Whorton's Food Market

National Labor Relations Board - Board Decisions

Jun 13, 1969

176 N.L.R.B. 656 (N.L.R.B. 1969)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Romayne H. Wharton , Rachel H. Whorton , Mrs. R.
L. Whorton , Co-Partners , d/b/a Whorton's Food
Market and Retail Clerks International
Association , Local 1564, AFL-CIO and
Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 391,
AFL-CIO. Cases 28-CA-1685, 28-CA-1725,
28-CA-1727, and 28-CA-1686
June 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 10, 1969, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
case,' finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint. Thereafter, the Respondent filed
exceptions to the Trial Examiner's 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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondents, Romayne H.
'T- is7case was consolidated for hearing with Case 28-RC-1797, which
was thereafter severed and remanded to the Regional Director for further
appropriate action . By his Order dated May 21, 1969 , the Regional
Director set aside the election conducted on June 12, 1968 , in Case
28-RC-1797.
'We do not agree with the Trial Examiner 's conclusion that on the
particular facts of this case, responsibility for the conduct of Robert and
Ronald Whorton can be imputed to their parents , to support a finding of
creating the impression of surveillance . Accordingly , we shall modify the
Recommended Order by striking that portion referring to creating the
impression of surveillance.
'The Respondent, by its unfair labor practices subsequent to the Union's
attaining majority status, precluded the holding of a fair election herein,
and we therefore agree with the Trial Examiner that this is an appropriate
case for the issuance of a bargaining order.
Whorton , Rachel H . Whorton, Mrs. R. L.
Whorton , Co-Partners, d/b/a Whorton's Food
Market, Las Vegas, New Mexico , their agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order,
as so modified:
1. Delete paragraph A(1) and substitute the
following:
"1. Unlawfully interrogating and threatening
employees."
2. Delete the first indented paragraph of the
notice and substitute the following:
WE WILL NOT unlawfully interrogate and
threaten our employees or in any other manner
interfere with them in the exercise of their
guaranteed statutory rights.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: On April 19,
1968,' Retail Clerks International Association, Local
1564, AFL-CIO (hereafter called Retail Clerks) filed a
petition for certification as majority bargaining
representative of Respondents' grocery employees. Case
28-RC-1797. On the same day, Amalgamated Meat
Cutters and Butcher Workmen of North America, Local
391, AFL-CIO (hereafter called Meat Cutters) filed a
petition for certification as majority bargaining
representative of Respondents' meat department
employees. Case 28-RC-1796. Pursuant to consent
agreements approved May 29, elections were scheduled for
June 12. On April 25, the Retail Clerks and Meat Cutters
each filed unfair labor practice charges alleging certain
preelection misconduct by Respondents. The elections
were held as scheduled with the following results: in the
grocery employees unit, the vote was 6 to 5 against the
Retail Clerks, and 2 ballots were challenged; in the meat
department unit, the vote was one for the Meat Cutters
and 4 ballots were challenged.
On June 17, the Retail Clerks and the Meat Cutters
each filed objections to conduct allegedly affecting the
results of the respective elections. On June 25 and 26, the
Retail Clerks filed additional unfair labor practice
charges. On July 18, the Regional Director issued his
reports on the challenged ballots. In Case 28-RC-1797, he
overruled the two challenges, and the revised tally of
ballots showed that the vote was 7 to 6 against the Retail
Clerks. In Case 28-RC-1796, the Regional Director
overruled two and sustained one of the four challenged
ballots, and the revised tally of ballots showed 2 votes for
the Meat Cutters and 1 vote against that union. The
fourth ballot, cast by Employee Thomas A. Lujan, had
been challenged by Respondents on the ground that he
had quit his job. The Regional Director deferred making a
decision thereon pending investigation of the Meat
Cutters' unfair labor practice charge, alleging the
constructive discharge of Lujan.
On July 29, based on the above charges, the Regional
Director issued a consolidated complaint alleging that
Respondents had violated Section 8(a)(l) and (3) of the
National Labor Relations Act, as amended. On August 9,
the Regional Director issued orders directing that hearings
be held on certain of the objections filed by the two
unions in Cases 28-RC-1797 and 28-RC-1796. On the
'All dates hereafter mentioned refer to 1968 unless otherwise specified.
176 NLRB No. 88
WHORTON'S FOOD MARKET
same day, the Regional Director issued an order
consolidating such objections for hearing with the
consolidated complaint already issued, and providing that
following the decision by the Trial Examiner, Cases
28-RC-1796 and 28-RC-1797 should be severed and
transferred back to the Regional Director for further
disposition. On August 26, the Regional Director issued a
second supplemental report on the challenge to the ballot
cast by Lujan in Case 28-RC-1796, in which he ordered
that the ballot should be opened and counted.' On the
same day, he issued an order severing Case 28-RC-1796
from the consolidated proceeding to be heard before a
Trial Examiner.
The consolidated proceedings were heard before me at
Las Vegas, New Mexico, on September 24 through 27,
1968. The principal issues presented are whether or not
Respondents engaged in unlawful interference, restraint,
coercion and discrimination;' whether or not certain of the
objections filed in Case 28-RC-1797 have merit and
require that the election in that case be set aside;' and if
so, whether or not a bargaining order should be issued
against Respondents.
Upon the entire record, my observation of the
witnesses, and the briefs filed by the General Counsel and
by Respondents, I make the following:
FINDINGS AND CONCLUSIONS'
1. THE UNFAIR LABOR PRACTICES
Respondents Romayne H. Whorton (hereafter referred
to as Whorton) and Rachel H. Whorton (hereafter called
Mrs. Whorton) are husband and wife and copartners
engaged in the business of operating a retail grocery store
and meat market in Las Vegas, New Mexico.' On April 8,
a number of their employees met to discuss possible
unionization. On April 18, certain of their employees
attended a joint meeting held by the Retail Clerks and the
Meat Cutters at which a number of them signed
authorization cards distributed by the two unions. Others
signed cards on the ensuing two days. On April 19, the
said unions each filed the petitions for certification
already referred to. Thereafter, Respondents engaged in
some of the conduct discussed below.
A. Interference , Restraint , and Coercion
1. Interrogation; threats to close the business
a. The evidence
(1) On April 22, Mrs. Whorton held a meeting with
Employees Maestas, Sr., Vigil and Willie Flores. Her
testimony as to her remarks to them is as follows:
The Regional Director determined that Lujan's ballot would govern the
outcome of the election; that if his vote was for the Meat Cutters, that
union would have a majority irrespective of Lujan's eligibility to vote, and
that only if Lujan was eligible and voted against the Meat Cutters woult
that union lose the election.
At the close of this case in chief, the General Counsel was permitted to
strike par 8(d) of the complaint.
'Specifically, Objections 2, 5, 7, 8, It, 12, and 13 The General Counsel
was permitted to strike Objection 6.
No issue of commerce is presented . The complaint alleges and the
answer admits facts which , I find, establish that Respondents at all times
657
A. 1 had a small booklet and the title of it was,
"Loyalty", and I read it to the boys and asked them
what it meant to them. Then I explained that I had
received this petition from the Labor Board and I
explained our situation - that we wouldn't be able to
operate under those conditions.
Q. Just what did you say, that's what I want to
know?
A. That's about what I said, that we couldn't pay
out more than we took in, that we couldn't stay in
business if they had that much increase in salaries and
other benefits.
Q. Did you, at that time, threaten to close the
business?
A. I told them that we couldn't stay open.
Maestas, Sr., testified that Mrs. Whorton did not mention
the store during the meeting. On direct examination by
the General Counsel, Vigil's testimony regarding her
remarks was as follows:
A. Yes, she did mention if the union was to come in
to the store, she would have to close it.
Q. To the best of Your recollection, are those her
words?
A. Something similar to that. I do not recall the
exact words.
On cross-examination, he testified as follows:
Q. (By Mr. May) At that time did Mrs. Whorton
make any threats about what would happen to anyone
who would join the union?
A. All she mentioned was that she would have to
close the store.
Q. Tell us in her words what she said.
A. Well, I don't recall her words exactly.
Q. Isn't it a matter of fact that Mrs. Whorton said
that a small operation like this, any increase in cost
would require us to close it down, we couldn't make a
go of it.
Q. I don't recall her saying that.
(2) On April 23, Mrs. Whorton held a meeting with
Employees Padilla, Aragon and Robert Garza. According
to Mrs. Whorton, she "talked to them the same way as
[she] did with the first group" on the preceding day.
Aragon testified as follows:
A. Yes. She said that she couldn't afford to pay
union wages and the store would have to close down.
She said the books were there if we wanted to look at
them. Then she told us those were the facts and what
we did was up to us.
Padilla testified as follows:
Q. Do you remember speaking to Mrs. Whorton
after Lopez's discharge?
A. Yes.
Q. Where was this?
A. In her office.
Q. Were you alone?
A. No.
Q. Who was with you?
A. I think LeRoy Aragon and Robert Garza.
Q. What did she say when she was in that office?
A. She just read the little pamphlet.
s s s s s
material were employers engaged in commerce and in operations affecting
commerce I further find that the Retail Clerks and Meat Cutters are
labor organizations within the meaning of the Act.
The third copartner, Mrs R L. Whorton, is Whorton's mother
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Hollis) Is that all she did?
A. She said if the union went in she would close the
store
Q. (By Mr. Hollis) Did she say anything about
destroying her.
* * * * *
A. I think she said, "Destroy me and you will
destroy the shop."
* * * * *
Q. (By Mr. May) Did you ever tell Mr. and Mrs.
Whorton that you signed such a card other than what
you testified here today?
A I didn't tell them, but they probably found out.
Q. Why do you say they probably found out?
A. Because when I went to the office she asked us
that day why we had signed those cards.
* * * * *
Q. (By Mr. Hollis) In the office in the latter part of
April, did Mrs. Whorton say anything to you or ask
you anything about a union authorization card?
\. She asked us why we signed the cards.
Q. The authorization cards?
A. Yes, sir.
Q. This was at the same time when she mentioned
the store?
A. Yes, sir.
Q. And what did she say about the store?
A. She said she would close the store if the union
came in.
(3) Respondents' bookkeeper, Laura Waring, testified
that she had heard Respondents discuss closing and
remodeling the store, that she thought such discussions
first occurred sometime in 1967, and that they were still
talking about it. At one point, she testified that sometime
between April and the election, she heard Whorton and
Mrs. Whorton say that "it would just be necessary to
close the store if the Union came in." On further
interrogation, she testified that she heard them say that
"they could not afford to keep the store open if the Union
came in ." She did not state to whom these statements
were made.
(4) Employee Ramon Ray Torres testified that
sometime in April, Whorton told him and Employee
William S. Flores, both of whom were in the meat
department, that "he was not going to sign a union
contract," that "he could not operate under their
conditions," and that "if the union came in he was going
to close for a 45-day period and remodel and open with a
self-service place" with one meat cutter and one wrapper.
Flores testified that Whorton told them that "if the Union
came in, he might have to close the store for 45 days and
convert it into self-service."
Whorton denied ever having "made any threats" to
close the store. He testified that on or about April 24, he
made the following remarks to Flores and Torres:
A. Approximately the same thing I said to - I guess
I'd better answer that, I'm sorry. I told them my
financial set up, what I knew and that if we were forced
to join the Union, it would be impossible for us to
operate, that we could not show a reasonable profit to
allow us to stay in business.
He further testified:
Q. Did you make any threats at that time to close?
A. No, sir, I never made any threats.
Q. Did you ever make any statements of this type to
any of the other employees of either the meat market
or the grocery store?
A. Not to my knowledge, sir.
(5) Vigil testified that sometime in April, while he was
in the back room of the store with employees Joe LeRoy
Torres, Padilla and Aragon, Whorton stated to them: "If
the damned union is going to come in here, I'll close the
doors before they do."
(6) Aragon testified that after the discharge of Lopez
on April 22, Whorton told him, employees Vigil, Padilla,
Patrick Thomas Garza, and possibly Joe LeRoy Torres,
that "if we voted the union in he would have to close the
store. If we wanted a union job like that, why didn't we
go to Albuquerque."
(7) Emloyee Baca testified as follows respecting
remarks made to him by Whorton 2 days before the
election:
He called me in and told me that he didn't know if I
knew what was going on, but he said that there was
going to be an election held in the store and that the
union was trying to take over and that if the union did
go into the store, he would be forced to close. He also
said that the rest of the employees thou*ht he was
bluffing and that he wasn 't, that he was going to close
down the store.
(8) Employee Rodriguez testified on direct examination
by the General Counsel that about 2 weeks before the
election, Whorton asked him, "How does the union expect
me to pay $300 when I am only making $200 ", and then
stated that "if the union came in he would close the
store." On cross-examination, he testified that Whorton
then told him about the election and asked whether
Rodriguez "was with him."
(9) Maestas, Sr., testified that Whorton stated in his
office that "he would have to close the store because he
could not meet the union's demands"; that he thought the
statement was made before the election; that the
Respondents had discussed closing the store temporarily
for remodeling off and on for 3 or 4 years, and had
mentioned the subject again recently, prior to the union
activities.
(I0) Employee Patrick Thomas Garza testified that
while he was near Whorton's office, sometime after the
April 18 meeting , he overheard Whorton tell an
unidentified individual that "the union would come in but
it would be over his dead body."
b. Concluding findings
Respondents contend that Mrs. Whorton's statements
were lawful because she believed in good faith that
Maestas, Sr., Vigil and Willie Flores were supervisory
employees; and that in any event, her statements were
noncoercive. Respondents do not contend that the above
three employees were in fact supervisors and, indeed,
stipulated that Maestas , Sr., and Vigil were within the
unit which the Retail Clerks claimed to represent. I find
that all three were rank-and-file employees. Accordingly,
if " any of the statements made to them were otherwise
unlawful, they would not be excused even if Respondents
had a good faith belief that the men were supervisors.
Federal Envelope Co., 147 NLRB 1030, 1036.
I reject the denial by Maestas, Sr., that the store was
not mentioned at the April 22 meeting by Mrs. Whorton,
who herself admitted such mention . However, I find that
Vigil 's testimony was inconclusive as to what she said and
WHORTON'S FOOD MARKET 659
that the General Counsel has not sustained his burden of
establishing a threat to close the store, if it was unionized.
At most, the record establishes that she stated that
Respondents could not pay out more than they took in,
and that they could not remain in business if salaries and
other benefits were increased to the extent anticipated
from unionization (see item ( I), supra). I find that such a
statement was a prediction of possible economic effect of
increased costs rather than a threat of reprisal to force the
employees to abandon unionization, and hence was not
unlawful. Wilmington Heating Service, Inc., 173 NLRB
No. 15.
With respect to the April 23 meeting , Aragon
corroborated Mrs. Whorton's testimony that her remarks
were similar to those which she made on the preceding
day. He thus contradicted the testimony of Padilla, who
testified to a threat to close the store if unionized (see
item (2), supra). In view of the failure of his witnesses to
agree to what was said, I find that the General Counsel
has not sustained his burden of establishing that a threat
was made. However, I find from Padilla 's uncontradicted
testimony that Mrs. Whorton asked him , Aragon and
Robert Garza why they had signed union authorization
cards, and that Respondents thus engaged in unlawful
interrogation (see item (2), supra ).' In effect , she implied
that she knew that they had signed , asked them to admit
it, and requested an explanation . Such conduct had a
coercive impact.'
I find that the remarks attributed to Respondents by
Waring were not threats and that, in any event her
testimony fails to establish that such remarks were made
in the presence of any rank-and-file employee (see item
(3), supra). Accordingly, they were not unlawful.
Based upon other self-contradictory testimony by
Whorton and his demeanor , I do not credit his denial that
he threatened employees , and credit the testimony of
Torres, Flores, Vigil, and Aragon, referred to in items (4),
(5), (6) and (7), supra. Such testimony , I find , establishes
that Whorton unlawfully threatened to close the store if
the Retail Clerks won the election . It also establishes that
Whorton unlawfully threatened to convert the meat
department into a self-service operation with two
employees if the Meat Cutters was voted in. Although
Whorton stated that he "could not operate under their
conditions," i.e. the Unions' s conditions, this remark did
not clearly convey the impression that he could not afford
higher wages and other benefits. Considered in the light of
his vow not to sign a union contract and to close the
store, it could be construed as a statement that he would
discharge meat department employees if he was required
to deal with the Meat Cutters.
I further find that the remarks attributed to Whorton
by Rodriguez and by Maestas , Sr., amounted to a
prediction of economic consequences rather than a threat
to close the store, and that the record fails to show that
statement attributed to him by Garza was made in the
presence of a rank -and-file employee (see items (8), (9),
and (10), supra). Accordingly, I find that such statements
were not unlawful. However , I find that Whorton's
interrogation of Rodriguez ' constituted an inquiry as to
how he intended to vote in the election and was unlawful
(see item (8), supra).
'Padilla's testimony regarding such interrogation was brought out on
cross-examination by counsel for Respondents . I place no reliance upon
Padilla's affidavit which was received in evidence.
'Such interrogation by Mrs. Whorton, although not expressly alleged in
the complaint, was fully litigated at the hearing.
In sum , I find that Respondents engaged in unlawful
interrogation and threats, thereby committing unfair labor
practices within the meaning of Section 8(a)(1). I further
find that Respondents did not violate the Act by the
conduct referred to in items ( 1), (2) insofar as it relates to
alleged threats , (3), (8) insofar as it relates to alleged
threats, (9) and (10).
2. Surveillance
On June 11 , the night before the election, employees
Vigil and Aragon were interviewed by a Board agent at
the latter's motel room in Las Vegas. Vigil's car was
parked in front of the room. That night, Robert Whorton,
Respondents' son who was then a store employee, his
brother Donald who had occasionally worked in the store,
and employee Wells, a good friend of Robert, went for a
ride in Wells' car. Robert and Wells testified that the
latter had invited them to go for a drive before dinner and
that they had taken Robert's 75-pound German shepherd
dog along . Robert first testified that he was driving, that
they happened to pass the motel , and that he recognized
Vigil's car . Later, he testified that Wells was driving.
Wells testified that he was driving and that it was he who
first recognized Vigil's car . Robert further testified that
Whorton had instructed him not to discuss union matters
with store employees , especially during the 24-hour period
preceding the election ; that because he felt that the same
prohibition should apply to union agents, he decided to
investigate the reason for the presence of Vigil's car at the
motel; that he went to the motel door, which he found
open ; that upon seeing Vigil and Aragon , he entered the
room " and asked the Board agent to identify himself; and
that upon being informed by the agent that he was
employed by the Board , Robert wrote the information on
a piece of paper and then left with his companions. Upon
arriving home, Robert informed Whorton of the incident.
Robert and Wells both testified that they had not been
instructed to engage in surveillance , and Whorton denied
having given such instructions.
The General Counsel contends that Respondents , acting
through their agents Robert and Donald, engaged in
unlawful surveillance of the . conference between
Employees Vigil and Aragon and a Board agent.
According to the General Counsel, Robert and Donald
should be regarded as Respondents ' agents because it is
reasonable to infer that they acted on instructions from
their parents . In the alternative , the General Counsel
argues that because of Robert's employment at the store
and its small size, his relationship to Respondents would
be known to the other employees; that in view of
Respondents' other unlawful pre-election , conduct, Robert
should be regarded as Respondents' agent ; and that
Donald should be regarded as their subagent . Respondents
assert that the facts do not establish surveillance; that
even if they did, the conduct shown was not directed or
authorized by Respondents ; and that Respondents have
found no case holding that it is an unfair labor practice to
engage in surveillance of a Board agent.
Although the circumstances are suspicious, the record
before me is insufficient to support a finding that Robert
The testimony regarding such interrogation was brought out on
cross-examination by counsel for Respondents. I place no reliance upon the
Rodriquez affidavit which was received in evidence.
"Wells and Donald followed with the dog, but remained at the door.
Robert testified that "the dog gets very excited when people leave the car
and he doesn 't get to go, too."
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Donald acted on instructions from Respondents.
-However , I find that their conduct , whether or not
engaged in with pure motives, was such as to give Vigil
and Aragon the impression that their protected activities
were under surveillance ." In addition , Robert's and
Donald 's relationship to Respondents was known to the
employees ." In view of that relationship , Vigil and
Aragon could reasonably believe that Robert and Donald
were acting as their parents ' agent , especially since it does
not appear that Respondents disavowed their sons'
conduct . In such circumstances , Respondents are
chargeable with the consequences of such conduct . Piggly
Wiggly El Dorado Co., 154 NLRB 445.
I find that by the conduct of Robert and Donald
Whorton, Respondents violated Section 8(a)(1).
3. The increase in employee benefits
Between April 19, the filing date of the petitions for
certification , and June 12 , the date of the elections,
Respondents increased the wages of some employees and
began paying the Blue Cross insurance premiums of
others . Respondents contend that they followed their
normal practice in granting these benefits . The General
Counsel contends that Respondents had no fixed or
consistent policy or practice governing wage raises and
payment of insurance premiums ; that they followed no
timetable and had complete discretion as to whether and
when to-evaluate the employees ' performance and reward
them ; and that in view of Respondents ' other unlawful
conduct , it is reasonable to infer that the increased
benefits were given to induce the employees to vote
against unionization.
Whorton testified that employees are hired on a trial
basis; that if a new employee shows a willingness to work
and learn , he is retained ; that as he progresses he receives
wage increases; but that there are "no set time period" in
which such increases are given . Mrs. Whorton testified
that if a new employee was "worthy of it," he received a
raise during the first 3 months of his trial period ; that he
received at • least four raises during his first year and
periodic raises during his second year depending on his
progress ; that thereafter raises were governed by the
responsibility assumed by the employee , by the type of
work he did , and by the amount of his earnings ; and that
the older employees received fewer raises than the new
ones.
It thus appears that although Respondents had no fixed
timetable or standards for granting merit increases, it was
their practice to give such increases at fairly frequent
intervals to new employees who showed promise. The
record shows the following regarding the number of merit
increases (wage raises and assumption of Blue Cross
premium payments) given to employees between the filing
of the petitions and the elections (i.e., between April 19
and June 12 ), and those granted during the comparable
immediately preceding period ( i.e. from December 9,
1967, through February 17, 1968):"
Critical period
Number of
Merit Increases
Comparable
Prior Period
Number of
Merit Increases
April 20 2 December 9, 1967 1
April 27 4 January 20, 1968 2
May 25 2 Jariuary 27 2
June 1 1 February 17 3
Between April 19 1 February ? 1
and June 12
10 9
The great preponderance of the increases consisted of
$2.50 wage raises; one increase was a $5 wage raise; two
of the merit increases (given on April 27) involved
assumptions of Blue Cross premium payments amounting
Employee Hired
to a little over $20 a month each; and two increases
involved wage raises in amounts not disclosed. The
distribution of the increases among the employees was as
follows:"
Increases During Increases During
Comparable Period Critical Period
P. T. Garza 11-7-67 3 2
J. L. Torres 11-16-67 2 1
Aragon 1965 1 -
R. Garza 9-29-66 1 -
R. R. Torres 1965 or earlier 1 1
Allemand 1-11-68 1 1
Maestas , Sr. About 1960 - 1
Waring March 1965 1
Flores About 1958 1
Romero
Vigil
April 22 or 23
3'- 17-65
"Hendrix Mfg. Co., v. N.L.R B, 321 F.2d 100, 104 (C.A.5); N.L.R B
v Prince Macaroni Mfg. Co. 329 F 2d 803 , 805-806 (C.A. 1). That
impression was heightened by the presence of the dog.
"See, e .g. the testimony of Lujai and William S . Flores.
"The data shown is based on Appendix A, attached hereto . The record
contains little evidence respecting merit increases prior to December 9.
1967.
"Most of the testimony relating to such benefits was given by Mrs.
Whorton and is largely uncontradicted . The General Counsel asserts that
WHORTON'S FOOD MARKET 661
Based upon an analysis of the foregoing increases, I am
unable to conclude that the pattern of merit increases
during the critical period was significantly different from
that shown during the prior comparable period. The
record does not show a disproportionately greater number
of increases , a significant change in the amount of the
increases , or any unusual acceleration of frequency of
increases . Moreover, there is nothing in the record to
show that the recipients of the increases were selected on a
basis indicating any relationship to union activities. In
these circumstances , I find that the General Counsel has
failed to meet his burden of establishing that in granting
the merit increases during the pertinent period,
Respondents had deviated from prior practice and were
unlawfully motivated . Cf. Aircraft Engineering Corp.,
172 NLRB No. 218. Accordingly, the allegation relating
to wage increases should be dismissed.
4. Disparagement of Board process
Employee Vigil, who had been an observer for the
Retail Clerks at the election , testified that on the day
following the election , Whorton told him "to take a good
look" at the election notice and sample ballot affixed to
the door of the store office, to take it home with him, and
when he "got tired of looking at it (he] could wipe [his]
ass with it ." Whorton denied making any disparaging
remarks to Vigil concerning the Board, and testified that
on the day following the election , he told Vigil "to take
the election things off of the door , it was over now, to roll
them up and throw them away or whatever else he wanted
to do with them."
The General Counsel contends that Vigil's testimony
should be credited, and that the statement attributed by
Vigil to Whorton constituted unlawful interference with
the employees ' right to select their bargaining
representative , since it degraded the Board 's processes and
indicated to Vigil the futility of seeking the protection of
such processes. Based upon Whorton's self-contradictions
and the demeanor of the two witnesses , I accord greater
credence to the testimony of Vigil than to that of
Whorton, and find that Whorton made the statement
attributed to him. However , I find that the statement was
not unlawful since it contained no threat of reprisal or
promise of benefit . I do not agree that it indicated that
resort to Board process was futile . Rather, the statement
appears to be nothing more than a crude • and vulgar
indication of triumph and satisfaction over the outcome of
the election. I therefore find that it was protected by the
free speech provisions of Section 8(c) of the Act.
B. Discrimination
Respondents received the petitions for certification on
April 20. On April 22, Louie Lopez was discharged. On
or about April 23, Lujan was reduced to part-time work,
and on May - i1, he was told that nis services were no
longer needed. The elections took place on June 12. On
June 14 , Joe LeRoy Torres and Baca were reduced to
part-time status . On June 15 and 20, Mrs. Whorton told
Baca and Torres , respectively, that she would call if she
needed them , but did not do so thereafter. The alleged
discrimination relating to -the four employees is discussed
immediately below.
1. Louie Lopez
Lopez began working in Respondents ' grocery
department in the latter part of 1966. On April 7, 1968,
he expressed the opinion to a number of fellow employees
that their pay was inadequate and invited them to meet at
his home the next night to discuss the subject. Some 8 to
10 employees went to the meeting on April 8. After some
discussion , it was decided that Lopez should obtain
information on how the men could unionize . On April 9,
he communicated with Montoya, an employee of another
store, who came to Respondents ' store on the following
day and told Lopez about a forthcoming meeting of the
Retail Clerks at a local bank building on April 18. Lopez
transmitted this information to Respondents' other
employees . On April 18, representatives of the Retail
Clerks and of the Meat Cutters met with a tiamber of
Respondents' employees , most of whom signed union
authorization cards, including Lopez. On April 19, the
Retail Clerks and the Meat Cutters filed their respective
petitions for certification . On the same day, employee
Bachert signed a Retail Clerks card and returned it to
Lopez either at Respondents' store or at Bachert 's home.
On April 20, employee George Lopez signed a card and
returned it to Louie Lopez at the store.
In their brief, Respondents defend the discharge of
Lopez upon two grounds . They first contend that they had
a good faith belief that he was a supervisory employee,
and that it was not until July 18, i.e., some 3 months after
the discharge, that the Regional Director determined that
Lopez was a rank-and-file employee . They further contend
that Lopez was discharged because of unsatisfactory work
performance.
Respondents do not claim that Lopez was in fact a
supervisor . Indeed , they stipulated at the hearing that he
was within the bargaining unit which the Retail Clerks
claimed to represent. I find that he was a rank-and-file
employee . Accordingly , if his discharge was for a reason
proscribed by the Act, the discharge would not be excused
even if Respondents had a good -faith belief that Lopez
was a supervisor . Cf. N.L.R.B. v. Burnup & Sims, 379
U.S. 21; Federal Envelope Co., supra, 147 NLRB 1030,
1036.
With regard to the claim of poor work performance'of
Lopez, Respondents introduced in evidence certain figures
showing the ratio of gross profit to net sales for each of
16 weeks, from January 2 through April 20, in their
produce department where Lopez was employed. Mrs.
Whorton testified that these profit ratios were
unsatisfactory, and that Lopez was responsible because of
his failure "to take care of his merchandise properly."
The figures are as follows:
Baca received a $2.50 wage increase on June 1. Mrs. Whorton testified
that since the entry to that effect on her business records had been crossed
out, it was erroneous. I credit her testimony . She further testified that
Respondents began paying one-half of Robert J. Garza 's Blue Cross
premiums on September 16, 1967, and assumed payment of the balance
beginning May 4, 1968. Garza testified that Respondents had been paying
the entire premium since October 1967. The General Counsel contends,
and I agree , that it is likely that Garza's personal knowledge of such a
matter would be more accurate that Respondents ' records which, the
evidence shows, were not wholly accurate.
Week Ratio
4/15to4/20 16.97%
4/8to4/13 15.60%
4/ 1 to 4/6 24.86%
3/25 to 3/30 10.64%
3/ 18 to 3/23 16.97%
3/ 11 to 3/ 16 14.86%
3/4 to 3/9 21.86%
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2/26 to 3/2 23.27%
2/ 19 to 2/24 20.90%
2/12to2/17 22.33%
2/5to2/10 21.39%
1/29to2/3 17.92%
1/22 to 1/27 20.75%
1 / 15 to 1/ 20 19.86%
1/ 8 to 1 / 13 22.96%
1/2 to 1/6 24.75%
Mrs. Whorton also testified that she paid Lopez a bonus
whenever the produce department earned "what it should
have," i.e., that she paid him a bonus of $2.50 for any week
in which the ratio was as much as 20 percent, and $5.00 for
any week in which the ratio reached 25 percent.
It will be seen from the above table of ratios that
during the 10 weeks from January 2 through March 9, the
produce department earned a profit ratio of more than 20
percent in 8 of the weeks , and a profit ratio of just under
that figure in one week . However , during the 6 weeks
from March I l through April 20, the profit ratio exceeded
20 percent only in one week , and was as low as 10.64
percent in one week . Assuming that the work performance
by Lopez was responsible for the earnings of the produce
department , the figures do show a reduction in profit
ratio. But such a reduction cannot be evaluated without
also considpring the fact that Lopez was promoted to the
job of "manager" (a nonsupervisory job) about 5 months
after he was hired ; that he had worked for Respondents
since the end of 1966 ; and that Respondents did not
furnish profit ratio figures for the produce department
during 1967. If the 1967 figures equaled or exceeded those
during the above-mentioned 10-week period , then the
reduction during the ensuing 6-week period assumes a
somewhat different perspective . For where an employee
has performed satisfactorily for a considerable period of
time, it would seem unusual to discharge him because of a
profit decrease during 5 of the 6 weeks preceding the
discharge, particularly since the profit ratio during the
remaining week in that period was the highest shown by
the record . That being so, it was incumbent upon
Respondents to go forward with evidence showing the
profit ratios during 1967, inasmuch as such information
was most accessible to them . Cf. M & R Investment Co.,
Inc., 173 NLRB No. 109. Since Respondents have failed
to go forward with such evidence, their claim of poor
work performance loses much of its force.
At the hearing , Respondents ' counsel stated that it was
their position that Lopez should have been discharged 3
months earlier but that a replacement had not been found.
Employee Maestas , Sr. testified that 2 months before the
discharge, Mrs. Whorton complained about the poor
produce department profit and asked him to investigate
whether- the sales checkout clerks were making errors in
the prices charged ; that after talking to the clerks and
investigating the matter for 2 weeks, profits continued
poor ; that about a month before the discharge , he began
looking for a replacement upon Mrs. Whorton's
instructions but had no success; that Mrs. Whorton tried
to give Lopez another chance to show improvement but
profits still continued poor ; that about three weeks before
the discharge, Mrs. Whorton asked him whether he had
found a replacement ; that he informed her that it was
difficult to find a good man; and that she told him at that
time that she was going to let Lopez go.
It is apparent from the profit figures and the bonuses
paid to Lopez, however , that the profit ratios could not
have become unsatisfactory to Respondents until a few
weeks prior to his discharge , and not 3 months or even 2
months earlier . Moreover, based on his demeanor, I do
not credit Maestas' testimony concerning Mrs . Whorton's
alleged expression of intention to let Lopez go. In
addition , although counsel for Respondents initially stated
that it was their position that Lopez was discharged for
poor work performance , he later added that it was their
position that the discharge of Lopez was also motivated
by the fact that he spent considerable time talking to a
female friend who visited him at the store , and certain
"rumors" that they heard about Lopez . The record
contains no evidence to support either the accusation,
which Lopez denied , or the rumors, and no evidence that
the alleged conduct and the rumors were brought to the
attention of Lopez . On the contrary , the record establishes
that Mrs. Whorton referred only to poor work
performance at the time she discharged Lopez. This
addition of unproved reasons for discharge suggests that
they were an afterthought.
I find the reasons advanced by Respondents for the
discharge of Lopez to be unpersuasive . On the other hand,
the record establishes that Lopez instigated and was the
ringleader for the union movement among the grocery
employees at the store . He held an organizational meeting
at his home on April 8 and openly attended the union
meeting at a bank building on April 18 . In fact , Montoya
went to Respondents ' store on April 9 to inform Lopez of
the latter meeting . Moreover , on April 20, Employee
George Lopez signed a Retail Clerks authorization card
and gave it to Louis Lopez at the store . Although there is
no direct evidence that Respondents knew of such activity,
such knowledge may be inferred . The Circle K Corp., 173
NLRB No. 107. Here, the record shows that
Respondents' work force at the store consisted of some 19
employees . I also take official notice that the store is
located in a small community ." Moreover, Lopez was
discharged 4 days after the union meeting and 2 days (the
first working day) after Respondents received the petitions
for certification . I find that the small size of the store and
of the community as well as the timing of the discharge
furnish an adequate basis for inferring that Respondents
were aware of Lopez' affiliation with the Retail Clerks.
Century Lumber Company, Inc., 168 NLRB No. 36;
Sperti Sunlamp Division , Cooper-Hewitt Electric Co.,
Inc., 162 NLRB No. 158."
Considering the inadequacy and the shifting nature of
the reasons given for the discharge , Respondents'
awareness of the union activities of Lopez , the timing of
the discharge, the fact he was given no warning of a
possible discharge , and Respondents' other unlawful
conduct, I find that the discharge was motivated by such
union activity, and hence that it violated Section 8(a)(3,1
and (1) of the Act.
2. Thomas A. Lujan
Lujan was hired as a full-time employee by
Respondents in March 1966 and worked in the meat
department . During January , February and March 1968,
he worked about 501h hours a week, and apparently
"The 1960 populations of the city and the town of Las Vegas, New
Mexico (which are contiguous), were 7,790 and 6,028 respectively. World
Almanac (1%9 ed.), p. 622.
"in this connection, I note that the conference which a Board agent held
with Employees Vigil and Aragon did not escape notice, and was brought
to Respondents' attention. I further note that, as found above, Mrs.
whorton asked Padilla, Aragon and Robert Garza why they had signed
authorization cards, a question which led Padilla to express the view that
Respondents had probably found out about their signing.
WHORTON'S FOOD MARKET
continued to work full -time during most of April. He
testified that on,or about April 23, Whorton informed him
that pursuant to his doctor 's authorization , he intended to
become more active in the store , and that he accordingly
would not need Lujan full-time ." On direct examination,
Whorton testified in response to a leading question that he
so informed Lujan about the middle of May.18 On
cross-examination , he testified that he received the
doctor 's authorization in March or April and could not
explain why he waited until May to inform Lujan about
part-time work. On direct examination, Whorton further
testified that when he informed Lujan of the change in his
status , Lujan stated that he knew the reason therefor and
that matters would be straightened out; that Whorton did
not know what Lujan was talking about ; and that
Whorton accordingly replied , " I guess so." On
cross-examination, Whorton testified that Lujan's
response was: "I think I know the real reason and pretty
soon the Union or somebody will have it all straightened
out." In addition, Whorton admitted that he knew what
Lujan was referring to. Lujan testified that Whorton's
rejoinder was, "You are damn right, things are going to
straighten out."
Lujan then left the store but later returned to give
Whorton a key. According to Lujan's testimony, he saw
another employee, Romero, doing the work which Lujan
had been performing. Romero testified that he began
working in the store's grocery department on April 22,
that he did not recall the date of his transfer to the meat
department, but that he thought the change took place
about a week or two after he was first hired. Employee
Flores testified that Romero was working in the grocery
department at the time of Lujan's change to part-time
status, and that Romero immediately replaced Lujan.
Thereafter, Lujan worked considerably less than 40 hours
a week until the latter part of May.
As already found, Whorton told Employees Flores and
Torres on April 24, the day following Lujan's reduction,
that he would convert the meat department into a
self-service operation if the Meat Cutters won the election.
According to the credited testimony of Flores, Whorton
further stated that "he was going to lay [Lujan] off
because he was a loud mouth and he was a trouble
maker." Lujan testified that when he reported for work on
the afternoon of May 29, Mrs. Whorton told him that she
had needed him that morning; that he replied that she had
instructed him to report in the afternoon; and that she
contradicted his statement and informed him that she
would not need him any more. When Mrs. Whorton was
asked by Respondents' counsel whether the conversations
described by Lujan took place, she testified: "My husband
took care of telling him when to come in and when not to
come n; ! didn't have anything to do with that."
On Memorial Day, May 30, Whorton received a
telephone call from one Williams, who was the owner of a
meat store in Las Vegas, who resided next door to
Whorton, and who has been the latter's friend for 25
years. Whorton testified that Williams told him that one
of his butchers was leaving and that he needed a
replacement; that Whorton responded affirmatively when
Williams inquired whether Lujan was working part time;
that when Williams asked whether he needed Lujan,
Whorton replied that he did not but "didn't think he
would go to work for him because he was tied upon with
"Whorton had been very ill with mental and physical impairments since
1965, and had not worked in the store for a considerable period of time.
"Whorton admitted having difficulty remembering dates of events.
663
this Union deal." Williams testified that he was informed
by Whorton that Lujan was working at the store only one
day a week; that the same day, in response to a note
which he left at Lujan's residence, Lujan came to see
Williams. at which time he offered Lujan a job; that
Lujan said he could not work on Saturdays because he
worked one day a week for Whorton; that he sought to
persuade Lujan to accept "a steady job"; and that Lujan
agreed to report for work the following day, May 31.
Lujan worked for Williams on the latter date. Whorton
testified that Williams called him on the same morning,
and informed him that Lujan had accepted a full-time job
and was then working.
Lujan testified that at the end of the day, he told
Williams that he "might" see him in the morning, and
left. Flores testified that on a date he could not recall,
presumably May 31, Whorton told him that Lujan was
working for Williams full time, and instructed him to get
Lujan 's tools ready to be picked up by the latter; that he
went to see Lujan that evening and informed him of what
Whorton had said; that he also told Lujan that he could
not be a member of the Meat Cutters local at
Respondents' store if he worked full time for Williams;
that when Lujan asked whether it would be a good idea to
see Whorton, he replied in the affirmative and suggested
that Lujan have a witness present during his conversation
with Whorton. Lujan corroborated this testimony, adding
that Torres was present during his conversation with
Flores; and that although he did not recall, they might
have told him that he was "lousing [his] job up with the
NLRB by going to work for Williams."
According to Williams, while he was eating at the
Silver Spur Drive-In that night, Lujan entered and
announced that he was quitting and did not intend to
return to work for him. Lujan testified that he saw
Williams at the Silver Spur, that the latter admitted that
their agreement was for part-time work only, that
Williams denied any arrangement with Whorton to fire
Lujan, and that he told Williams he was not going to
work for him.
Whorton testified that that night, while he was getting
ready to close the store, Lujan arrived with another
individual and asked whether Whorton would need him
the following day; that Whorton replied that he did not
and that Lujan had accepted a full-time job with
Williams; that Lujan then asked if he was fired; that
Whorton answered that he was not fired but had quit; and
that Lujan insisted that he was being fired and Whorton
insisted he had quit. Lujan's version of the conversation
was substantially the. same , adding that Whorton said that
he had been told by Williams that Lujan was working full
time for him, and that he told Whorton that he had
accepted only a part-time job. Lujan has not been
employed by Respondents since that time.
The General. Counsel contends that Lujan was placed
on part-time status and later discharged for discriminatory
reasons. Respondents contend that his hours were reduced
because Whorton's increased activity at the store had
diminished the need for Lujan' s services , and that Lujan
was not discharged thereafter but rather quit his job. I
agree with the General Counsel.
I reject Whorton's unexplained testimony that he
reduced Lujan to part-time status in mid-May and find
that the event took place on or about April 23. I also
reject the unconvincing explanation that Lujan's full-time
services were not needed, inasmuch as employee Romero,
who had lust been hired for work in the grocery
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department . then began working in the meat department.
The record leaves in some doubt the exact date when
Romero began his new duties . But even if he began them
about a week after the change in Lujan 's status, no reason
appears to explain why Romero was used in the meat
department if Lujan's services were not needed.
Moreover, I am not persuaded that Whorton in fact
believed that Lujan had quit when he told the latter on
May 31 that he did not need his services . The record does
not establish that Lujan had accepted full-time
employment with Williams ;` and, considering the
contradictions in Whorton's testimony as well as his
demeanor , I regard him as an unreliable witness and do
not credit his testimony that he was informed by Williams
that Lujan had accepted a full-time job. In this connection
I note that Whorton's testimony was not corroborated by
Williams. Furthermore, Lujan at no time told Whorton
that he was quitting his job. On the contrary, his inquiry
on the night of May 31 as to whether Whorton needed
him the following day showed that he was still ready and
willing to continue working for Respondents .r° Thus,
Whorton 's insistence that he could no longer use Lujan
because he had quit was an obvious pretext seized upon to
eliminate a union proponent from the meat employees
unit prior to the forthcoming election . This conclusion is
buttressed by Whorton's earlier statement to Flores and
Torres that he intended to lay off Lujan.
The record shows that Lujan attended the
organizational meeting at the home of Lopez and the
union meeting at the bank building , where he signed a
Retail Clerks authorization card. There is, of course, no
doubt that Respondents were aware of Lujan 's union
affiliation when they discharged him on May 31. It is also
reasonable to infer that they were aware of such affiliation
at the time they reduced him to part-time status. It is
undisputed that at that time, they had knowledge, through
the petitions for certification received on April 20, of the
organizational activities of the store employees . On April
22, they discriminatorily discharged Lopez, and on the
following day Lujan' s reduction in status took place. Like
Lopez, he worked in a small store in a small community
where his activities , such as attending union meetings,
could easily be observed." I accordingly find that the
record provides an adequate basis for inferring that
Respondents were aware of Lujan's union affiliation. And
in view of the pretextual reasons given for Lujan's
treatment and the timing of such treatment in relation to
Respondents ' other unfair labor practices , the record
establishes a prima facie case of unlawful discrimination
against Lujan which Respondents have failed to rebut. I
therefore find that his reduction in status and subsequent
discharge were motivated by his union affiliation , and that
Respondents thereby violated Section 8 (a)(3) and (1).
"Among other things , Williams ' attempts to persuade Lujan to accept
full-time employment shows that the latter was reluctant to work full time
for him . Moreover , if Lujan had wanted and accepted a full-time job with
Williams , it strains credulity to believe that he would have left such
employment after one day , and then seek to regain a job working only one
day a week for Respondents . It is also significant that Williams did not
contradict Lujan 's testimony that he admitted the part -time status of
Lujan's job.
"In view of Whorton's assertion of an alleged belief that Lujan had
accepted full-time employment with Williams Lujan apparently deemed it
essential to demonstrate to Whorton that he was still available for work. It
is immaterial whether Lujan may have wanted to continue working for
Respondents in order to remain a member of the Meat Cutters and to be
eligible to vote in the election
"See In . 16, supra
3. Joe LeRoy Torres
Torres was hired in November 1967 as a full-time
employee at $ 50 a week in the grocery department. On
January 20 , February f7 and April 20, 1968 , respectively,
he received pay increases of $2.50. Torres testified that he
worked 54 hours a week until June 14 , i.e., 2 days after
the election , on which date he was reduced to part-time
work amounting to about 24 hours a week ; that on June
20, Mrs . Whorton informed him that business was
"getting slow," that she did not require his services, that
she would notify him if she needed him; and that he has
not been employed by Respondents since June 20. He
further testified that his address was known to
Respondents.
Mrs. Whorton testified that she hired Torres as a
full-time employee and that he worked full time until
April 20, when he was reduced to part -time work because
she had too many employees ." She further testified that
Torres received a salary of $57.50 a week during the
period between April 18 and June 12. According to her
testimony , she feared that the Retail Clerks would file
unfair labor practice charges if she laid off employees
whom she did not need , asked her attorney what do do
with all her employees , and was advised to run her
business as she felt she should and to lay-off unneeded
employees . Finally, she testified that she hoped that
Torres would be a satisfactory employee, but that he did
not fulfill her expectations.
The General Counsel contends that Torres was reduced
'to part-time work on June 14 and then discharged on June
20 because he was a union adherent . Respondents assert
in their brief that he was reduced to part-time status on
April 20 because they had more employees than were
needed , having refrained from laying some off in order to
avoid unfair labor practice charges ." I agree with the
General Counsel.
The record clearly establishes , and I find, that Torres
was reduced to part -time status on June 14, and not on
April 20 as testified to by Mrs. Whorton and claimed in
Respondents ' brief . Indeed , she admitted paying him
$57.50 a week , i.e., full-time pay, as late as June 12. Such
erroneous testimony on her part seriously weakens her
claim that his full-time services were not needed at the
time he was reduced in status on June 14 . Apparently
realizing the weakness of her position , Mrs. Whorton
testified that Torres was an unsatisfactory employee,
thereby implying that Torres was selected for reduction in
status for that reason ,. I find, however, that the claim of
unsatisfactory performance is without support in the
record , which shows that Torres received three pay
increases . I further find that Torres was discharged on
June 20 , a matter not disputed by Respondents and not
discussed in their brief . Although , as Torres testified, Mrs
"Mrs Whorton testified : "On the first of the month , we have all the
employees that we need for the first week , but we don 't need them all the
time." Torres and Employee Baca admitted that business fluctuated at the
store Baca testified that the store was very busy during the first week and
a half of the month , slows down until about the 15th when it picks up, and
decreases again until the latter part of the month
"When asked at the hearing to state Respondents ' position respecting
the alleged discharge of Torres, counsel for Respondents replied that
Torres was a part-time employee , was never "discharged or anything", that
he "just quit coming around even wanting to work or anything ," that he
"would come in and check and see when [he) would be needed again. They
don't need them all the time . The first two weeks of the month they need
more employees more than they do the last two weeks of the month."
WHORTON'S FOOD MARKET
Whorton told him that business was slow at the time she
let him go, Respondents have given no explanation for
selecting Torres for discharge from among the allegedly
surplus employees . As in the case of his reduction in
status, there is no record support for an inference that his
selection for discharge was motivated by unsatisfactory
work performance.
Although the discharge occurred after the election, its
timing is not without significance. The initial count of the
ballots cast in the June 12 election in the grocery unit was
6 to 5 against the Retail Clerks, with two challenged
ballots . On June 17, objections to the election were filed
Three days later, Torres was discharged . It is apparent
that if the objections were sustained and a new election
held, elimination of even one union proponent would aid
in avoiding a reversal of the initial result of the voting. On
the other hand, if the objections were overruled and the
vote against unionization were sustained , elimination of a
union adherent would obviously be useful in preventing a
subsequent attempt to unionize.
Torres engaged in substantially the same union
activities as Lujan. For substantially the same reasons as
those set forth with respect to the latter, I find that the
record provides an adequate basis for inferring that
Respondents were aware of Torres' union affiliation. And
in view of my above conclusions respecting Respondents'
failure to give a persuasive explanation for his reduction
in status and discharge, as well as the timing of the
discharge and the other unfair labor practices , I find that
the record establishes a prima facie case of unlawful
discrimination against Torres which Respondents have
failed to rebut. I therefore find that the reduction in
status and subsequent discharge were motivated by his
union affiliation, and that Respondents thereby violated
Section 8 (a)(3) and (1).
4. Thomas Baca
Baca worked for Respondents for a short time in 1965
or 1966 , was inducted into the armed forces, and
following his discharge sought reemployment from
Respondents in the early spring of 1968. About a week
later, he was told by Respondents that he could work at
the store for a temporary period , and begun working as
"stock and carryout " on May 6 on a full-time basis; i.e.,
about 9 hours a day, 6 days a week , until June 14. On
that day, he was reduced to part-time status, and worked
about 5 hours . 24 Mrs . Whorton testified that because she
feared unfair labor practice charges, she had "just kept
him until a time when [she] could put him on part time."
At approximately noon on June 15, Mrs. Whorton told
Baca that business was "too slow" and that she would call
him if she needed him. Baca testified that on the same
day, he "passed through the store and [he] saw a couple
of other guys carrying out, new guys ." Apparently Baca
was not thereafter recalled by Respondents , nor did he
ever return to the store . Baca testified that he could have
been reached on his aunt 's telephone , that the number was
on his employment application , and that Mrs. Whorton
had called him on that number at times . Mrs. Whorton
testified that Baca "has no telephone." In response to an
inquiry as to whether she made any effort to reach Baca,
Mrs. Whorton testified that many school boys were
available for part-time work at the store.
The General Counsel contends that Baca was reduced
"Mrs. Whorton testified that Baca was placed on part-time status on or
about June 14 , and then stated that the change occurred on June 22.
665
to part-time status on June 14 and constructively
discharged on June 15 because of his union activities.
According to the General Counsel , Respondents'
knowledge of such activities should be inferred . Baca's
union activities consisted of attending three union
meetings after he began working on May 6 : one at the
home of Louie Lopez , another at a bank building, and a
third at a motel.21 He did not, however , execute a union
authorization card . Respondents argue that there is no
showing that there was any reduction in Baca's status
between April 20 and June 12, i.e., between Respondents'
receipt of the petitions for certification and the election. I
find that the General Counsel has failed to sustain his
burden of establishing discrimination against Baca.
Baca's testimony that he saw new employees
performing carryout work the day he was laid off is
uncontradicted , and Respondents have failed to explain
that circumstance . Nevertheless , I find the record
insufficient to permit the conclusion that either the layoff
or Baca 's reduction in status was related to union activity.
For although Respondents ' knowledge of Baca's union
activity may be inferred , there were two important
differences between his situation and that of Lopez, Lujan,
and Torres . Unlike them , Baca did not execute a union
authorization card . Moreover , even if he were inclined to
vote for the Retail Clerks in an election, he could not do
so for, being a temporary employee, he would not be
included in the grocery employees bargaining unit.26
Accordingly, there was no compelling union-related reason
for Respondents to rid themselves of Baca . Since the
General Counsel has not made a prima facie case of
unlawful discrimination against Baca, Respondents ' failure
to explain their treatment of Baca is not fatal. The
allegation relating to Baca should be dismissed.
11. THE OBJECTIONS TO THE ELECTION IN CASE
28-RC- 179,
A. Findings Respecting Each Objection
1. Based upon findings made above, I find that there is
no merit to Objection 5 relating to merit increases, to so
much of Objection 7 as alleged threats by Mrs. Whorton,
to so much of Objection 12 as relates to Whorton's
remarks concerning the election notice, and to so much of
Objection 13 as relates to Baca and to Torres." There is
no evidence to support, and hence no merit to, the
remaining allegations in Objection 12 or to the allegation
in Objection 13 relating to Bachert.
2. Based on findings made above, I further find merit
to Objection 2, to so' much of Objection 7 as relates to
threats by Whorton, and to Objection 11.
3. I also find merit to Objection 8, relating to a
coercive sign allegedly prepared upon authorization by
Respondents . The evidence relating to the sign is as
follows. Employee Vigil testified that "some time before
the election", he saw Employee Maestas, Jr. making a
sign in the back room of the store near the freezer; that
the sign was about 8 or 9 feet long ; that he did not recall
the exact wording of the sign but that it read "Forced to
"Baca testified that he auenuea no union meetings in April. The record
establishes that there was about four additional union meetings between
April 24 and June 12 , including some at Lopez' home.
"Pacific Tide and Procelain Co.. 137 NLRB 1358, 1365, Post Houses,
inc., 161 NLRB 1159, 1172
=The discrimination against Torres occurred after the election and may
not be considered.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close for unfair labor practices" or "something similar to
that"; that the sign remained in the back room for almost
an hour ; that he did not know what became of the sign;
and that the sign was different from another sign which
stated that the store would be closed for Memorial Day.
Employee Aragon testified that while he and several
other employees were working in the back room of the
store before the election , he saw Maestas, Jr., making a
sign ; that Maestas had a "little paper" containing words
which he was duplicating on the sign ; that the sign
consisted of red paint on a long piece of white butcher or
wrapping paper ; and that he thought Employee Padilla
also saw the sign. On direct examination by the General
Counsel, Aragon testified that the sign "read something
like 'Forced to close unfair , by the National Labor
Relations Board '." On cross-examination, Aragon testified
as follows:
Q. What did you actually see on that big sign?
A. The word "Forced". He hadn't finished it yet.
s s s s s
Q. "Forced to close"?
A. That' s right.
Q. You' re sure of that?
A. I'm sure.
Finally , he testified that Maestas had also made a second
sign stating that the store would be closed on Memorial
Day.
Employee Padilla testified that sometime before June 8,
he saw a sign in the back room of the store ; that at the
time he saw it, "nobody was making it"; that the sign was
folded and the only words he saw on it was "Forced to
close". On cross-examination by Respondents , he testified
as follows:
Q. Could this have been a sign that said Whorton's
was closed for Memorial Day?
A. I don' t know , sir. The sign was being rolled up
when I saw it.
n # s s s
Q. How much of the sign did you actually see, closed
or forced to close?
A Forced to close.
s s s s s
Q. Who was painting that sign incidentally?
A. I think it was Junior Maestas.
Q. Is that Louie Maestas, Jr.?
A. Yes, sir.
Q. Is he the one you referred to as the regular sign
painter?
A. Yes, sir.
Q. Was he painting the sign at the time you saw it.
A. Which sign are you referring to?
Q. The sign that you were talking about that you
saw on the freezer back there.
A. Yes, sir.
He further testified that he could not recall the date on
which he saw the sign ; that it could have been around the
23rd or 30th of May, that he never saw the sign "posted";
but that in or about the period from May 26 to 30, he saw
a sign on the store window reading "closed for Memorial
Day."
Employee Rodriguez testified that about a month
before the election , in the back room of the store, he saw
a sign reading , "Forced to close because of unfair
demands by the National Labor Relations Board"; and
that he saw Maestas , Jr., "around the sign."
Employee Maestas, Jr., testified that his duties included
painting signs; that during the summer of 1968, he
regularly made the store signs ; that he did not paint sins
on his own initiative but received instructions regarding
signs from Whorton or Mrs . Whorton; that during the
period between April 19 and June 12 ' 'e prepared three
large signs stating that "Whorton's Will Be Closed
Memorial Day"; and that he did not recall ever painting a
sign which referred to the National Labor Relations
Board . He further testified as follows:
Q. Have you ever painted a sign that had the words
or the word "forced" on it?
A. Forced? No, not that I can recall. It might have
been forced meat or forced groceries.
TRIAL EXAMINER: I did not hear that last answer.
THE WITNESS: Unless it was forced groceries or
forced meat. Those are the kinds of signs I paint at the
store.
TRIAL EXAMINER: What does forced groceries mean?
THE WITNESS: Nothing.
TRIAL EXAMINER : Did you ever paint such a sign
which said " forced groceries"?
THE WITNESS: No, Sir.
TRIAL EXAMINER: Why did you just now say that?
THE WITNESS: Because it came out of the top of my
head right now . I said unless.
On cross-examination by Respondents , he gave the
following testimony:
Q. Do you have occasions to have a sign that might
say "Forced Sale of Meat" or "Forced Reduction in
Stock" or something like that?
A. No.
Q. When you said you might have forced groceries
or forced meat, I did not quite follow that. Did you
ever make some sign that said forced meat or
groceries?
A. No, I never did. What I meant there was it was
in answer to his question had I ever used the word
forced and I said no unless I would use it in relation to
meat or groceries.
Q. That would be in the nature of a forced sale or
something?
A. Yes, in that nature.
Q. Did you ever make a sign which said "Forced to
Close?"
A. No, sir.
Employee Maestas, Sr., the father of Maestas, Jr.,
testified that he had never seen a sign at the store
containing the word "forced"; that he had heard rumors
concerning a sign about "the store being closed ", but that
he had not been told anything further on the subject.
Maestas, Jr., who was recalled as a witness , testified that
he had not heard the above rumors and that his father had
made no mention of the rumored sign to him.
The General Counsel contends that the record
establishes that sometime prior to the election, Maestas,
Jr., upon instructions from Respondents , prepared a sign
containing language indicating that Respondents were
forced to close the store by the Board ; that in view of
Respondents ' threats to close the store if it was unionized,
an employee who saw the sign could reasonably interpret
it to mean that Respondents would be forced to close the
store if ordered by the Board to bargain with the union,
i.e., if the Retail Clerks won the election ; and that a sign
so conveying the impression that the employees might lose
their jobs affected the outcome of the election.
Respondents' brief does not discuss the subject of the sign.
WHORTON'S FOOD MARKET 667
Vigil and Aragon both agree that prior to the election,
there was a sign in the back room of the store containing
at least the words "forced to close ." In addition, they
both testified unequivocally that they saw Maestas, Jr.,
painting the sign . The testimony of Padilla and Rodriguez
corroborates the existence of such a sign . Moreover, the
admission by Maestas , Sr., that he had heard rumors
about such a sign tends to lend credence to the view, and I
find , that there was such a sign . Since Maestas, Jr., was
the one who prepared the store signs during the time in
question , and since he did so only under orders from
Respondents , it is a reasonable inference , and I find, that
he painted the sign in question upon orders by
Respondents, " and that the employees who saw the sign
could properly so conclude. Although Maestas, Jr., denied
having painted such a sign , I do not credit his testimony,
which was unconvincing and given in a manner which left
me with considerable doubt concerning its veracity. In
view of the earlier threats to close the store made by
Respondents , as found above , the sign could be construed
as a renewal of that threat. Objection 8 is sustained.
B. Concluding Findings
The conduct alleged in the meritorious objections was
both extensive and flagrant , and requires the conclusion
that the grocery employees ' freedom of choice was
impaired , and that the election should be set aside.
Ill. THE REMEDY
A. I shall recommend that Respondents cease and
desist from their unfair labor practices , and that they take
certain affirmative action designed to effectuate the
policies of the Act.
B. More specifically , I shall recommend that
Respondents offer to Louie Lopez, Thomas A. Lujan, and
Joe LeRoy Torres immediate and full reinstatement to the
positions which they held at the time of the discrimination
against them or to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges . I shall further recommend that Respondents
make each of them whole for any loss of earnings suffered
because of their discrimination against them by paying to
each a sum of money equal to that which would have been
paid by Respondents from the date of the discrimination
against him to the date on which Respondents offer
reinstatement as aforesaid , less his net earnings, if any,
during the said period . The loss of earnings under the
order recommended shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.29
C. As requested by the General Counsel, I shall also
recommend the issuance of an order requiring
Respondents to bargain with the Retail Clerks as the
majority representative of the grocery employees at
Respondents' store. In support of that request, the
General Counsel urges the following considerations. The
record establishes that as early as April 18, a majority of
"in reaching this conclusion, I do not rely upon the Rodriguez affidavit
received in evidence
"The record contains some evidence that Respondents have leased the
meat department to one M . L. Romero, the father of employee Bernie
Romero. Such evidence does not form a sufficient basis upon which a
judgment can be made as to whether in fact Respondents have ceased
operation of the meat department or as to what , if any, rights Lujan may
have against Respondents and/or their successors. Such issues are more
properly to be decided at the compliance stage of this proceeding. Webb
Tractor and Equipment Co.. 167 NLRB No. 46.
such employees had executed valid authorization cards
designating the Retail Clerks as their collective bargaining
representative . The complaint alleges and the record
establishes that between the filing of the Retail Clerks'
petition for certification on April 19 and the election held
on June 12, Respondents engaged in flagrant unfair labor
practices in order to destroy the union 's majority. Such
conduct demonstrates that Respondents sought to avoid
their bargaining obligation . Respondents oppose a
bargaining order on the ground that, apart from the
question of unfair labor practices, employees had little or
no understanding of the significance of the authorization
cards which they signed, and hence that the record fails to
establish • that the Retail Clerks had the necessary
majority. My recommendation of a bargaining order is
based upon the following findings and conclusions:
1. The complaint alleges, the answer admits, and I find
that the following constitutes a separate unit of
Respondents' employees appropriate for the purposes of
collective bargaining under the Act:
All selling and nonselling employees, excluding
guards, watchmen , meat department employees, and
supervisors as defined in the Act.
2. At the hearing , the parties stipulated that the
following 15 employees were the only employees in the
above unit from April 19 through 24:3° Arcenio A.
(Archie) Allemand, LeRoy Aragon, James Bachert,
Patrick Thomas Garza, Robert James Garza, Louie
Lopez, George Lopez, Benjamin R. Padilla, Frank R.
Rodriguez , Jr., Joe LeRoy Torres, Alfonzo Vigil, Laura
Waring, Dan Baker , Louis Maestas, Sr., and Louis A.
Maestas , Jr. On April 18, 19 and 20, the first-named II
of the above employees executed Retail Clerks
authorization cards reading as follows:`
RETAIL CLERKS INTERNATIONAL ASSOCIATION
(Affiliated with the AFL-CIO)
Authorization for Representation
Desiring to enjoy the rights and benefits of collective bar-
gaining I, the undersigned, employee of the
Store Address Store No. (Firm Name)
Employed as
Dept. (Job Title) Home Address
Phone hereby authorize
Retail Clerks International Association, AFL-CIO, or its
chartered Local Union'ito represent me forthe purposes of
collective bargaining, respecting rates of pay, wages, hours
of employment, or other conditions of employment, in ac-
cordance with applicable law.
(Date ) ( Signature of Employee)
There is no evidence that any of those who executed such
a card thereafter withdrew it. Thus, if 8 or more of the
cards were valid, the Retail Clerks possessed a majority in
an appropriate unit during the period between the filing of
its petition and the election.
There is no evidence that any statement was made to
Bachert regarding the purpose of the card, which he
merely took home with him, read, signed and returned to
Louie Lopez on April 19. Since the card on its face
clearly disclosed a purpose to designate the Retail Clerks
as collective-bargaining representative, Bachert's card
constituted a valid authorization.
In the case of George Lopez, he was told on April 20
by Louie Looez that if he wanted to net higher wages, the
The tally of ballots cast at the election recites that the "Approximate"
number of eligible voters in the unit was 17
"Bachert and George Lopez signed on April 19 and 20, respectively
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union would probably help the employees , and that he
was free to sign or refuse to sign an authorization card.
George took the card home , read it, signed it and returned
it to Louie the same day . Louie 's statement amounted to
a particularization of what the card itself stated - that
designation of the union as bargaining representative
would enable it to seek higher wages . The card was valid.
The remaining nine employees signed cards at the
meeting of April 18 . Of these , seven gave testimony as to
what the representatives of the Retail Clerks told them
respecting the purpose of the cards . In addition, such
representatives , Coleman , Martinez , and Olguin, also
testified . Although their respective versions of what was
said differed in varying degrees, none of the testimony
establishes either that the witnesses failed to understand
the cards or what was said to them ." Nor does the record
establish that any misrepresentation regarding the purpose
of the cards was made . According to some of the
witnesses , the representatives of the Retail Clerks stated
that the purpose of the cards was to permit the union to
represent the employees . Other witnesses testified that
such representatives made reference to an election.
Respondents do not contend that the employees at the
April 18 meeting were told that the only purpose of the
cards was to obtain an election , and the record would not
support such a claim . All that the evidence does establish
is that the employees were told, not only that the cards
were for the purpose of enabling the Retail Clerks to
represent the employees , but also that the cards could or
would be used to bring about a representation election.
But as the Board has consistently held, such a statement
does not provide a sufficient basis in itself to violate
unambiguously worded authorization cards on the theory
of direct or even indirect misrepresentation . McEwen
Manufacturing Co., 172 NLRB No. 99, and cases cited
therein.
Respondents argue that the cards were intended by the
Retail Clerks, not to serve as designations of a collective
bargaining representative , but only for the purpose of
showing a sufficient interest to obtain an election. This
assertion is predicated upon the fact that the union never
requested Respondents to bargain, but immediately filed
its petition for certification . This argument was expressly
rejected by the Board in Henry I. Siegel, Inc., 165 NLRB
No. 56.
For the foregoing reasons, I find that 11 of the 15
employees in the grocery unit had signed valid
authorization cards prior to, and that the Retail Clerks
was a majority representative in an appropriate unit at the
time of, the election."
3. I further find that Respondents ' flagrant violations of
Section 8(a)(1) and (3) evidenced a purpose to destroy the
Retail Clerks' majority and thus avoid their bargaining
obligation . Since such conduct has precluded the holding
of a free and fair election , it is necessary, in order to
effectuate the policies of the Act, to remedy their
violations by the issuance of a bargaining order. J. C.
Penny Co. v. N.L.R. B., 384 F.2d 479, 486 (C.A. 10);
HLH Products v. N.L.R.B., 396 F.2d 270 (C.A. 7), cert.
denied 396 F.2d 270."
In view of the foregoing recommendation , I shall
recommend that the petition for certification in Case
28-RC-1797 be dismissed and that all proceedings held
thereunder be vacated.
CONCLUSIONS OF LAW
1. Respondents interfered with, restrained , and coerced
their employees , in violation of Section 8(a)(1) of the Act,
by interrogating employees as to why they had signed
union authorization cards, by interrogating an employee
as to his voting intentions , by threatening to close the
store if the Retail Clerks won the election , by threatening
to convert the meat department into a self-service
operation if the Meat Cutters won the election, and by
creating the impression of surveillance of employees'
protected activities.
2. Respondents engaged in unlawful discrimination, in
violation of Section 8(a)(3) and (1) of the Act, by
discharging Louie Lopez, and by reducing to part-time
status and subsequently discharging Thomas A. Lujan and
Joe LeRoy Torres.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. All of Respondents ' selling and nonselling employees,
excluding guards , watchmen , meat department employees,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of • collective bargaining
within the meaning of Section 9(b) of the Act.
5. At all times material hereto , Retail Clerks
International Association , Local 1564, AFL-CIO, has
been , and is now , the majority representative of the
employees in the aforesaid unit within the meaning of
Section 9(a) of the Act.
6. Respondents did not violate the Act by any conduct
not found herein to constitute an unfair labor practice.
'Although Patrick Thomas Garza did not understand the ramifications
that followed his signing , he understood what the Retail Clerks
representatives meant when , according to his testimony , they stated that
the purpose of the cards was to obtain higher wages through the union's
efforts. Like the card signed by George Lopez , Garza 's card was valid.
Respondents point out in their brief that beer was served during the
April 18 meeting . However , there is no warrant in the record for a finding
that any of the nine employees who signed cards that night was intoxicated
and did not know what he was doing.
"Employee Louie Maestas , Sr., testified that he had consumed an
excessive quantity of peer on April 18 , that he did not recall signing a card
but did remember tilling in portions of one, ana that he was not certain
that the signature on a card introduced in evidence by the General Counsel
was his I Althoug} I I I have doubts concerning the credibility of this
testimony , it is unnecessary to determine whether or not the card should be
counted , inasmuch as the Retail Clerks had a majority in any event. Cf
McEwen Manufacturing Co, supra
in opposing a bargaining coder, Respondents cite Shoreline Enterprises
of America v N L R B, 262 F 2d 933 (C A 5), and N.L R B v. Sumner
Sand & Grave! Co. 293 F 2d 754 (C A 9) Those cases are wholly
inapposite
RECOMMENDED ORDER
Respondents , their agents , successors , and assigns,
shall:
A. Cease and desist from:
(1) Unlawfully interrogating , threatening , and giving the
impression of surveillance of, employees.
(2) Unlawfully reducing the status of, discharging, or
otherwise discriminating against, employees.
(3) In any other manner interfering with. coercing, or
restraining employees in the exercise of any r t' the rights
guaranteed in Section 7 of the Act.
B. Take the following affirmative action:
(1) Offer to Louie Lopez, Thomas A. Lujan and Joe
LeRoy Torres immediate and full reinstatement to their
former or substantially equivalent positions , and make
WHORTON'S FOOD MARKET 669
each whole for any loss of earnings he may have suffered
by reason of Respondents ' discrimination against him, in
the manner set forth in the section herein entitled "The
Remedy."
(2) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces. .
(3) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of this
Recommended Order.
(4) Upon request . bargain collectively with Retail
Clerks International Association , Local 1564, AFL-CIO,
as the exclusive representative of all employees in the unit
found appropriate herein with respect to rates of pay,
wages, hours of employment and understanding is
reached , embody such understanding in a written, signed
agreement.
iJ) rust at tneir place of business in Las Vegas, New
Mexico , copies of the attached notice marked "Appendix
B."3' copies of said notice , on forms provided by the
Regional Director for Region 28, shall , after being duly
signed by an authorized representative of the Respondents,
be posted by the Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecutive
days thereafter , in conspicuous places, including all places'
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered , defaced, or
covered by any other material.
(6) Notify the Regional Director for Region 28, in
writing , within 20 days from tits receipt of this Decision,
what steps they have taken to comply herewith."
It is recommended that the complaint be dismissed
insofar as it alleges unfair labor practices not found
herein.
It is recommended that the petition for certification in
Case 28-RC-1797 be dismissed and that all proceedings
,had thereunder be vacated . It is hereby ordered that the
representation proceeding in that case be, and the same
hereby is , severed from the consolidated proceedings
Therein , and the representation proceeding is hereby
remanded to the Regional Director for Region 28 for
further disposition.
"In the event that this Recommended Order is 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 is 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."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 28 , in writing, within 10 days from the date of this Order, what
steps the Respondents have taken to comply herewith."
APPENDIX A
Employee Hired
Date of
Increased Benefit Amount
Patrick T. Garza 11-7-67 12-9-67 $2.50 a week
Patrick T. Garza (see above) 1-20-68 2.50
Joe LeRoy Torres 11-16-67 1-20-68 2.50
Robert J. Garza 9-29-66 1-27-67 2.50
Ramon R. Torres 1965 or earlier 1-27-68 2.50,
Aragon 1965 2-?-68 not shown
Allemand 1-11-68 2-17-68 2.50
Patrick T. Garza (see above) 2-17-68 2.50
Joe LeRoy Torres (see above) 2-17-68 2.50
Patrick T. Garza (see above) 4-20-68 2.50
Joe LeRoy Torres (see above) 4-20-68 2.50
Maestas, Sr. about 1960 4-27-68 5.00
Waring March 1965 4-27-68 2.50
Flores about 1958 4-27-68 32.85 a month n
Mrs. Whorton testified that Torres received raises similar to those given to Roberti. Garza.
Flores had paid the Blue Cross premiums for about a year. On April 27, 1968, Respondents began paying them in lieu of a
wage increase.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ramon R. Torres (see above) 4-27-68
Allemand (see above) 5-25-68
Patrick T . Garza (see above) 5-25-68
Romero 4-22 or 4-23-68 6-1-68
Vigil 3-7-65 Between 4-19 and
6-12-68
21 or 22 a
month ill
2.50
2.50
not shown
"' Like Flores , Torres had paid the Blue Cross premium for about a year, and Respondents began paying them on April 27,
1968. Mrs . Whorton testified that no other raises were shown for Torres on her records , but that they had not been brought
up to date.
APPENDIX B
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 unlawfully interrogate , threaten, or
give the impression of surveillance of, our employees,
or in any other manner interfere with them in the
exercise of their guaranteed statutory rights.
WE WILL NOT unlawfully discriminate against Louie
Lopez, Thomas A. Lujan, Joe LeRoy Torres, or any
other employee.
WE WILL offer to Louie Lopez, Thomas A. Lujan,
and Joe LeRoy Torres immediate and full
reinstatement to their old jobs and pay them for all
back earnings lost as a result of the discrimination
against them.
WE WILL, upon request bargain collectively with
Retail Clerks International Association, Local 1564,
AFL-CIO, as the exclusive bargaining representative of
all employees in the unit described below , with respect
to rates of pay, wages, hours of employment , and other
terms and conditions of employment ; and if an
understanding is reached, embody such understanding
in a written , signed agreement . The bargaining unit is:
All selling and non-selling employees , excluding
guards , watchmen , meat department employees, and
supervisors as defined in the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining , members of said
Local 1564, or any other labor organization.
Dated By
ROMAYNE H. WHORTON,
RACHEL H. WHORTON,
MRS. R . L. WHORTON,
CO-PARTNERS, d/b/a
WHORTON'S FOOD MARKET
(Employer)
(Representative) (Title)
Note : Notify any of the above-named employees 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.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 500 Gold
Avenue, Room 7011, P. O. Box 2146 , Albuquerque, New
Mexico, Telephone 843-2555, Extention 2556.