant's marketing territory. Subsequently, they testified, both these possibilities
vanished; Tucker thereupon concluded that he had to reduce his force by dropping
Flores and Garcia; and did so after inquiring of Plant Superintendent Palmer
whether, and being informed by Palmer that, there were no places for Flores and
Garcia in the milk department.
Respondent's witnesses further testified that on August 23, the Monday after
Flores' termination, Pickens, Respondent's retail sales manager, informed General
Manager Green that he was about'to advertise for an additional retail route sales-
man; that Green suggested to Pickens that he ascertain if Flores was interested;
that Pickens obtained the telephone number for Flores on file with Respondent and
called this number four times in the next several days; that he was told on each
occasion by the unidentified lady who answered the telephone that Flores was not
in, and on each occasion left a message for Flores to call him; and that he never
received any response from Flores and some 2 weeks later filled the position from
among other applicants. I credit this testimony."
There are aspects of- Respondent's evidence which, coupled with other evidence
of record, raise questions in my mind as to the validity of Respondent's explana-
tions for its decision to terminate Flores . In line with Respondent 's own evidence
that the normal end-of-summer reduction consisted of two employees, two depart-
ment workers other than Flores were actually let go. One was Miss Garcia, who
was told when hired in February 1965 that she would be employed only through
the summer "unless something happened"; and the other was a temporary worker.
released on July 31, who had been obtained from a firm (apparently engaged in
the business of supplying temporary help), known as "Manpower,' Inc." Moreover,
the record shows that despite the loss of the Army contract, Respondent's ice cream
production in the post-summer months of September-December 1965 was distinctly
greater than in the corresponding months of 1964, both in the aggregate and for
15 See General Counsel's Exhibits 7 and 8 setting forth the production by months during
the calendar years 1964 and 1965.
"Flores testified that he did not receive Pickens' messages, but it developed'from his
further testimony that he had no telephone at his own place of residence, and that, in
the case of Respondent as apparently with others, he gave the telephone number at his
parents' home as a means of telephonic contact with him. He went on to testify that when
he was expecting calls he "usually" visited the family, home and that otherwise some mem-
ber of his family would "usually" bring a message to his home if there was something he
had "to know." But obviously testimony of this character is Insufficient to establish that
Pickens' calls were not made or received at the number Flores had designated for that
purpose.
THE BORDEN COMPANY 1277
each component month. With the normal employee complement of the department
standing about 10 in both years according to Tucker, this evidence raises the ques-
tion why, if the post-summer volume of 1964 justified Flores' retention at that time
(as I understand to be Respondent's implicit position), the somewhat larger post-
summer volume of 1965 did not also do so. Furthermore, at the end of the 1965
summer Respondent retained in the ice cream department Dolores Hoyos, the milk
department worker who, prior to 1964, had been transferred to the ice cream depart-
ment only for the summer months, and who, as I understand Tucker's description
of his practice, would normally have been retransferred to her regular milk depart-
ment before he resorted to terminations.12 And, as an overall matter, it should be
noted that Tucker's description of the methods of increasing and decreasing the
staff of the ice cream department was a highly generalized one; that the methods
of decrease embodied a number of variables; and that he made no attempt to depict
the precise mode of application or effect of these variables in relation to the actual
reductions made in any particular year.
There is, however, a countering and equally troublesome matter. This is that
while a posthearing reading of the record may give rise to questions such as these,
answers to them were not sought at the hearing by counsel for the General Coun-
sel. And the very nature of the questions is such that, for ought that can be known,
had their implications been diligently pursued at the hearing Respondent would
have had satisfactory explanations for them.13
It is the very function of a hearing to obtain the answers to such troublesome
questions as I have alluded to and where they are not pursued at the hearing it
becomes an exercise in speculation, on a record such as this one, to regard the
questions as though they provided their own clear answers. Hence, I cannot con-
sider these troublesome circumstances as sufficient reason to reject Respondent's
explanation as incredible or unsupported and, on the record before me, I must
conclude that Respondent had a lawful sufficient business reason for discharging
Flores.
But Respondent could have had this lawful reason for discharging Flores without
that being its sole reason; that is, there still remains the question whether Respond-
ent was also motivated in discharging Flores by his union activities or because he
testified at the other Board proceedings. For even though Respondent had lawful
justification for Flores' discharge, its testimony that it, in fact, discharged Flores
for this reason is inherently self-serving and does not preclude its having seized
upon the opportunity thus afforded it to rid itself of a more-than-ordinary union
proponent, as it knew Flores to be.
In this posture of things, a first and fundamental question is what weight to
attach to the Board's findings in Case 23-CA-201 1. In this connection, various aspects
of Respondent's prior violations are of considerable significance. First, they are proxi-
mate in time . Second, they manifested an opposition to unionization of the employ-
ees deep-seated in character and extensive in unlawful implementation. Third, they
embraced threats to discharge two unionization leaders, and the actual discrimina-
tory discharge of one of the two. Fourth, Respondent's unlawful program stemmed
from Mr. Green, the top of the San Antonio plant hierarchy, embraced various
lesser officials , and there have been no changes in this managerial body.14
12 Miss Hoyos was not retransferred to the milk department at the end of the 1964
summer , but this proves nothing since Flores too was retained and there apparently were
no terminations at that time.
is For example, the record shows a relatively large amount of overtime worked by em-
ployees of the ice cream department in the summer months of 1965, with a sharp reduction
in these levels in the post-summer months (Respondent's Exhibit 19). With the record not
affirmatively showing that any college students were utilized in 1965, it may well be that
to some extent Respondent utilized overtime as a substitute for such temporary employees
in 1965, in which event any necessary reduction in force could have reached Flores sooner
than might otherwise have been the case . Respondent also established that beginning about
September 1, 1965 , it installed equipment for the automated production of ice-cream stick
"novelties" theretofore processed by hand, and its witnesses testified to an estimated result-
ing manpower saving to the extent of 11/ employees
14 According to a statement of its counsel at the hearing herein, Respondent has declined
to comply with the Board's Order in Case 2011 until required by judicial authority to do
so, but the Board's findings are binding upon me, and various of those findings attribute a
specific unlawful and discriminatory intent to Respondent.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the light of all these circumstances, the question is whether it is more reason-
able to conclude that Respondent's discriminatory determination, as vigorously
manifested in February and March, should be considered abandoned or dissipated,
or should be considered as still in existence and operative, after such a brief inter-
val. I think the probabilities favor the latter alternative. Experience shows that an
employer's deep opposition to the self-organization of his employees reflects a con-
viction or tenet not at all lightly held, and in cases without number the Board and
the courts have accorded decisive weight to an employer's contemporaneous or
somewhat antecedent union antipathy or unfair labor practices in reaching con-
clusions to be drawn from circumstantial evidence.15
Thus, were there no more to the case, I would infer from the characteristics of
Respondent's preceding violations the existence of a continuing purpose to dis-
criminate against such a significant exponent of unionization as Flores. The only
question left is whether the forces which give rise and lend strength to this infer-
ence should be considered effectively overcome because, shortly after Flores' dis-
charge, Respondent sought to afford him an opportunity to apply for the route
salesman vacancy. I conclude in the negative. For Respondent was not at the point
of offering the position to Flores; it sought only to ascertain whether he was inter-
ested in applying and there is no way of telling whether, had he applied, Respond-
ent would have adjudged him qualified or would have offered him the position
without regard to his qualifications or those of the other applicants.16 Moreover,
even if Flores had applied and been accepted, his assumption of the position would
have had the effect of removing him from the organizational scene, since the unit
sought to be organized was limited to plant employees. In short, Respondent's
post-discharge action is equivocal and as consistent with a continued discriminatory
purpose as not. Accordingly, I find that even though Respondent had a justifiable
reason for terminating Flores, it was motivated to do so, at least in part, by his
union activities, including his appearance as a witness in the two prior proceedings,
in violation of Section 8(a)(3) and (4) of the Act.17
2. The alleged discriminatory changes in work duties or assignments
Paragraphs 10 and 12 of the complaint charge that Respondent assigned each of
four employees "more arduous and less desirable" tasks because of their union or
concerted activities or because they testified in one or another of the two other
Board proceedings.
a. The case of Ray Gonzales
The alleged adverse change in Gonzales' duties took place on or about June 1.
Gonzales' activities on behalf of the Union had then just begun and there is no
15 See, for example, N.L R.B. v. National Seal Corp, 127 F.2d 776 (C.A. 2), where the
court, in an opinion by L. Hand, C J , attached decisive weight to an employer's union
hostility manifested some 3 years prior to the incidents in question. See also Mooney Air-
craft, Inc, 142 NLRB 942, and court decisions there cited.
15 Some 100 applicants responded to Respondent's "Help-Wanted" advertisement and
their interviews extended over a period of days.
17 While the evidence of Respondent's union antipathy and prior violations is a sufficient
basis for the finding of violation based on Flores' particular activities as a prounion witness,
there is an incident of record in this case lending some specific support to that finding.
Flores was served on the morning of August 9, with a subpena to appear that day as a
witness in Case 2011. He testified that in a related conversation with Superintendent
Tucker over being excused from work, Tucker inquired of him whether lie was being a
"bad boy" again (a remark which, if made, manifestly referred to Flores' having testified
at the July 23 hearing in the election proceeding) Tucker denied making such a remark,
but I credit Flores. The remark plainly reflected Tucker's displeasure with Flores' union-
associated activities in the form of his appearance at both hearings. While perhaps not
sufficient in itself to support a Section 8(a) (3) and (4) finding, it lends support to such
a finding when coupled with the evidence drawn from Case 2011, in which proceeding, it
may be further noted, one unfair labor practice found was based on Tucker's conduct.
(The Board found that Tucker, in interviewing Josephine Garcia at the time of her hire
in February 1965, inquired of her whether she had ever worked in a unionized plant and
went on to tell her that the (IUE) union was seeking to get into the plant and Respondent
did not want it.)
THE BORDEN COMPANY 1279
specific evidence that Respondent was aware of them . Moreover, this was long
before Gonzales' testimony at the two other hearings and before his succession to
Flores, upon the latter's discharge, as chairman of the Union's employee organiz
ing committee.18
Resting my findings concerning the issue presented in this case on those portions
of the evidence of the General Counsel and of Respondent which I consider most
credible, the facts surrounding the present issue are as stated below.
After being transferred in June 1963, to the shipping department, where he has
since worked continuously, Gonzales was a "wholesale stacker" until August 1964.19
At that time , for some reason Gonzales and three other shipping department
employees ( Martinez , Cadena, and Salazar ) were put on rotation , i.e., serving at
their normal assignments, and as "retail checkers," on an alternate week basis.
Salazar's employment ended in late 1964, and about March 1, Martinez was assigned
full time to the wholesale stacker work, while Gonzales and Cadena continued to
rotate weekly as previously described. About June 1, Cadena and another shipping
department employee named Adame were discharged, and a new employee, Ratliff,
was hired. In an ensuing personnel rearrangement, Bonnemaison and Roger Floes,
superintendent and foreman of the department , respectively , took over the retail
checking work for a period of about 2 months, Ratliff was assigned to retail "load-
ing," and Gonzales was returned, like Martinez before him , to the wholesale
stacker job as his regular post . Some 2 months later, Ratliff was shifted from retail
loading to the retail checking assignment.
The General Counsel does not question that assignments or reassignments of the
type made were necessitated by the personnel changes of the time, or point to any
specific indications that those actually made followed from anything other than a
fair judgment as to the best disposition to be made of the personnel on hand.
Moreover , the evidence shows that the employees of the shipping department gen-
erally, not just the stackers , were commonly engaged in manual labor of various
sorts, including loading and unloading work, and there is no evidence that the
wholesale stacker job (occupied both by Gonzales and Martinez) was considered
by Respondent or the employees as inferior to the retail checker or other assign-
ments in the department or as inherently a menial one. In this connection it is of
some significance that Gonzales never made any complaint of such a character to
Respondent following the June I reassignment. Furthermore , the stackers,' like
other shipping department employees , had various other duties during the day so
that the more laborious features incident to stacking took up only a portion of
their time.
In these circumstances , I am quite unable to find that in returning Gonzales to
what had previously been his normal full-time assignment, Respondent imposed
upon him more arduous or less desirable work tasks as charged in the complaint.
And even if the contrary were the case , I would find that the change in his assign-
ment was due to business reasons and not to any discriminatory intent on Respond-
ent's part . Accordingly , I shall recommend that this count of the complaint be dis-
missed for failure or proof.
b. The case of Ellis
The complaint charges discrimination against Ellis in that , after Ellis , testified
in Case 2011, Respondent discontinued "its past practice of allowing" Ellis "to
18 All that is clear, therefore, is that Respondent knew that Gonzales had been a leader
in the February activity in behalf of the IUE and in that period had, through Gonzales'
foreman , Roger Flores, uttered a threat, but one not carried out, to discharge Gonzales
because of that activity
19 Wholesale route salesmen, like retail route salesmen, return to the plant after making
the day's deliveries with cases (some containing empty bottles of various sizes but with the
majority-those used to deliver milk in paper cartons-containing no "empties "). These
cases are unloaded, in the form of stacks several cases high, onto a conveyor belt which
moves them into the case room . In the case room the "wholesale stacker" pulls the stacks
or some portion of them from the conveyor belt with a hook and drags those so pulled
from the belt some distance into the room He to some extent also lifts cases in the proc-
ess of forming stacks of even height . These operations consume only a part of his day;
other time is spent in other duties , including helping load and unload milk trucks or
transports.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform varied duties in the milk department and assigned him primarily to the
duties of casing milk." 20
Testimony which was initially elicited from Ellis appears to disprove what I
would understand such a charge to connote, since he testified that his period of
varied duties or assignments occurred only during the 2 months after his hire in
the fall of 1964. Apparently, what the General Counsel had in mind, however, is later
testimony of Ellis, to the effect that in July 1965, Superintendent Vaughn told him
there would be an opening to operate a half-gallon bottle filling machine, and,
informed of Ellis' interest in such a possibility, Vaughn sometimes thereafter
relieved Ellis on his casing job so that Ellis could watch the filling operation and,
on one or another occasion, assist in washing this machine and putting it together
(presumably after a dismantling for cleaning purposes). On this matter, Ellis fur-
ther testified that after the August 9-10 hearing in Case 2011, Vaughn sent, not
him, but Martinez, a "caser" like Ellis, to help wash or otherwise assist on the
filler' machine.21
Vaughn's testimony conforms to that of Ellis in that on some occasions he had
had Ellis ( as well as Martinez) assist the regular machine operator in washing the
machine and putting it back together.22 Vaughn went on to testify that he discon-
tinued letting Ellis assist in these respects as a result of complaints from Stein, the
machine operator, concerning Ellis' faulty work in assembling the machine. I credit
Vaughn' testimony and find, therefore, that there was no discriminatory reason
behind Vaughn's not permitting Ellis to' continue his previous and sporadic learn-
ing opportunities. Accordingly, I will recommend that this alleged unfair labor
practice be dismissed.23 ,
c. The case of Alfaro
The charge in Alfaro's case 24 is that in September he was transferred from the
position of wholesale truck checker to that of wholesale truck loader. On such
record evidence as exists relative to the various duties of the operations performed
in these jobs, it appears that both positions entail considerable but by no means
exclusively manual labor in the handling of milk cases or stacks of them, with one
main difference that the loader job entails more lifting of cases than the other.
But in view of evidence satisfying me that the assignment shift was not discrimina-
torily motivated, I pass over the question whether on the record before me it might
responsibly be found on the basis of such differences that one position was so
distinctly more arduous or less, desirable than the other so as to call Section
8(a)(3) or (4) into operation.
2D In addition to testifying in Case, 2011, the Board's findings in that case implicitly
charge Respondent with knowledge in February that Ellis was an IUE card signer. While
Ellis signed it union card there is no evidence that Respondent knew this,-and his appear-
ance in Case 2011',ywhich involved the IUE activity, would not necessarily demark him as
a supporter of the Union.
a! Both counsel for the General Counsel and for Respondent in their briefs misconstrue
Ellis' testimony in interpreting him as having stated that Martinez was actually assigned
to the filler machine job.
" While the matter is of no great significance in view of the narrow issue presented, I
accept Vaughn 's testimony that he never held out to Ellis any definite possibility of his
becoming the machine operator. There is no evidence that Respondent had in mind replac-
ing Stein , the machine 's actual operator, whom Vaughn considered specially competent, and
Stein was still the regular operator at the time of the hearing. It is more likely, therefore,
that if Vaughn said anything along these lines to E1.11s it was to the effect that giving Ellis
some learning opportunity might, serve a useful purpose in- the event of some future need
to fill the position.
At the hearing, counsel for the General Counsel adduced from Ellis' other'testimony
to the effect that after he testified in Case 2011 Ellis was not accorded the usual relief
about every 2 hours that had been the case theretofore There is no such charge in the com-
plaint, no corresponding amendment was offered at the hearing although in another partic-
ular involving Ellis (the sickpay matter, supra), such an amendment was proposed, and no
declaration was made by counsel that he was seeking to litigate this matter as an alleged
unfair labor practice. In the circumstances, I see no occasion to consider this line of
evidence and such opposing testimony as Respondent adduced in this regard.
24 Alfaro was readily identifiable to Respondent as a supporter both of the IUE and the
Union, in view of his involvement in Case 2011, his testifying in that case, and his wear-
ing of a union button following that hearing There is thus no need to decide whether
Respondent knew that Alfaro was a member of the Union's employee organizing committee,
of which knowledge there is no specific evidence
THE BORDEN COMPANY 1281
Respondent's evidence, which I credit, is as follows: General Manager Green
requested Superintendent Bonnemaison of the shipping department to find a place
for one Cuny, a wholesale route salesman of many years' service with Respondent
and many more than Alfaro, who (apparently because of a back condition which
made it difficult for him to do lifting) could no longer function on the wholesale
route work. Bonnemaison informed Green that the only available and suitable
place where Cuny could be used was in the wholesale checker position and gave
Cuny that job. This required reassigning Alfaro, who was given the wholesale
loader position, the previous occupant of which, in turn, was transferred to a retail
loader job.25 The General Counsel offered no evidence challenging the authenticity
of this explanation and at the time of the transfers no complaint was registered
by Alfaro.
I find that this reassignment was made for the reasons Respondent gave and
shall recommend dismissal of the charge for failure of proof.
d. The case of Sanchez
The complaint charges that at the end of August, which was after Sanchez testi-
fied in Case 2011,26 Sanchez was relieved of his duties as "inventory man" and
assigned to bottle-washing duties, but the evidence portrays more fully and accu-
rately the changes in assignments actually made.
As "inventory man," Sanchez spent from 2 to 3 hours at the beginning of each
day in performing tasks coming under this description. These consisted principally
of taking an inventory of the milk and milk products on hand in the milk vault and,
with this stock in mind, determining the quantities of such products to be produced
that day (for delivery the next) and writing up corresponding "plant" orders to be
followed by the operators of the milk container filling machines. The rest of the
day he spent on various other tasks, such as keeping the vault clean; dumping
returned milk products; supplying from the vault milk and related products to fill
special orders received during the day; and to some extent, helping with the truck
unloading, relieving other employees, and performing other duties not associated
with his inventory or vault functions.
At the end of August, broad changes were made in Sanchez' duties. He was
relieved of the inventory and other milk vault duties and given other major and
new assignments. These include operating a milk-can filling machine, a bottle-
washing machine, and a bottle-filling machine, and, on occasion, other duties when
necessary to fill out his day.
Superintendent Vaughn testified that a combination of two developments caused
him to make these changes. One was the receipt of new hospital business calling
for cans of milk and the use of a theretofore inactive can-filling machine in the
operation of which Sanchez was experienced. The other circumstance calls for
fuller explanation. Sometime in the late spring at least some of Respondent's trucks
left the plant on delivery earlier than had previously been the case. Incident to this
development, Sanchez began to experience difficulty on some occasions in having
on hand sufficient quantities of certain special milk products to be loaded on these
trucks, which caused delays in their departures from the plant and their meeting
delivery times. While Sanchez was on vacation from August 9-23, Vaughn entrusted
the inventory work to his Foreman Rauschuber (work which Rauschuber was still
performing at the time of the hearing), and found the prior difficulties being abated
under this arrangement. Vaughn testified that he discussed the proposed reassign-
ments with Sanchez; that in this conversation he asked Sanchez to take over the
can-filling job and mentioned both Sanchez' prior experience in handling the can-
filling operation and the difficulties Sanchez has had in handling parts of the inven-
tory work as previously described above; and that Sanchez readily accepted the
proposed changes of assignment. Vaughn further testified that on previous occasions
he had discussed the latter problems (for which, he testified, both he and Sanchez
had been blamed) with Sanchez, and that at one point Sanchez had expressed a
desire to be relieved of the inventory-order responsibilities.
25 In termination of this chain of reassignments, it appears that the previous occupant
of the retail loader job, Ratliff, was assigned to a vacancy in the retail checker position,
the work of which was then being temporarily performed by Supervisors Bonnemaison and
Flores (see supra, section a).
26 Under the Board's findings in Case 2011, Respondent must have known that Sanchez
was one of the comparative handful of TUE card signers. Sanchez also signed a union card
but this record does not indicate whether Respondent knew of this signature.
264-188-67-vol. 161-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel developed no fissures in Respondent's explanations; indeed;
some of the cogent evidence in favor of Respondent in this matter was adduced in
Vaughn's cross-examination by counsel for the General Counsel. In these circum-
stances, and with Respondent's evidence inherently persuasive, I credit Vaughn's
testimony and find that there was no penalizing intent on Respondent's part. Hence,
I will recommend dismissal of this portion of the complaint for failure of proof.
3. Other alleged discriminatory conduct
The Ellis Sick Pay Matter
Pursuant to an amendment to the complaint allowed at the hearing, the General
Counsel sought to establish that Ellis was discriminatorily deprived of sick pay on
one occasion. As an overall matter, consideration of this issue is greatly handi-
capped because counsel for the General Counsel adduced no useful evidence
directed to the question of whether Respondent had any clearly defined policy
relative to compensating employees for periods of illness; all that the record shows
is that on one or another occasion such compensation was paid. Nor is there any
proof establishing what procedure was to be followed and at whose initiative for
crediting employees with such compensation, regardless of whether its allowance
was mandatory or discretionary with Respondent.
With these observations, Ellis testified that he became ill after working for 2
hours on a day in October; that he mentioned his condition and desire to stop work
to his foreman, Rauschuber, and, at the latter's direction, to Vaughn; that the latter
gave him permission to leave; that when he signed his timecard some days later it
did not reflect sick pay for the hours of absence; and that he made no complaint
then or later to Respondent in this regard 27
Respondent's evidence is that Ellis did request Rauschuber for time off on one
occasion and that Rauschuber, after referring Ellis to Vaughn, left the plant at the
end of his shift without knowing whether Ellis spoke to Vaughn or whether Ellis
left the plant. According to Vaughn, however, Ellis never spoke to him.
If I considered it material whether or not Vaughn had granted Ellis time off, I
would find in the negative because Ellis was an unreliable witness in his testimony
on this matter. In his pretrial affidavit he stated that he told Rauschuber of his ill-
ness and left the plant, making no reference in the affidavit to any discussion with
Vaughn. Furthermore, in that affidavit he stated that he had previously been paid
for time off due to illness whereas at the hearing he testified that he had never
previously taken time off for illness. Similarly, his testimony as to when the inci-
dent occurred and how many hours he worked in the week in question could not be
confirmed by his timecards . But the telling factor is that even if Vaughn had granted
Ellis time off, there is no proof establishing, or suggesting, that Ellis thereby became
absolutely entitled to sick pay, for if that were the case Ellis would surely have put
in his claim promptly. And even if the situation were otherwise there is nothing in
the record indicating that such pay was consciously withheld by Respondent or
that Ellis' failure to receive it was or should have been known to Respondent. For
all the record shows, it was Ellis' responsibility to see that the proper notations
were made on his timecard or to invoke whatever other procedure was appropriate
to insure his receiving the pay.
The evidence fails to show any discriminatory conduct by Respondent in regard
to this matter and I will, therefore, recommend that the allegation be dismissed.
B. The alleged independent act of interference, restraint, and coercion
1. The "perjury" accusation
At the hearing in the election proceeding , Flores testified that he had been
informed by a company supervisor that:
it was the policy of the company to give a wage increase in three months,
after you had been hired, and then a year after that. It has been over a year,
and I have never got it.
Flores had received two wage increases before giving this testimony. He received
the first on August 7, 1964, 3 months after the date of hire, and the second on
April 14, 1965, incident to his transfer from his initial job to a new one.
27 In offering the amendment, counsel for the General Counsel stated he was first in.
formed of the matter 2 days before the hearing opened, although this case had then been
under investigation for a matter of many nonths pursuant to the Union's charges.
THE BORDEN COMPANY 1283
A few days after giving the above testimony, Flores was called from his work to
see Loessberg, Respondent's office manager and an admitted supervisor, who had
heard Flores' testimony.28 Loessberg stated to Flores that he had testified that he
had not received a raise since his employment had begun. Flores denied that he had
so testified, and told Loessberg that his testimony was that he had not received the
raise after 1 year's service that he had been told he was to get. Loessberg then said
that Flores had committed "perjury, given false testimony under oath" and asked
Flores if he knew what perjury was. Flores replied that he did, but that he knew
what he had testified to, and the conversation apparently ended with an exchange of
conflicting assertions by the two as to whether the record would support Loessberg's
or Flores' version of Flores' actual testimony.
The theory of violation advanced in the brief of counsel for the General Counsel
is that Loessberg made his accusation against Flores for intentionally coercive pur-
poses. In this connection counsel emphasizes that it was made at a critical point in
the Union's representational activity, that Flores was a leader of that activity, and
that the accusation was one which Loessberg could not support.. I, however, do not
regard the record as establishing any such coercive intent on Loessberg's part. Cer-
tainly Flores' brief and elliptical testimony was ambiguous, and could be under-
stood or interpreted, particularly as heard by a listener without opportunity to dwell
or ponder over a written record, as meaning that Flores had not received any raise.
And Flores' description of his conversation with Loessberg shows that this was, in
fact, the impression Loessberg had gained from Flores' words. The theory of pur-
poseful coercion must also be heavily discounted because of the fact that nowhere
in the conversation did Loessberg make any threatening or intimidating statement or,
by any retreat from his persistently asserted characterization of Flores' testimony,
intimate that he would consider Flores an offender regardless of how Flores' testi-
mony should be interpreted. In short, on the record before me, I must find that
Loessberg genuinely held his interpretation of Flores' testimony and was taking
Flores to task only on that basis. Accordingly, the theory of violation advanced is
not sustained by the evidence, and no other. theory having been asserted I will rec-
ommend dismissal of this allegation.
2. The alleged withholding of "benefits"
In relation to corresponding allegations in the complaint, counsel for the Gen-
eral Counsel sought to establish at the hearing, through the testimony of Gonzales,
that on two occasions he had been denied purchase orders commonly granted by
Respondent to its employees. Through such orders employees buy from local sup-
pliers; but on Respondent's account, various articles or goods needed for their per-
sonal use for which they reimburse Respondent. This procedure involves an employ-
ment "benefit" because purchases so made in Respondent' s name are at the prices
Respondent would be charged, which.usually are substantially less than the regu-
lar retail prices the employees would be charged. In practice, the employee obtains
from his supervisor and fills out a requisition form relative to the proposed purchase
and submits this to Loessberg, who, in turn, makes or has made out a correspond-
ing purchase order addressed to the supplier and describing the articles in question.
In his direct testimony, Gonzales referred to an incident involving some parts for
his automobile and in each case testified that Loessberg, the official who ordinarily
issues purchase orders, refused to issue them. In the case of the boots, he testified,
he then bought them with his own funds. But Gonzales' own testimony concerning
the automobile parts, and Respondent's testimony buttressed by documentary evi-
dence as to both incidents, establish beyond peradventure that Gonzales was issued
both purchase orders. Moreover, the evidence as a whole establishes that in describ-
ing occurrences surrounding his obtaining the parts order Gonzales unjustifiably
colored his testimony in a fashion designed to create the impression that General
Superintendent Palmer connived with him to circumvent Loessberg by having Gon-
zales wait until Loessberg would be absent and then obtain the purchase order from
a Mr. Geyer, apparently an assistant to Loessberg.
In his brief, counsel for the General Counsel has moved to dismiss these allega-
tions as without merit. The motion is clearly in order and is hereby granted.
28 While there is no record evidence on the point , I accept the statement of fact made
by counsel for Respondent in his brief that Loessberg attended the hearing at which Flores
testified, in the absence of any challenge of this statement by counsel for the General
Counsel.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Circulation of the Conner petition
The complaint alleges that Respondent, through Plant Manager Green, "condoned
and permitted" an employee named Conner to circulate through the plant soliciting
signatures to an antiunion petition.
Conner, a maintenance man working on an afternoon-evening shift, solicited sig-
natures to a no- or antiunion document (of his own exclusive devising) at Respond-
ent's plant during Monday and part of Tuesday, September 6 and 7. But there is
no evidence that Respondent has any rule prohibiting such solicitations during work-
ing hours. Moreover, even if there were such a rule, the evidence fails to establish
that Conner engaged in such solicitations on his own worktime,29 or that any of
those instances when Conner solicited employees during their worktime 31) were
known either to Palmer or to any lesser plant supervisor 3a
Under the circumstances, the proof fails to make out any violation on Respond-
ent's part in this connection, and I shall recommend that this allegation of the com-
plaint be dismissed.
4. General Manager Green's alleged "instructions" relative to the Conner document
The complaint alleges merely that Manager Green "instructed" Conner, in the
presence of other employees, to deliver the above-mentioned document to the Union.
There being no real conflict in any of the surrounding testimony, the facts are
that Conner arranged a meeting with Mr. Green during a break period during the
afternoon of September 7 and brought to the meeting a number of signers of the
document, and nonsigner and union supporter Gonzales. At the meeting, Conner
told Palmer the nature of the document and offered it to Green with the expressed
thought that Green might somehow use the document, with the Union or with
Respondent's attorneys, to cause the election (then already postponed by the
Regional Director) to be held, or to have the Union withdraw its election petition.
Green declined even to look at the document or to do anything with it because of
the danger of further charges of violation and told Conner that he might take the
document to the Board or see that the Union got it. In saying this he made it clear
that what was to be done with the document was for the employees to decide and
not for him. Further, Palmer asked that certain antiunion posters put up in the plant
the day before (by Conner as it turned out) be removed by whoever was respon-
sible for them, which was done.
Counsel for the General Counsel offers in his brief no theory of violation
addressed to this portion of the complaint, and I can perceive none whatsoever on
the record evidence. Accordingly, I shall recommend dismissal for failure of proof.
5. The alleged threat of discharge
In connection with a corresponding allegation of the complaint Ellis testified that
about a month after he testified in Case 2011, Superintendent Vaughn and he fell
2' The rather imprecise testimony given by three employee witnesses for the General
Counsel fails to create any clear conflict with Conner 's testimony that he made his solicita-
tions before his shift began and during his meal or other breaktime periods. The fourth
witness for the General Counsel admittedly was solicited during his and Conner's
nonworktime.
so Conner testified that his solicitations of employees were mainly during their nonwork-
time periods but he admitted to some instances when the employee in question, while
technically on worktime, was away from his work station or at his station but not actually
at work. In this connection, the record amply shows that employees commonly had inter-
vals of nonwork activity during their worktime and during such intervals, stood or moved
about, talked, etc.
ai In his brief, counsel for the General Counsel refers to the testimony of Sanchez as
establishing Supervisor Pechal's knowledge of one solicitation incident. But, and passing
over the fact that this solicitation was on nonworktime for all concerned, Sanchez' testi-
mony that Pechal sort of stopped to say good morning as he was passing by falls short of
establishing or even indicating that he understood what was going on. And I do not credit
Ellis' testimony that on one occasion he saw Conner talking to Superintendent Vaughn
and Foreman Rauschuber in the laboratory while holding the petition in his hand, in the
light of Ellis' statement in his pretrial affidavit that when Conner was in the laboratory,
Vaughn and Rauschuber were merely "around" where they could see Conner I should
add that counsel for the General Counsel does not refer to Ellis' testimony in this regard
in his brief.
THE BORDEN COMPANY 1285
into conversation while Vaughn was helping Ellis with his "casing" job. In the
course of the conversation, Ellis testified, Vaughn stated that although he had been
with Respondent for a long time he had not fired any employee for about 10 years.
Then, Ellis testified, Vaughn went on to say that ". . . Borden's a good company to
work for as long as you keep your nose clean . You wouldn't have a reason for get-
ting fired." Contrary to a statement in the brief for the General Counsel, Vaughn
denied having made any such remarks to Ellis.
I find it unnecessary to resolve the foregoing conflict in testimony. For the expres-
sion concerning keeping one 's nose clean , while frequently used by employers to
admonish employees to steer clear of union activities, is also used in other contexts.
Hence, in the absence of any intimation by Vaughn that he was referring to Ellis'
having testified some considerable time before in Case 2011 or to any other union
activities of Ellis, I am reluctant to infer that the remarks, if made, necessarily
entailed such specific references. Accordingly, I will recommend dismissal of this
charge.
6. The alleged threat of loss of sick pay
In relation to paragraph 8(g) of the complaint, it is undisputed that sometime in
October, Shipping Superintendent Bonnemaison gave union supporter Gonzales per-
mission to leave work to consult a doctor, after Gonzales complained of hip pain;
and that sometime after he had returned to his job several days later, Bonnemaison
brought Gonzales his timecard to sign in accord with Respondent 's practice, and,
as demonstrated by the markings on the card, assured Gonzales that he was being
paid for days off. Gonzales testified, and Bonnemaison implicitly denied, that in the
course of this conversation Bonnemaison further said: "Now, we have to pay you,
but perhaps next time you won't be so fortunate."
Assuming for the moment that these were Bonnemaison's exact words, I cannot
find in them any violation of the Act because neither in them, nor at any juncture
in'the much broader series of events which Gonzales described as surrounding this
incident, was there any reference, direct or indirect, to Gonzales' union activities
or witness appearances. And in the light of other considerations, the remarks, if
made, could have had wholly innocent directions.32
Accordingly, I will recommend that this charge of violation be dismissed 33
7. The September wage increase
At an employees' meeting held in early September, after the Regional Director
had postponed the election indefinitely as a result of the Union's August 26 charges,
Plant Manager Green told the employees that it had been Respondent's practice to
make wage increase reviews annually; 34 that he hoped to be able to do the same
thing; but that he could not promise the employees anything until after consulting
Respondent's attorneys. At a similar meeting in late September, Green stated that
Resp`ondent's, attorneys had advised that wages could be increased in view of the
indefinite postponement of the election, and that Respondent was therefore mak-
32 As previously noted, the record fails to show that Respondent followed other than a
discretionary ad hoc practice in determining whether to grant sick pay for absences under
claim of illness (Gonzales himself was uncertain whether he had been paid for a con-
temporaneous absence to visit a dentist), and common sense would dictate that it would
not award sick pay unless satisfied that the claim of illness was genuine. Moreover, Gon-
zales testified that when Bonnemaison gave him leave on the occasion in question, Bon-
nemaison remarked upon Gonzales' frequent recent absences. These circumstances enhance
the possibility, permitted by the alleged remarks on their face, that Bonnemaison had in
mind considerations other than those of a discriminatory character
83 Counsel for Respondent, in urging me to credit Bonnemaison over Gonzales on the
question of whether the remarks were, in fact, made, and to discredit Gonzales' testimony
on other issues in the case, launches a heavy attack on Gonzales' reliability as a witness.
My disposition of the issues makes it unnecessary to reach a considered judgment on
Gonzales' credibility, but, if the'point"were material, there is enough in the record to
require very serious consideration of Respondent's contention in this regard, such as, for
example, Gonzales' colored and inaccurate testimony on matters involved in the "purchase
order" incident.
34 Respondent had granted general raises in 1964.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing increases which it had taken under consideration in the early part of the year
but which had been put into suspense due to the union organizational activity.35
It is true that at the first meeting Green referred to the Union as having
"deserted" the employees and as having "chickened out" (i.e., had caused indefinite
postponement of the election by filing its first charges) and may have employed the
occasion to cast another aspersion or so in the Union's direction, but it is also true,
on the evidence before me, that the increases granted were under consideration
before the Union's representational activity began; that Green assured the employ-
ees that this was the case; that they were in line with what had taken place the year
before and were made on the advice of counsel; and that at the time of the Septem-
ber meetings the election had been indefinitely postponed. In these circumstances, I
find that the increases were granted in a normal business course and not for the
purpose of thwarting the Union's representational drive. Accordingly, I will recom-
mend dismissal of the complaint in this respect.
With regard to my findings on all issues presented, I have borne in mind Respond-
ent's other recent unfair labor practices. I have given those antiunion moves and, in
particular, the discriminatory purpose various of them disclose, dominant effect in
the case of Flores, essentially, I trust (although this is a delicate subjective matter),
for the reasons previously indicated. Without attempting any definitive explanation,
I have not given them decisive effect respecting other issues because, in the main, of
the relative weakness of the General Counsel's case or, put another way, the distinctly
more persuasive strength of Respondent's proof, bearing in mind also that to trans-
gress on some occasions is not necessarily to err on all; and that past offenses can-
not alone serve to resolve later charges but can be given only such weight, greater
or lesser, as in each instance seems appropriate in the light of all the surrounding
evidence.
CONCLUSIONS OF LAW
1. By discharging Miguel G. Flores because of his union activities and because
he gave testimony under the Act, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3), (4), and (1) of the Act.
2. Respondent has not engaged in any other unfair labor practices with which it
has been charged in this proceeding.
THE REMEDY
In view of the serious character and implications of any discriminatory discharge,
my Recommended Order contains the "broad" form of cease-and-desist provision
coterminous with Section 8(a)(1) and 7 of the Act. By parity of reasoning, and in
view of the successive labor organizations involved in the employees' organizing
activity and Respondent's successive unfair labor practices, I have broadened the
provisions restraining further discrimination on Respondent's part so as to include
other labor organizations than the Union specifically involved in this case.
As affirmative relief necessary to effectuate the policies of the Act, my Recom-
mended Order, among other things, requires Respondent to offer reinstatement of
Flores to his former or substantially equivalent position and to make him whole for
his lost earnings, with interest thereon, according to the corresponding formulas set
forth, respectively, in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
The Borden Company, San Antonio, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from discouraging membership in Local 657, General Drivers
and Helpers Union, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other labor organization, by
discrimination in regard to hire or tenure of employment or any.term or condition
of employment; from discriminating against any employee because he has given
testimony under the Act; and from in any other manner interfering with, restrain-
s5 Manager Green assumed charge of the San Antonio plant in early January lie testi-
fied that his predecessor helped break him in during the next several weeks ; and that
during this period some wage inequities were corrected and studies initiated relative to
other wage revisions
THE BORDEN COMPANY 1287
ing, or coercing its employees in the exercise of any of the rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act and adequately to remedy Respondent's violations thereof:
(a) Offer to Miguel G. Flores immediate and full reinstatement to his former or
a substantially equivalent position, without prejudice to his seniority or other rights
or privileges, and make him whole in the manner described in the portion of the
Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered
by reason of the discrimination against him.
(b) Notify the above-named employee, if serving at present in the Armed
Forces of the United States, of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to give effect to
the backpay requirement.
(d) Post at its San Antonio, Texas, plant, copies of the attached notice marked
"Appendix." 36 Copies of said notice, to be furnished by the Regional Director for
Region 23, after being duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
herewith 37
Those portions of the complaint as to which no violations have been found are
hereby dismissed.
36 If this Recommended Order be adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner'
in the notice In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words, "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and Order "
S7 If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for Region 23, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith "
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 NOT discharge or otherwise discriminate against any employee
because he has joined, designated, or supported Local 657, General Drivers
and Helpers Union, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor organi-
zation , or because he has given testimony under the National Labor Relations
Act, as amended.
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 the above -named or any other labor organiza-
tion , 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 , and to refrain from any and all such
activities.
WE WILL offer to Miguel G . Flores immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay, he
may have suffered by reason of our discrimination against him.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
THE BORDEN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone
228-4722.
Carpenters District Council of New Orleans and Vicinity, AFL-
CIO and Delta Painting Co., Inc . Case 15-CC-366. Novem-
ber 23, 1966
DECISION AND ORDER
On July 26, 1966, Trial Examiner Harry H. Kuskin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged 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 to the Decision 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 [Chairman McCulloch and Members Brown and Zagoria].
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 this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
'Respondent contends that it was entitled to bring pressure on both Southern and Delta
because it had a primary dispute with each over a breach of contract. However, the dis-
pute with Southern was over a contract clause which was lawful only because of the con-
struction industry proviso of Section 8(e). Thus, strike action to enforce that clause was
unlawful. Northeastern Indiana Building and Construction Trades Council (Centlivre
Village Apartments), 148 NLRB 854, reversed on other grounds 352 F.2d 696 (C.A.D.C.).
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Harry H. Kuskin at New
Orleans, Louisiana, on March 28 and 29, 1966, pursuant to a charge filed on Janu-
ary 11, 1966, by Delta Painting Co., Inc., herein called Delta, and a complaint
issued on January 20, 1966, in which it was alleged that Carpenters District Council
161 NLRB No. 115.