Winter-Mex Produce Co.

National Labor Relations Board - Board Decisions

Dec 8, 1967

168 N.L.R.B. 774 (N.L.R.B. 1967)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alfonso B. Flores, An Individual Proprietor d/b/a
Winter-Mex Produce Company and Teamsters,
Chauffeurs , Warehousemen & Helpers of America,
Local No. 310, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
28-CA-1491, 28-CA-1516, and 28-RC-1550
December 8, 1967
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
found appropriate within the meaning of Section
9(a) of the Act.
I The General Counsel and the Charging Party except to the Trial Ex-
aminer 's credibility findings. It is the Board 's established policy, however,
not to overrule a Trial Examiner 's resolutions with respect to credibility
unless, as is not the case here , the preponderance of all the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products , Inc., 91 N LRB 544 , enfd 188 F .2d 362 (C A. 3).
2 In the order consolidating these cases , Case 28-RC-1550 was or-
dered to a consolidated hearing for the purposes of a "hearing , rulings and
decision by a Trial Examiner and that thereafter , Case No . 28-RC-1550,
be transferred to and continued before the Board...." The Trial Ex-
aminer erroneously recommended that Case 28-RC - 1550 be disposed of
by the Regional Director for Region 28. In view of the order consolidating
these cases, we do not adopt this recommendation but shall enter our own
order certifying the results of the election.
On August 1, 1967, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be
dismissed, and that the objections to the election be
overruled, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Coun-
sel and the Charging Party filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and the
briefs, and the entire record in these cases, and
hereby adopts the findings,' conclusions, and
recommendations 2 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 Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be and it hereby is
dismissed.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in the election has not been cast for
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local No. 310, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and that
said labor organization is not the exclusive bargain-
ing representative of the employees in the unit
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: On December 16,
1966, Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local No. 310, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, filed a
petition (Case 28-RC-1 550) seeking to be certified as the
statutory collective-bargaining representative of Respond-
ent's dockhands, handtruckers, truckdrivers, loaders,
warehousemen, and the entire platform people.
Pursuant to a Decision and Direction of Elections,' an
election by secret ballot was conducted under the
auspices of the aforesaid Regional Director on March 21,
1967, among Respondent's employees in the unit found
appropriate.2
Of the 10 eligible voters who participated in said March
21 Board-conducted election, 5 cast ballots in favor of
and 5 cast ballots against the Union. On March 25, 1967,
the Union filed due and timely objections "to conduct af-
fecting the results of the election"; copies thereof were
duly served upon Respondent.
Upon a charge (Case 28-CA-1491) duly filed by the
Union on February 10, 1967, a copy of which was duly
served upon Respondent on February 11, the General
Counsel of the National Labor Relations Board, herein
respectively called the General Counsel3 and the Board,
through the aforementioned Regional Director, issued a
complaint, dated March 29, alleging that Respondent
and/or his general foreman, Pedro Lozano: During
December 1966 and January 1967, (a) unlawfully inter-
rogated the employees regarding their union membership,
activities, and sympathies; (b) promised the employees
better working conditions if they were not represented by
the Union; (c) promised the employees wage increases if
they rejected the Union as their collective-bargaining
representative; (d) told the employees that Respondent
"would fight to the last to keep the Union out" of
I Case 28-RC-1550 was consolidated for hearing with Cases
28-RC-1549, 1554, 1555, and 1559. After hearing was had therein, the
Director for Region 28 directed separate elections in each case
2 The unit found appropriate in the aforementioned Decision and
Direction of Elections was all Respondent's shed laborers in and around
Nogales, Arizona, but excluding certain stated classifications of em-
ployees
4 This term specifically includes counsel for the General Counsel ap-
pearing at the hearing.
168 NLRB No. 91
ALFONSO B.. FLORES d/b/a WINTER-MEX PRODUCE CO. 775
Respondent's establishment; (e) told the employees that
if "they rejected the Union [Respondent would] pay
them as much as the Union could get them by collective
bargaining"; (f) told the employees that it would not be to
Respondent's advantage to "work his men more than 40
hours a week if they were represented by a union"; (g)
told the employees that their rate of pay would be in-
creased 25 cents per hour and, in addition, they would be
given fully paid insurance if they "rejected the Union";
(h) told the employees that if they did not support the
Union they would be given in excess of 40 hours work
per week but, on the other hand, if they supported the
Union they would be given only 40 hours work a week;
(i) told the employees that if they selected the Union they
would receive more pay through the institution of piece-
rate work; and (j) told the employees that if they did not
reject the Union they would be obliged to strictly adhere
to all company working rules. The complaint further al-
leged that Respondent discharged Carlos Molina San-
doval, on or about January 27, 1967, and thereafter
refused to reinstate him, because he had engaged in union
or other protected concerted activities.
Upon a charge duly filed by the Union on March 28,
1967 (Case 28--CA-1516), a copy of which was duly
served upon Respondent on March 29, the General
Counsel issued a complaint, dated April 18, alleging that
since on or about December 14, 1966, Respondent has
refused to bargain with the Union as the collective-bar-
gaining representative of the employees in a certain
described appropriate unit , even though the Union had
been previously selected and designated as such
representative by a majority of Respondent's employees
in said unit.
On April 6, Respondent duly filed an answer in Case
28-CA-1491 and on April 25, he duly filed an answer in
Case 28-CA-1516. Each answer denied the commission
of the unfair labor practices alleged.
On April 18, 1967, the aforementioned Regional
Director issued a supplemental decision on objections to
the conduct of election, copies of which were duly served
upon Respondent and upon the Union, in which he over-
ruled objections A, B, and E upon the grounds, inter alia,
that the Union did not "produce evidence to substantiate
these objections,"4 and noted that the subject matter of
objections C, D, and F, "as alleged in the Complaint and
Notice of Hearing which was issued on March 29, 1967,
in Case No. 28-CA-1491," and since these "objections
(C, D, and F), raised substantial issues of fact and credi-
bility which best be resolved by a hearing, he ordered that
a hearing be held to resolve the substantial issue of fact
and credibility raised hereon."
The aforementioned Regional Director in said April
18, 1967, supplemental decision on objections ordered
that Cases 28-CA-1491 and 1519 and the objections of
the conduct of election in Case 28-RC-1550 be con-
solidated for hearing.
Pursuant to due notice, a hearing was held at Nogales,
Arizona, on May 2, 3, and 4, 1967. All parties were
represented by counsel and participated in the hearing.
Full and complete opportunity was afforded the parties to
be heard, to examine and cross-examine witnesses, to in-
troduce evidence relevant to the issues, to argue orally on
the record at the conclusion of the taking of the evidence,
and to file briefs on or before May 26, 1967. Briefs have
been received from the General Counsel and from
Respondent's counsel which have been carefully read and
considered.
Upon the basis of the entire record in the case and from
my observation of the witnesses I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Alfonso B. Flores, doing business under the name and
style of Winter-Mex Produce Company, is engaged in,
and during all times material was engaged in, the
brokerage and distribution of farm, orchard produce, and
similar commodities.
During the 12-month period immediately preceding the
issuance of the complaint herein, a period representative
of all times material, Respondent purchased commodities
from producers located within the Republic of Mexico
which commodities were shipped to Respondent's
Nogales, Arizona, facilities in excess of $500,000. Dur-
ing the same period, Respondent's out-of-State shipments
of commodities exceeded $50,000.
Upon the basis of the above-admitted facts, I find, in
line with established Board authority, that Respondent is,
and during all times material was , engaged in, a business
affecting commerce, within the meaning of Section 2(6)
and (7) of the Act, and that his business operations meet
the standards fixed by the Board for the assertion of ju-
risdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to mem-
bership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain Collectively
1. The appropriate unit
The complaint in Case 28-CA-1516, copies of which,
together with notices of hearing and order consolidating
for hearing Cases 28-CA-1491, 28-CA-1516, and
28-RC-1550, were duly served upon Respondent and
upon the Union, alleges, Respondent's answer admits,
and I find, that all dockhands, handtruckers, and
truckdrivers employed at Respondent's Nogales,
Arizona, facility, excluding janitors, office clericals,
salesmen , and supervisors as defined in the Act, con-
stitute, and at all times material constituted, a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act, with respect to
grievances, labor disputes, rates of pay, wages, hours of
employment, and other conditions of employment. I
further fmd that said unit insures to said employees the
full and complete benefit of the right to self-organization
and to collective bargaining and otherwise effectuates the
policies of the Act.
4 Objection A alleged that Servando Silva was offered a job as foreman
if he would help defeat the Union, objection B alleged, "Silva was in fact
an agent of" Respondent, and objection E alleged Rammo Amayo was
discriminatorily discharged onJanuary 27, 1967
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's majority status in the appropriate unit
At the hearing, there was introduced in evidence by the
General Counsel a list prepared by Respondent contain-
ing the names of all persons in Respondent's employ on
December 14, 1966, the date when, as found below, the
Union made its demand for recognition and bargaining.5
Said list contained the names of six persons in the unit
herein above found appropriate. On behalf of the General
Counsel, there were offered and received in evidence six
signed cards expressly authorizing the Union to represent
the signers thereof for collective bargaining. The six
cards" were signed on November 28, 1966, at a meeting
held at the Union's Nogales, Arizona, headquarters.
Later that day, November 28, Raymond Sandoval signed
a union authorization card and on November 29, Roberto
Moreno Peraza signed such a card.7
On December 14, Tom F. Owen, the Union's pre-
sident, accompanied by Joe Bejarano, the union organizer
who conducted the aforesaid original organizational
meeting on November 28, at which six of Respondent's
employees signed union authorization cards, and Roger
Wallace, another union organizer, called upon Alfonso B.
Flores, the Respondent herein, and handed Flores a
letter, dated that day and signed by Owen, together with
eight duplicate union authorization cards signed by the
eight above-named individuals.
The letter referred to above stated that the Union
represented a majority of Respondent's dockhands, hand-
truckers, truckdrivers, loaders, warehousemen, and the
entire platform personnel; demanded that the Union be
recognized as such representative and that a date be set
to commence collective bargaining."
Flores testified that after Owen and his associates had
left his office, he checked the eight cards given him by
Owen and, after checking the cards of Escareno and
Pablo Moreno against certain of his business records,° he
came to the conclusion that neither Escareno nor Pablo
Moreno had signed the proffered cards. Flores further
testified that this fact, coupled with the fact that he only
had six employees at the time of Owen's visit and Owen
had handed him eight cards, confirmed his belief, as ex-
pressed to Owen and his associates, that the Union did
not represent a majority of his employees.
Despite Flores' doubt of the Union's majority status on
December 14, the fact remains that the Union was, in
fact, the majority representative of the employees in the
unit described in Owen's December 14 letter to Flores.
This finding is based mainly, but not entirely, upon the
following: Escareno testified that he signed his authoriza-
tion card on November 28, when he, Araiza, Valencia,
German, Pablo Moreno, and Pena visited the union
headquarters that day, and that all of them signed
authorization cards at that meeting in the presence of
each other. Pablo Moreno10 testified that he signed an
authorization card at the Union's November 28 meeting
5 Actually, the list is the payroll record for the week ending December
16.
fi Being the cards of Salvador Araiza, Raul Escareno, Pablo Moreno,
Jesus Pena, Jorge Valencia, and Reyes German (also referred to in the
record as Reyes German Moreno).
7 Although the cards of Raymond Sandoval and Roberto Moreno
Peraza were received in evidence as General Counsel's exhibits, and
presumably the cards were offered in support of the Union's majority
status, the record clearly establishes that neither one of said two persons
was in Respondent's employ at any time here material.
in the presence of Escareno, Araiza, Pena, and Joe
Bejarano, Bejarano testified that Escareno, Araiza,
Valencia, German, Pablo Moreno, and Pena called at his
office, without solicitation by any union representative,
and inquired regarding the benefits they might receive if
they became union members; that after explaining to
them some of the benefits unionization might bring forth,
the six-named persons then signified their willingness to
be represented by the Union; and that after reading to the
group, in both English and Spanish, what appeared on an
authorization card, each of them signed a card in his
presence and in the presence of each other.
Under the circumstances, and upon the entire record in
the case, I find that Araiza, Valencia, German, Pablo
Moreno, Pena, and Escareno voluntarily signed
authorization cards on November 28, 1966.
Upon the basis of the entire record in the case, I find
that the Union was on November 28, 1966, the duly
selected and designated representative of the majority of
the employees in the appropriate unit, and that, by virtue
of Section 9(a) of the Act, it was on November 28, 1966,
the exclusive representative of all the employees in said
unit for the purpose of collective bargaining with respect
to grievances, labor disputes, wages, rates of pay, hours
of employment, and other conditions of employment.
3. The alleged refusal to bargain
Armed with the eight signed union authorization
cards,11 Owen, accompanied by Bejareno and Wallace,
appeared at Respondent's office on December 14. After
introductions had been had, Owen handed Flores, in the
presence of Roland Maness, Respondent's assistant sales
manager, eight duplicate original authorization cards12
and a letter addressed to Flores, signed by Owen, and
dated December 14.
The above-referred to letter was, in effect, a notifica-
tion that the Union represented the persons who had
signed the eight proffered cards; the signers thereof
represented a majority of Respondent's "dock hands,
handtruckers, loaders, warehousemen and the entire plat-
form people"; the persons in said classifications con-
stituted an appropriate unit for the purpose of collective
bargaining; Respondent should refrain from engaging in
unfair labor practices; Respondent recognize the Union
as the collective-bargaining representative of the em-
ployees involved; and a date be fixed for the commence-
ment of bargaining negotiations.
As to what transpired at the aforesaid December 14
meeting, Flores testified, and I find, that when Owen,
Bejarano, and Wallace appeared at the doorway of his of-
fice on December 14, he was on the telephone discussing
some business with a customer; his assistant sales
manager, Maness, also was in his office; when he finished
his telephone conversation, Owen, Bejarano, and Wal-
lace entered his office and introduced themselves to him;
The details of this meeting are discussed infra.
Escareno's signed "W4" form and certain of his signed payroll records
and Pablo Moreno's signed "W4" forms.
'" Also referred to in the record as Pablo Moreno Peraza.
11 Namely, the cards of German, Pablo Moreno, Pena, Roberto
Moreno, Araiza, Sandoval, Valencia, and Escareno.
12 The Union had each signer of an authorization card sign two such
cards. One set of cards was handed to Flores at the meeting here under
discussion.
ALFONSO B. FLORES d/b/a WINTER-MEX PRODUCE CO. 777
Owen then handed him the aforementioned recognition
and bargaining request letter, together with the signed
union authorization cards of Araiza, Escareno, Pablo
Moreno, Pena, German, Valencia, Peraza, and Sandov-
al;13 since Owen and his associates called upon him at the
"heaviest hour of business," he was unable to read the
letter carefully at the time it was handed to him; although
he only casually examined the names appearing in the
letter and on the authorization cards, he did not recognize
some of these names; the letter also referred to a "Paul
Escareno," whereas his employee's name was "Raul
Escareno" that on account of this "discrepancy," he told
Owen, "I could not accept the Union as bargaining agent
for my employees, and I referred him to Mr. Conard, who
in turn was to take him to our counsel," Nasib Karam,
Esq.;" and Owen, Bejarano, and Wallace then left after
Owen had remarked, to quote Flores' credited testimony,
"Will you please read the letter and get in touch with us
later ... I know you are answering the phone, and we
don't want to take [up] any more of your time."
Flores also testified, and I find, that Conard is, and on
December 14 was, secretary-manager of the West Coast
Mexico Distributors Association, an employer-associa-
tion of which Respondent is a member; that said or-
ganization is engaged primarily in assisting its members
"do a better job of selling" their produce, securing more
advantageous railroad rates, discussing "matters in the
different official circles concerning produce," but it does
not handle labor-management matters; and that he sug-
gested that Owen and his associates contact Conard
because Conard is "the in-between whenever we have
any matters to discuss with anyone ... [and] so, it was
for me easier [sic] to tell him to go and see Mr. Conard,
and Mr. Conard would take them to Mr. Karam."
Flores testified, and I find, that within an hour or so
after the three aforementioned union officials had left his
office, he carefully examined the eight union authoriza-
tion cards Owen had handed him as well as Owen's
December 14 letter; he did not recognize the names of
Roberto Moreno or the name of Raymond Sandoval
which appeared on two of the cards because he had never
heard of either of them and because neither one had ever
worked for him; and he doubted that Raul Escareno had
signed the card which purportedly bore his signature
because he did not have, nor did he ever have, an em-
ployee named Paul Escareno (the name referred to in
Owen's December 14 letter) coupled with the fact that
the signature which appeared on said card did not look
like Raul Escareno's.
Flores further testified that because he had only six
persons within the claimed unit in his employ at the time
Owen handed him the )eight union authorization cards,
plus the fact that he did not believe Raul Escareno had
signed the card in question and that neither Roberto
Moreno nor Raymond Sandoval ever worked for him, he
doubted that the Union represented a majority of the em-
ployees in the claimed unit.
On December 14 or the day following, Flores, after he
had examined the eight union cards and Owen's
December 14 letter, delivered said documents to his
counsel, Nasib Karam.
On December 16, the Union filed a petition with the
Board seeking to be certified as the statutory bargaining
representative of the employees here involved.
Karam credibly testified, and without contradiction,
that late in the afternoon of December 15, or on the fol-
lowing day, he received a telephone call from a man who
identified himself as, "Tom Owen, the president of Team-
sters Union Local 310 in Tuscon," who "told me that he
had been to Winter-Mex and had seen Flores [and] had
made a request [that the Union] be recognized as [the]
authorized bargaining [agent] for the employees of'
Respondent; he told Owen he would "be very glad to talk
to him and discuss any matter he had pending" and then
inquired of Owen what date would be convenient for
Owen to confer with him; after discussing a number of
possible dates, it was mutually "agreed that December
22, 1966, would be a satisfactory date to meet in my of-
fice and discuss" the pending demand for recognition and
bargaining; and the conversation concluded when he said,
"Well, I don't know whether or not you would be the
party to talk to, but we will be very happy to discuss and
see whether or not we can proceed on this matter as in-
dicated or whether we will have an election later on, but
let us discuss it," and Owen replied, "Fine."
Karam further credibly and without contradiction
testified that Owen did not keep the December 22 ap-
pointment, and that when he met Owen, about a week or
two after said date, the following transpired between
them:
I said, "Well, you did not keep your appointment and
we were unable to discuss anything." He said, "Well,
we are going to go through with an election."
On the same day the six employees had gone to the
Union's Nogales headquarters15 and had signed
authorization cards, or the following day, the said six em-
ployees and Pedro Lozano, Respondent's general
foreman, had a conversation in Respondent's warehouse.
Regarding this conversation Raul Escareno testified on
direct examination as a General Counsel witness as fol-
lows:
Q. Now, what was the conversation that took
place between Mr. Lozano and this group?
A. He said that the union was all right.
Q. What else did he say?
A. If they would comply with all of the benefits
that the union promised, then it was all right.
Q. What benefits was he talking about, did he
say?
A. We told Pedro that the union offered us all the
benefits and the insurance the union has.
Q. Who made this statement? Did Mr. Lozano
mention insurance?
A. We told Lozano, and Lozano said it was all
right.
Q. What did Mr. Lozano say about insurance?
A. That from the union, it was all right.
Q. What did Mr. Lozano say about insurance?
MR. KARAM: 16 The question has been asked and
answered, and the witness has said that Mr. Lozano
said that from the union it was all right.
The question has been asked and answered.
MR. ALLEYNE:17 The answer is not responsive
to the question.
13 It is to be noted, that neither Roberto Peraza nor Raymond Sandoval
were in Respondent's employ at the time of this meeting
" Karam represented Respondent at the hearing herein
November 28.
16 Respondent's counsel.
" Counsel for the General Counsel.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. KARAM: The question has been asked and an-
swered, sir.
TRIAL EXAMINER: Will the Reporter please read
the question?
(The Reporter read the pending question, as
requested.)
TRIAL EXAMINER: The objection is overruled, but
please do not lead the witness so much.
I will sustain the objection as to form.
Was anything said about insurance?
THE WITNESS: That those are the benefits that the
union was offering us if we joined the union, once
you are in the union.
TRIAL EXAMINER: All right, go ahead.
Q. (By Mr. Alleyne) What else did Mr. Lozano
tell you at that time?
A. At that time, he said it was all right.
That is all.
On cross-examination Escareno testified regarding the
above-referred to incident, as follows:
Q. Now, Mr. Escareno, after you signed the card,
you say you saw Mr. Pedro Lozano?
A. Yes.
Q. And, was it a casual meeting at the
warehouse?
A. Not casual, no. We had to be there to work.
Q. Yes, but I mean on this conversation, did that
come up as you met each other?
A. Yes, in reference to the Union, we were talk-
ing there.
Q. At that time, you mentioned that the Union
would assist you or work for you in getting better
terms and working conditions, is that not so?
A. Yes, if we joined the Union.
Q. And, Mr. Lozano told you that it was very
good, that the Union would be able to help you out?
A. Yes.
Q. He did not tell you that you should not join the
Union, did he?
A. No.
Q. And, he did -not tell you not to work for the
Union or not to do anything against the Union or for
the Union?
A. No, he didn't say that either.
Regarding the aforementioned November conversation
between Lozano and the six employees who had previ-
ously signed union authorization cards, Pena testified on
direct examination as a General Counsel witness as fol-
lows:
Q. Approximately how long after you signed your
card did you have your first conversation?
A. I don't know whether it was one week or two.
Q. Either one or two, is that right?
A. Yes.
TRIAL EXAMINER: Did he say weeks or days?
WITNESS: Weeks.
TRIAL EXAMINER: All right.
Q. (By Mr. Alleyne) Mr. Pena, where did this
conversation take place?
A. In the same warehouse.
Q. The Winter-Mex warehouse?
A. Yes.
Q. Who else was present at that time?
18 Also referred to in the record as Pablo Moreno Peraza.
14 Pablo Moreno and Araiza did, however, testify that a month or so
after they had signed the union authorization cards, Lozano spoke to them
A. I believe all of us that worked there were
there.
Q. What was the conversation?
A. That the Union was all right.
Q. Who said this?
A. Mr. Lozano.
Q. What else did he say?
A. He said that everything was all right.
Q. What else did he say?
Just tell me everything that you can remember that
Mr. Lozano said?
A. It was the first occasion that we had a conver-
sation.
Q. All right, now after that, did you - strike that,
I am sorry.
Did he say anything more at that time about the
Union?
A. The same, that it was all right.
Pablo Moreno,"' Reyes German, and Salvador Araiza,
who, according to Escareno's and Pena's testimony, were
present during the aforementioned November conversa-
tion between Lozano and the six employees, testified in
the instant proceeding regarding various and sundry re-
marks about the Union purportedly made by Lozano but
none of the three (Moreno, German, and Araiza) made
any reference to any union statements which Escareno
and Pena testified Lozano had made during the aforesaid
November conversation. 19
Lozano testified that in December 1966 and again in
January 1967, he spoke to "a majority" of the six em-
ployees then under his supervision about the Union; on
one occasion he told the employees, "Unions are good";
on another occasion, when the employees told him "they
had joined the Union and mentioned the guarantees that
were offered to them," he remarked, "It was all right, that
they had done right, the Union is good sometimes"; and,
on still another occasion, in response to questions put to
him by some of said employees, as to how unions in
general operate, he explained the workings of unions,
what benefits might be derived therefrom, adding, as an
example, "In California [unions] would protect the
worker."
Upon the entire record in the case, I find contrary to
the General Counsel's contentions, that the November
remarks attributed to Lozano by Escareno and Pena were
not violative of the Act.
Pena testified as follows regarding a conversation
between Lozano and the six employees who had signed
union authorization cards on November 28:
Q. Now, in January of 1967, that is January of
this year, did you have occasion to again talk to Mr.
Lozano concerning the Union?
A. I believe we had - I believe we met again.
Q. Where?
A. In the same warehouse.
Q. Who was present at that meeting?
A. I believe the ones that signed the cards.
Q. And, what conversation took place at that
time?
A. Concerning a contract, I believe.
Q. What was said about a contract?
A. That it was more convenient, we could be
better off with the contract.
and to the other authorization card signers about a piece-rate contract.
The details of these talks are set forth below.
ALFONSO B. FLORES d/b/a
Q. Now, who said this?
A. Mr. Lozano.
Q. What else did he say about the contract?
MR. KARAM: I am going to object to this form of
questioning, if The Court please.
If he is relating a conversation, then he should tell
what he said and what the other people said, what
everybody said, and not single it out.
TRIAL EXAMINER: All right.
Tell us what everybody said.
THE WITNESS: That the contract was better than
being in the Union, or something like that.
I don't remember any more.
Q. (By Mr. Alleyne) You do not remember any
more that Mr. Lozano said; or, that anybody said?
A. I don't remember.
Q. Now, after that, were there any more occa-
sions during which you talked with Mr. Lozano
about the union?
A. No, sir.
Escareno testified on direct examination as a General
Counsel witness as follows regarding the conversation
referred to by Pena and set forth immediately above:
Q. (By Mr. Alleyne) Where did this conversation
take place?
A. In the warehouse also.
Q. Who was present?
A. Pablo, Pablo Moreno; Salvador Araiza; and,
I.
Q. What did Mr. Pedro Lozano say at that time?
A. He offered us a contract, work by contract.
Q. Did he specifically state what kind of contract
he was talking about?
Just tell us what he said, please.
A. That we would earn more money; that they
would pay us three and a half or three per package.
Q. Three and a half cents or three cents?
A. Yes.
Q. Now, how much were you making at that time,
per hour?
A. One fifty.
Q. $ 1.50 per hour?
A. Per hour, yes.
Q. Now, if you had been paid under the three and
a half cents package plan, would this have given you
more money or less money than $1.50 per hour?
A. I imagine more money.
Q. Did Mr. Lozano mention insurance at this
time?
MR. KARAM: I object to the question, I think it as-
sumes something that is not true.
TRIAL EXAMINER: I will sustain the objection as
to form.
Q. (By Mr. Alleyne) What else did he say at this
time, if anything?
A. He offered us that, but we told him that we did
not want to work by contract, that we wanted to
work by the hour.
Q. Did he say anything else?
A. He asked us if that was our last word.
Q. Your last what?
A. Our last word, if we didn't want the contract.
He asked us if that was the last word.
Q. After you said that this was the last word, what
did Mr. Lozano say?
A. That from then on, it was going to be rougher.
WINTER-MEX PRODUCE CO. 779
Q. Did he explain what he meant by "It is going
to be rougher"?
A. In reference to the work, we were going to
punch our cards if there was a truck being unloaded;
and, as soon as we finished unloading, if there was
not another truck, then we were going to check out.
Q. Had you done these things before?
A. Never.
It was never accomplished, what he said was never
done.
On cross-examination Escareno testified as to said in-
cident as follows:
Q. (By Mr. Karam) Did he at any time tell you or
anyone in your presence that if you rejected the
Union -.no, for you to reject the Union - strike that,
I will rephrase it.
Did he at any time tell you to reject the Union?
A. Later, the second time that we met, he talked
about that.
Q. What did he say
A. That we should take the contract, that it was
better for us.
Q. What contract did he have reference to?
A. That we should make arrangements with our
boss.
Q. Did he mention any contract to you at all?
A. Yes, the contract he was asking us to take.
Q. What contract?
A. Three and a half per package.
Q. And, you refused that?
A. No, because we wanted a Union.
Q. So that you ignored his statements to you and
his offers?
A. Yes.
Q. And, you rejected everything that he
proposed?
A. Yes.
Q. And you told him that you would not accept
anything, that you wanted a Union?
A. Yes, that was our last word.
Q. Did he at any time after that ever mention the
Union again to you?
A. No, not anymore.
Araiza testified that toward the end of January 1967, he
had a conversation with Lozano; no one else was present;
and the following ensued during said conversation:
Q. Mr. Araiza, what was the conversation
between you and Mr. Lozano about the Union at that
time?
A. He also asked me about the benefits we were
going to receive from the Union.
He said that if we did not join the Union, that it
would be better for us to ask for a contract to benefit
ourselves.
Q. Did he say what kind of contract he was talk-
ing about?
A. Yes, usually it is worked per package.
Q. This package contract, was it your understand-
ing that Mr. Lozano was talking about a package
contract?
A. Yes.
Q. Now, what is a package contract?
Can you relate that to the Court, please?
A. Vegetables and tomatoes that are handled
there, they come in boxes, what we call a package.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What would you have been paid under this Q. Everyone then individually said, "No, we do
package system? not want a contract with you"?
A. Three or three and a half cents per package. A. Exactly.
Q. How much were you making per hour at that
time?
A. $1.50. Q. Do you remember hearing Mr. Pedro Lozano
Q. Now, would the package system given you at this meeting which you indicate say that the
more or less money than $1.50 per hour? Unions were good and that if you wanted to belong
A. More. to the Union, you could go ahead and join it9
Pablo Moreno, called as a rebuttal witness by the A. Yes.
General Counsel, testified on direct examination that Lozano frankly, and without hesitation, admitted
about a month and a half after he had signed the union
authorization card he and the five other employees who
had signed such a card on November 28, had a conversa-
tion with Lozano in the employees' small office located in
Respondent's warehouse Regarding said conversation,
Moreno testified as follows:
Q. What did Mr. Lozano say about the Union at
that time?
A. He asked us why we didn't reject the Union
and accept what Mr. Flores proposed so we wouldn't
be in any more difficulty; that it was better for us to
accept the contract which is the one that we have al-
ways looked for.
Q. Who first talked about the contract at that
time?
A. Mr. Pedro Lozano.
Q. Did Mr. Lozano say anything else at that
time?
A. That if we didn't take that opportunity, that
there wasn't going to be another opportunity,
Q. Did he say at that time, Mr. Moreno, just what
kind of contract he was talking about?
A. That he was going to pay us three and a half
per package.
During the course of his cross-examination regarding
the conversation referred to immediately above, Moreno
testified, in part, as follows:
Q. Now, who was carrying on this conversation?
A. Mr. Pedro Lozano.
Q. Was anyone of the other individuals that I
have named20 answering or carrying on this conver-
sation with him?
A. That we answered?
Q. Yes.
A. Yes.
Q. Who was the one who acted as the spokesman
or talked for the group?
A. We all talked.
Q. Did Mr. Salvador Araiza say, "No, we will not
accept any contract"?
A. He said it.
Q. Did Jorge Valencia, "No, we will not accept
the contract"?
A. Yes, he said it.
Q. And, did Escareno say the same thing?
A. Yes, he said it.
Q. And, did Pena say the same thing?
A. Yes.
speaking to the employees about the so-called contract.
He denied, however, that his purpose in discussing the
contract was to wean the employees away from the
Union.
Lozano testified on direct examination as a Respond-
ent witness that he never told Respondent's employees
that (1) if they did not support the Union he would give
the employees in excess of 40 hours of work per week"'
but, on the other hand, if they supported the Union the
employees would only receive 40 hours of work per
week, (2) if they "would reject the union , Winter-Mex
would institute a contract-type of piece-rate method for
remuneration for work whereby the employees would
receive more than they currently were receiving," and (3)
if they "did not reject the union, they would be required
to strictly obey all of the company rules; report to work
promptly each day; refrain from working with alcohol on
their breath; and, that they would no longer be permitted
to remain on the work clock when they were not actually
engaged or in the process of loading or unloading
produce."
Lozano further testified that about January 1967, in a
conversation with Araiza about the Union Araiza men-
tioned that, to quote from Lozano's testimony, "He
[Araiza] thought maybe that is what they [the emplo-
yees] were looking for, that that is what maybe they
wanted"; he could not offer the employees a piece work
contract because he had no authority to do so; and he did
not tell Escareno, Araiza, or Pablo Moreno "that if they
didn't accept work under the contract, or that if they ac-
cepted the union , that it would be rougher on them."
In the light of my observation at the hearing of the con-
duct and deportment of Lozano, Pablo Moreno,
Escareno, Pena, and Araiza, and after very careful scru-
tiny of the entire record, I find that Lozano's version of
what was said by him and by the others on the occasions
referred to by Pablo Moreno, Escareno, Pena, and Araiza
to be substantially in accord with the facts. this finding is
based mainly, but not entirely, on the fact Lozano im-
pressed me as being a person who was careful with the
truth and meticulous in not enlarging his testimony
beyond his memory of what was said on the occasions in
question. On the other hand, each of the four-named em-
ployees gave me the distinct impression that he was at-
tributing certain antiunion remarks to Lozano, which, in-
cidently, Lozano did not make, because they thought
such testimony would be to the best of the Union.22
Araiza, Escareno, and Pena each testified that in
211 Referring to the six employees who had signed union authorization
cards on November 28
11 The employees work on an hourly basis.
22 This is not to say that Lozano was not confused on certain matters or
that there were no variations in his objectivity and convincingness. How-
ever, the candor with which he admitted that he could not be certain as to
dates, times, the persons present, or the exact words used by the partici-
pants to the conversations in question, only seems to add credence to
what a careful study of his testimony shows that he honestly believes to be
the facts.
ALFONSO B. FLORES d/b/a
January 1967, Flores told them, in the presence of Pablo
Moreno and employee Jorge F. Valencia, that he would
raise their pay from $1.50 an hour to $1.75 per hour and
also give the employees fully paid insurance provided
they rejected the Union as their bargaining representa-
tive.
Araiza also testified, after he had been shown an af-
fidavit given by him to a Board agent for the purpose of
refreshing his recollection, that in January 1967 he had a
conversation with Flores, with no one else present,
wherein Flores remarked that he was aware that the
Union would try to obtain working conditions for the em-
ployees; that if the employees had come to him before
going to the Union, he would have given them better
working conditions; and that if the employees "decide to
reject the Union, I will give you more benefits and a raise
in salary" and a company-paid insurance plan.
Pablo Moreno testified, and as noted above as General
Counsel's rebuttal witness, that in a conversation with
Flores which took place in December, at which no one
else was present, after Flores had stated he was disgusted
"with me because I had signed that card and hidden from
him the Union," Flores inquired "Why hadn't we talked
to him before signing those [authorization] cards, that we
could have had some arrangement without necessity of a
second person"; Flores then "proposed to me that I re-
ject the Union; he could better me without the necessity
of joining the Union; he could raise my pay and get me
the life insurance if I would reject the Union"; Flores re-
peatedly requested that he decide right then and there if
he were "for the Union or for him"; and when he said he
would "think it over," Flores reminded him "that I was
a man and that I could decide at that moment."
Pablo Moreno also testified that toward the end of
March 1967, Flores gave him about $27 in cash being the
25-cent-per-hour increase in pay retroactive "from the
month of January up to the date we told him we were
going to reject the Union. -23
Flores frankly, and without hesitation, admitted that he
discussed with the six employees in question, either in-
dividually or with several of them together, the Union and
their memberships therein; when they told him they had
joined the Union because "we want to see what is going
to happen" he said, "That is all right. You have the
privilege and prerogative to do anything you want. The
Unions are all right"; and he never spoke about the
Union to all the employees as a group.
Flores denied that he ever told any of his employees
that (1) the employees should have come to him before
"seeking union representation, that [he would give] them
better working conditions if they had done so"; (2) he
would give the employees a wage increase and better
their working conditions if they rejected the Union; (3) if
the employees "insisted on being represented by the
union [he] would have to protect [himself] and that [he]
would fight to the last to keep the union out"; (4) the em-
ployees would have less than 40 hours of work per week
if they did not reject the Union and if they, on the other
hand, rejected the Union they would have in excess of 40
hours of work per week; (5) he would raise the em-
ployees' pay from $1.50 per hour to $1.75 per hour and
23 It is significant to note that there is absolutely no evidence in the
record, credible or otherwise, that Pablo Moreno or any other employee
told Flores that he was "going to reject the Union."
24 Also referred to throughout most of the record and in this Decision
WINTER-MEX PRODUCE CO. 781
that their pay increase would be retroactive from January
1, 1967; and (6) he would give the employees company-
paid insurance.
After being asked a series of questions regarding state-
ments attributed to him by various employee witnesses to
which he denied making, Flores was asked the following
question on direct examination by his counsel and he
gave the following answer:
Q. Did you say anything of the nature substan-
tially that covered these particular matters that I
have indicated in the last few questions?
A. Yes, what I said, I said, "Well, I know that
you were satisfied. I wish I had known before. At
least, I would know the reason for your joining the
union."
And, I said, "But, the thing is over now, we have
to wait until the election is over."
Upon the record as a whole and from my observation
of the witnesses while they testified I am convinced, and
find, that Flores' version of what he said to the various
employees during his conversations with them to be sub-
stantially in accord with the facts. I further find that
Flores never asked any of his employees to forsake the
Union nor did he offer his employees wage increases,
better working conditions, or company-paid insurance for
the period commencing November 28, 1966, to the date
of the Board-conducted election. These findings are
based mainly, but not entirely, on the fact that Flores, like
Lozano, impressed me as a truthful and forthright witness
and, as found above, Pablo Moreno, Pena, Escareno, and
Araiza did not so impress me.
There is certain testimony in the record relative to the
curtailment of the employees' hours. The General Coun-
sel points to this testimony in support of the 8(a)(1) and
(5) allegations of the complaint. It would serve no useful
purpose to set forth at length this testimony for I find that
the employees received less work during this short period
because Flores was endeavoring to hire additional help in
anticipation of his busy season and used this opportunity
to "break in" certain newly hired employees. This
procedure in no way violated the Act for it was put into
effect for business reasons only.
Upon the record as a whole, I find that the allegations
of the complaint in Case 28-CA-1491 and the allegations
of the complaint in Case 28-CA-1516 that Respondent
has engaged in and is engaging in acts and conduct viola-
tive of Section 8(a)(5) and (1) of the Act are not supported
by substantial evidence. Accordingly, I recommend that
the allegations of the complaints in the above-numbered
cases that Respondent violated Section 8(a)(1) and (5) of
the Act be dismissed.
B. The Discharge of Carlos Molina Sandoval24
Molina testified that on January 24, 1967,25 the day he
was hired by Lozano, the latter said to him, to quote from
Molina's testimony, "If I joined the Union, I was em-
ployed to work only 40 hours; and, if I were on their part,
that I was going to work more than 40 hours"; about a
week after he commenced his employment with Respond-
ent he signed a union authorization card; and about a
as Carlos Molina.
25 At one point , Molina testified that he was hired on January 27.
Lozano testified that Molina worked for Respondent from January 13 to
February 3,1967.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week thereafter he was discharged without being given a
reason for the discharge.
Lozano denied that he ever discussed the Union with
Molina or that he made the above-quoted remark Molina
attributed to him. I accept as true Lozano's denial and
find that he did not make any such remark nor did
Lozano, at any time material, talk to Molina about the
Union. It is incredible that a newly hired employee would
be told by Lozano that the employee would receive less
work if he joined the Union when every "old time" em-
ployee who testified herein quoted Lozano as saying that
unions were "good."
Lozano testified that Molina was discharged because
he was a dissatisfactory employee in that he lacked ex-
perience, had to be shown "every moment how to do the
work, and, the other boys had to wait a long time and they
would complain about him"; he did not know that Molina
was a union member; and Molina's union membership,
sympathies, and activities played no part in his decision
to fire Molina.
Molina testified, under questioning by Respondent's
counsel, that some of his coworkers told him that he
"should pitch in and help more, that [he was] not doing
his share" of the work.
Upon the entire record in the case, I find that Molina
was discharged for cause and not for the reasons alleged
in the complaint, Case 28-CA-1491. This finding is but-
tressed by the fact that there is absolutely no evidence in
the record that Respondent, or any of his supervisory per-
sonnel, had any knowledge of Molina's union member-
ship, sympathies, or activities prior to Molina's discharge.
Accordingly, I recommend that the allegations of the
complaint in Case 28-CA-1491 with respect to Molina
be dismissed for lack of substantial proof.
As has been seen throughout this Decision, the prepon-
derance of the credible evidence establishes that Respond-
ent engaged in no activity proscribed by the Act. Under
the circumstances, I recommend that the complaints in
each of the above-numbered cases be dismissed, that the
Union's objections to the conduct of the election be over-
ruled, and that the Regional Director for Region 28 certi-
fy the results of the Board's March 21, 1967, election.26
in, commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is, and during all times material was, a
labor organization within the meaning of Section 2(5) of
the Act.
3. All Respondent ' s dockhands , handtruckers, and
truckdrivers , excluding janitors , office clericals,
salesmen , and supervisors as defined in the Act con-
stitute, and at all times material constituted , a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since November 28, 1966, a majority of Respond-
ent's employees in the appropriate unit, described im-
mediately above, have been members of the Union, and
at all times since said date, the Union has been the duly
designated and selected representative of a majority of
the employees in said appropriate unit for the purposes of
collective bargaining , and, by virtue of Section 9(a) of the
Act, has been , and now is , the exclusive representative of
all the employees in said unit for the purposes of collec-
tive bargaining with respect to grievances , labor disputes,
pay, wages , hours of employment , and other terms and
conditions of employment.
5. The allegations in the complaint in Case
28-CA-1491 that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8 (a)(1) and (3) and the allegations of the complaint in
Case 28-CA-1516 that Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8 (a)(5) and ( 1) of the Act have not been
sustained.
RECOMMENDED ORDER
It is recommended , upon the basis of the foregoing
findings of fact and conclusions of law, that the com-
plaints in Cases 28-CA-1491 and 28-CA-1516 be
dismissed.
RECOMMENDATIONS ON THE UNION'S OB-
JECTIONS TO THE CONDUCT OF ELECTION
CONCLUSIONS OF LAW
1. Alfonso B. Flores, an Individual Proprietor, d/b/a
Winter-Mex Produce Company, Nogales, Arizona, is en-
gaged in, and during all times material has been engaged
zs At the conclusion of the General Counsel's case-in-chief, Respond-
ent's counsel moved to dismiss the complaints for lack of proof. The mo-
tion with respect to the complaint in Case 28-CA-1516 was denied. As to
the motion with respect to the complaint in Case 28-CA-1491 decision
thereon was reserved. The motions to dismiss were renewed at the close
of the taking of the testimony herein at which time decisions thereon were
On the basis of the findings heretofore made in section
III, above, it is recommended that the Regional Director
for Region 28 overrule the objections filed by the Union
on March 25, 1967, and certify the results of the election
held on March 21, 1967.
reserved. The motions are herewith granted.
Appended to the General Counsel's brief were proposed Conclusions
of Law, proposed Recommended Order, and a proposed Notice The
proposed Conclusions and Order are disposed of in accordance with the
findings , conclusions , and recommendations herein set forth