American Poultry and Egg Co.

National Labor Relations Board - Board Decisions

Sep 18, 1963

144 N.L.R.B. 650 (N.L.R.B. 1963)

650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with said labor organization as
the exclusive representative of the employees in the bargaining unit described
below, by changing or effecting new wage rates, or otherwise altering the work-
ing conditions of our employees in the appropriate unit without giving notice
to and consulting with the said labor organization.
WE WILL NOT in any like or related manner refuse to bargain collectively
with said labor organization as the exclusive representative of the employees in
the bargaining unit described below with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All employees employed by us at our Brentwood, Maryland, warehouse,
but excluding all office clerical employees, watchmen, guards, professional
employees, and supervisors as defined in the Act.
Hy GREENSPUN AND HARRY BRAYMES,
TEA LIBERTY FOOD DISTRIBUTORS,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 707 North
Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if
they have any questions concerning this notice or compliance with its provisions.
Fort Worth Poultry & Egg Co., d/b /a American Poultry and
Egg Company and General Drivers and Helpers Local Union
No. 657, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
Fort Worth Poultry & Egg Co., d/b/a American Poultry and
Egg Company and General Drivers and Helpers Local Union
No. 657, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Petitioner . Cases Nos. 23-CA-1492 and 0,3-RC-1949. Septem-
ber 18, 1963
DECISION AND ORDER
On June 21, 1963, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. The Trial
Examiner also found that certain of the above unfair labor practices
engaged in by the Respondent affected the results of the Board election
in the above-captioned representation case and recommended that the
said election be set aside and that a new election be held at such time
as the Regional Director for the Twenty-third, Region deems that
circumstances permit the employees a free choice of a bargaining
representative. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
144 NLRB No. 67.
AMERICAN POULTRY AND EGG COMPANY 651
and recommended that the complaint be dismissed with respect thereto.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, as modified below.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modification :
Paragraph 1(a) is hereby deleted and the following substituted
therefor:
(a) Interrogating its employees concerning their union mem-
bership, activities, or desires in a manner constituting interfer-
ence, restraint, or coercion within the meaning of Section 8 (a) (1)
of the Act.
The companion notice provision shall be similarly modified.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on August 21, 1962, by General Drivers and Helpers Local
Union No. 657, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter referred to as the Union, the
General Counsel of the National Labor Relations Board issued a complaint on
November 6, 1962, against Fort Worth Poultry & Egg Co., d/b/a American Poultry
and Egg Company, hereinafter referred to as the Respondent, the Company, or the
Employer, alleging violations of Section 8(a)(1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136) hereinafter referred to
as the Act.' Thereafter on November 13, 1962, the Respondent filed an answer
to the complaint in which it admitted certain jurisdictional matters but denied the
commission of any of the alleged unfair labor practices.
On or about December 31, 1962, the Regional Director issued an amended com-
plaint and notice of hearing against the Respondent herein in which additional
violations of Section 8 (a)( I) of the Act were alleged and that it had engaged in
conduct violative of Section 8 (a) (3) and (1) of the Act by discriminately discharg-
ing Manuel V. Arrellano, an employee in its Gonzales plant, on or about August 21,
1962.2 In due course the Respondent filed its amended answer thereto in which
it denied the commission of any of the unfair labor practices alleged therein.
Case No 23-RC-1949 is predicated upon a representation petition filed by the
petitioning Union on August 1, 1962, and pursuant to a Decision and Direction of
Election issued by the Regional Director for the Twenty-third Region on Septem-
i The original complaint dated November 6, 1962, was amended on November 30, 1962,
to the extent that paragraph 3 thereof was amended to add, The Union . . herein is a
Labor Organization within the meaning of Section 2(5) of the Act"
2 The allegations in the complaint as to specific violations of Section 8(a) (1) of the
Act will be set forth in detail below.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 21, 1962, an election was conducted on October 13, 1962, among the truck-
drivers employed by the Respondent at its Gonzales , Texas, plant? Thereafter on
October 17, 1962, the Petitioner filed timely objections to conduct affecting the
results of election, and subsequently , the Regional Director , on November 23, 1962,
after an investigation , issued a Supplemental Decision , Order Directing Hearing,
Order Consolidating Cases and Order Transferring Representation Case, in which
he alleged that "the objections and challenged ballots and the evidence adduced
during the investigation of such objections and challenges raise substantial and
material issues of fact, credibility and policy which can best be resolved by a hear-
ing . . . ," and directing that the "case be consolidated with Case No. 23-CA-1492
for hearing before a Trial Examiner who shall make recommendations to the
Board with respect to the issues involved in said objections." 4
Thereafter on March 11 and 12, 1963, pursuant to notice , a hearing on the
complaint in Cases No . 23-CA-1492 and 23-RC-1949 was held in Gonzales, Texas,
before Trial Examiner James A. Shaw, at which all parties were represented by
counsel , and were afforded full opportunity to be heard, to examine and cross-
examine witnesses , to introduce evidence pertinent to the issues , and to make oral
argument , which was waived by all parties . Subsequent to the hearing , counsel
for all of the parties herein filed briefs with the Trial Examiner in support of their
respective positions.
At the completion of the taking of the testimony at the hearing herein , the Gen-
eral Counsel moved to conform the pleadings to the proof in regard to minor mat-
ters such as names, dates, and the like. The motion was granted by the Trial
Examiner . The General Counsel also moved to amend the complaint in regard to
certain allegations in paragraphs 6(a) and 6(1) of the complaint as regards cer-
tam conduct of Foremen Guerra and Kuntschik , violative of Section 8(a)( I) of the
Act. The motions were granted by the Trial Examiner for reasons that will be
apparent below.
Counsel for the Respondent at the close of the hearing moved that the com-
plaint herein be dismissed in its entirety . The Trial Examiner reserved ruling
thereon . For reasons set forth herein below the motion is hereby granted as to
certain allegations in the complaint and denied as to others.
Upon the entire record in the consolidated cases and from his observation of
the witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that: "Respondent is, and has been
at all times material herein , a corporation duly organized under, and existing by
virtue of, the laws of the State of Texas, having as its wholly owned subsidiary a
place of business in Gonzales , Texas, where it is engaged in the wholesale sale of
poultry and dairy products ; (b) during the past 12-month period, a representative
period, Respondent , in the course and conduct of its business operations , purchased
and had shipped to its establishment in Gonzales, Texas, from points outside the
State of Texas , goods and materials of a value in excess of $ 50,000 "
The Respondent in its answer to the amended complaint, dated January 4, 1962,
denies that it is engaged in commerce within the meaning of the Act.
The record herein shows that the Board, in Case No. 23-RC-1949, found that
the Employer "is engaged in commerce within the meaning of the Act ," and issued
its Decision and Direction of Election in said case on September 21, 1962, follow-
ing a representation hearing on September 5, 1962, at Gonzales, Texas, in which the
Respondent appeared and participated therein.
In the circumstances discussed and described above the Trial Examiner finds that
the Respondent herein is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Local Union No. 657, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2 ( 5) of the Act.
3 See infra for a more detailed account of the election and the issue that arose therefrom
4 During the course of the hearing herein the General Counsel orally moved to amend
his complaint as to additional violations of Section 8(a) (1) of the Act. The Trial
Examiner granted his motions in this regard , and permitted counsel for the Respondent
to orally amend his answer to deny said allegations
AMERICAN POULTRY AND EGG COMPANY 653
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE CONDUCT
AFFECTING THE RESULTS OF THE ELECTION
As indicated above the amended complaint in Case No . 23-CA-1492 alleges
numerous violations of Section 8(a)(1) of the Act, and that Manuel V. Arrellano,
an employee , was discriminately discharged because of his activities on behalf of
the Union , and that by such conduct engaged in and is engaging in conduct in
violation of Section 8(a)(3) and ( 1) of the Act . Since the objections to the elec-
tion issues involved in Case No. 23-RC-1949 are so closely intertwined with the
alleged violations of Section 8(a) (3) and ( 1) of the Act in the unfair labor prac-
tice case , the Trial Examiner is convinced that the most practical way to dispose
of the issues he is confronted with herein is to first set forth a brief resume of
the incidents chronologically in order that all concerned herein may have a picture
of what transpired from on or about July 23, 1962, to the date of the election on
October 13, 1962.
(1) July 28, 1962-Meeting between representatives of the Union and the Re-
spondent 's truckdrivers at the home of Manuel V. Arrellano.
(2) July 30, 1962-Union advised the Respondent in a letter dated August 1, 1962,
of its organizational efforts among its truckdrivers and listed the names of those
who had signed application-for-membership cards.
( 3) August 1 , 1962-Union filed its petition for representation in Case No.
23-RC-1949.
(4) August 9, 1962-Arrellano was involved in an accident while driving one of
the Respondent's trucks.
(5) August 11 , 1962-Meeting of representatives of the Union and the truck-
drivers at Arrellano's home. The importance of that incident will be discussed in
detail below. Suffice it to say at this point that it involves that county sheriff of
Gonzales County, Texas, and is one of the principal objections relied upon in its
objections to the election.
(6) August 13 , 1962-Arrellano is taken off his trucking job and put on the
eviscerating line in the plant.
( 7) August 21 , 1962-Arrellano is discharged by the Respondent.
(8) September 5, 1962-Representation hearing, Case No. 23-RC-1949 , held in
the Gonzales County courthouse , in Gonzales, Texas.
(9) September 18, 1962-Union files the charge in Case No. 23-CA- 1492, alleg-
ing violations of Section 8(a) (3) and ( 1) of the Act.
(10) September 21, 1962-Regional Director for the Twenty-third Region issues
his Direction of Election.
( 11) October 13, 1962-Election in Case No . 23-RC-1949.
( 12) October 17, 1962-Union files objections to election.
(13) November 5, 1962-Regional Director for Twenty -third Region advised the
Union by letter that he would not issue a complaint on the 8 ( a)(3) allegations in
its charge that Manuel V . Arrellano had been discharged for his union activities.
( 14) November 8, 1962-The Regional Director issues his complaint in Case No.
23-CA-1492, in which he alleged specific violations of Section 8(a)(1) of the Act.
(15) November 13, 1962-Respondent files its answer to the complaint in Case
No. 23-CA-1492.
(16) November 23, 1962-Regional Director issues his Supplemental Decision,
Order Directing Hearing, Order Consolidating Cases, and Order Transferring Repre-
sentation Case, in Cases Nos. 23-RC-1949 and 23-CA-1492.
(17) December 31, 1962-Regional Director issues his amended complaint and
notice of hearing in Case No. 23-CA-1492 in which Respondent was charged with
violating Section 8 (a)(3) and ( 1) of the Act by discharging Manuel V . Arrellano,
on August 21, 1962.
( 18) January 4, 1963-Respondent files its answer to the amended complaint.
As indicated above, the foregoing constitutes a brief resume of the incidents that
we are primarily concerned with herein. The Trial Examiner desires to point out
that the Union at no time amended its original charge to add additional and specific
violations of Section 8(a)(1) of the Act. Moreover , the record herein contains
no evidence , documentary or otherwise , that the Union signed a waiver of its charges
against the Respondent prior to the election on October 13, 1962 . Another factor
regarding the issues herein that has perturbed the Trial Examiner considerably is the
fact that the Union did not file a charge as to Arrellano 's discharge until Septem-
ber 18, 1962 , almost a month after it occurred . Consequently this issue was not
before the Regional Director at the time of the hearing in the representation case
on September 5, 1962. A further perturbing factor is that the alleged violations of
Section 8 (a) (1) of the Act in the amended complaint , issued on or about Decem-
ber 31, 1962 , and as further amended at the hearing herein , clearly show that the
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incidents in question all occurred prior to the hearing in the representation case, on
September 5, 1962. For this and other reasons that will be discussed below the Trial
Examiner feels that the following excerpt from the amended complaint should be
inserted herein:
6.
Since on or about July 20, 1962, and continuing to date, Respondent has
interfered with, restrained and coerced, and is interfering with, restraining and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, by the following acts and conduct'
(a) On or about July 20, 1962, John Guerra threatened employees that "if
the Union came in a lot of innocent people would be out of work."
(b) On or about August 11, 1962, J. A. Slama interrogated an employee con-
cerning his union activities.
(c) On or about August 11, 1962, J. A. Slama threatened employees that
Respondent would refuse to purchase fixed assets, "if the Union came in."
(d) On or about August 11, 1962, J. A. Slama threatened employees that
Respondent "will have to close if the Union comes in."
(e) On or about August 11, 1962, J. A. Slama threatened employees that
"lots of people are going to be out-of-work if the Union comes in."
(f) On or about August 18, 1962, Manuel Leando threatened employees that
"if the plant went union," Respondent's employees "would not have security,"
and that "if it went union" Respondent's employees "would be responsible for
closing the plant."
(g) On or about August 18, 1962, Manuel Leando threatened employees that
"even if it went union," that Respondent's employees could not receive install-
ment credit because Respondent's employees "would not have the security of
a job."
(h) On or about August 18, 1962, Manuel Leando threatened an employee
that such employee and his wife would be socially ostracized from Leando, and
Leando's wife, because of such employee's activities on behalf of the union.
(i) On or about August 21, 1962, Johnny Kuntschik promised an employee
that such employee could have his route back, "as soon as this union business
cooled off."
(j) On or about August 21, 1962, Johnny Kuntschik threatened employees
that Respondent's parent corporation would "close the plant and a lot of in-
nocent people would be out of a job" if the Union became the collective bar-
gaining representative of Respondent' s employees.
(k) On or about September 1, 1962, Johnny Kuntschik interrogated an
employee as to "which drivers attended the Union meeting at Arrellano's house."
It is to be noted that in the foregoing excerpt from the amended complaint that
Slama, Guerra, Kuntschik, and Leando are alleged to have interrogated and threat-
ened certain employees of the Respondent in violation of Section 8 (a) (1) of the Act.
The complaint alleges and the answer admits that "At all times material to the issues
herein, J. A. Slama, manager; Johnny Kuntschik, foreman; Manuel Leando, foreman;
and John Guerra, foreman, have been, and are, supervisors within the meaning of
Section 2 (11) of the Act," and the Trial Examiner so finds. Their respective duties
and the role they played in the matters we are concerned with herein will be dis-
cussed, described and disposed of below.
Before proceeding further the Trial Examiner is convinced that he should also
present a rough picture of the Respondent's business operations. He has reference
of course to the nature of the business and the descriptive language used by the
witnesses in their testimony at the bearing herein. While it is true we are primarily
concerned with the truckdrivers who deliver the Respondent's finished product, never-
theless we are also concerned with the processing of the poultry, chickens and turkeys,
from the time they are hung on the line to where their "lungs and sex glands are
sucked out" on the eviscerating line, to the packing room, and onto the trucks for
delivery to the Respondent's customers all over Texas. Here as in other business
enterprises certain colloquialisms creep in and become part and parcel of the lan-
guage of those who are engaged therein in their day-to-day conversations with others.
This will be apparent in certain excerpts from the testimony of the witnesses at the
hearing herein, which will be inserted below.
The Respondent in the course of its business operations is engaged in the slaughter-
ing, dressing , packaging, and selling of chickens to its customers in Texas. However,
it also handles turkeys during the holiday season, that is, for the Thanksgiving and
Christmas trade, which is for about 3 months each year. Since we are not con-
cerned herein with this phase of the Respondent's operations there is no need for
further discussion in that regard.
AMERICAN POULTRY AND EGG COMPANY 655
The Respondent's operation at its Gonzales, Texas, plant, is divided into two
departments, the eviscerating department and the trucking department. John Guerra
is the supervisor in charge of the eviscerating department , which includes the picking
room and the packing room. Further discussion of Guerra's duties and operations
under his supervision will be discussed below. John Kuntschik is the supervisor of
the truckdrivers and the "hangers" in the poultry house. The overall operation of
the Gonzales plant is under the supervision of Joe Slama, plant manager.
As indicated above, the Respondent's operations include the operation of poultry
plants in Gonzales, Meridian, and Lampasas, Texas. All are under the direct
supervision of Virgil Clowe, whose office is in Fort Worth, Texas.
Before proceeding further the Trial Examiner will set forth hereinbelow his inter-
pretation of the operation of the eviscerating department and the duties and respon-
sibilities of John Guerra, the supervisor in charge of the department.
According to Guerra's credible testimony his department is divided into three
sections: (1) the eviscerating department, where the "innards" of the chickens are
removed; (2) the picking room, where the feathers are picked off the chicken; and
(3) the packing room where the chickens are packed and prepared for shipment to
the Respondent 's customers.
The chickens are first hung by their legs on the line by the hangers, from there
they go on down the line, which is moving constantly, like an endless chain, to the
killers, who cut the necks of the chickens, and from there on the line moves down
to the pickers, and then to the gizzard and gut pullers "and so forth," who take out
the innards of the chickens, from there the line moves down to the "suction machine"
which is used to suck out the lungs and the sex glands of the birds, then on down to
the inspection department.
The "line" moves at the rate of about 24 chickens a minute, or roughly about
11,500 are slaughtered and processed every 8 hours. The record shows that it
normally takes about 15 minutes for the chickens to move from where they are
hung on the line to the point where they are taken off. In other words when the
hangers stop hanging the chickens it will take about 15 minutes for the line to be
empty by the time it gets to the employees down the line. It is during this period
that the employees take a 15-minute break.
The record shows that Guerra had at times material herein 51 employees under
his supervision. They were employed in the following departments: (1) Eviscerating,
27; (2) picking room, 11; (3) packing room, 13; total, 51.
Of the 27 employees in the eviscerating department all are women, except 3. The
three men are assigned to the following jobs: (1) the suction or lung-pulling machine
operator, (2) the neck-cutter, and (3) the take-off man who takes the chickens off
the line. The importance of this observation will be apparent below.
A. The concerted activities of the Respondent's employees 5
To begin with, the issues we are concerned with herein are somewhat unique,
in that it was the employees themselves who contacted the representative of the
Union and requested them to assist in the organization of the Respondent's
truckdrivers.
According to the credible testimony of Manuel V. Arrellano, one of the Respond-
ent's truckdrivers, at times material herein, he was in San Antonio, Texas, on or
about July 23, 1962, and called the Union's offices and talked to Raymond C.
Shafer, president and business manager of the Charging Union. The gist of his
5 At this paint the Trial Examiner desires to point out to all concerned that his find-
ings and conclusions herein have been made in the light of his observation of the conduct
and deportment at the hearing herein of all the persons who testified therein, and after
a very careful scrutiny of the entire record, oral and documentary , all of which has been
read and rechecked several times , and being well aware of the contentions of the parties
with respect to the credibility problems here involved , of the fact that in many instances
testimony was given regarding events which took place quite some time prior to the open-
ing of the hearing, and of the fact that very strong feelings have been generated, in the
community and between the parties herein , by the circumstances of this case , coupled with
the fact that it would unnecessarily protract this report to summarize all the testimony
or to spell out fully the confusion and inconsistencies therein, the following is a com-
posite picture of all the factual issues involved and the conclusions based thereon. The
parties may be assured that in reaching all resolutions, findings , and conclusions herein
by the Trial Examiner , the record as a whole has been carefully considered ; relevant
cases have been studied ; and each contention advanced has been weighed , even though
not specifically discussed.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation with Shafer was that the truckdrivers of the Respondent were interested
in joining the Union. Shafer informed him that he needed further information as
to certain matters which Arrellano agreed to get for him. Later that same week
Arrellano called him and gave him further information, which the record indicates
was on the Respondent's operations and the number of employees who desired the
Union to represent them. The result of their conversations was that Shafer agreed
to meet with the truckdrivers at Arrellano's home in Gonzales, Texas, on Saturday
night, July 28, 1962. What transpired at this meeting follows below.
The record shows that nine of the Respondent's truckdrivers attended the meeting.
The Union was represented by Shafer and his assistant, Herman L. Loyd. During
the course of the meeting Shafer explained the advantages of belonging to the
Union and also pointed out some of the hazards of attempting to exercise their
rights under the Act. As a result of Shafer's efforts the nine employees who were
present signed union application-for-membership cards. During the course of the
meeting Shafer advised the employees in substance that the Union would file a
petition for an election with the Board and that since he was unaware of what the
Respondent's attitude toward an election would be and in order to protect those
who signed cards it would "probably give them more security if we would write
a letter to the Company and inform the Company that these employees, their em-
ployees that were employed as truckdrivers had joined our union . And they agreed
at that time for us to send a letter." 6 The letter in question and its bearing upon
the issues herein will be discussed further below.
The meeting lasted about 2 hours and Shafer and Loyd returned to San Antonio.
Further meetings were held in Arrellano's home on or about August 4 and 11, and
another a week or so later. The record is none too clear as to the date of the fourth
meeting, but the Trial Examiner is convinced that it was sometime during the latter
part of August or early in September, before the hearing in the representation case
was held in Gonzales, Texas, on September 5, 1962.
The letter referred to above has caused the Trial Examiner considerable concern,
primarily because the Respondent denies that it received it and it is dated July 28,
1962, while the record shows that, if written at all, it was on Monday morning,
July 30, 1962. It is to be noted that it is signed by H. L. Loyd, Shafer's assistant.
Loyd testified that he dictated the letter to his secretary on Monday morning,
July 30, 1962, and gave her at the time the signed application-for-membership
cards, all of which bore the date they were signed, July 28, 1962, so that she could
put the names as they appeared on the cards in the body of the letter, which for
convenience is set forth herembelow in its entirety.
JULY 28, 1962.
Mr. JOE SALMA,
American Poultry & Egg Co.,
Gonzales, Texas
DEAR Snt: The below listed employees have made application to become
members of this Local Union and I request that you not discharge or lay
off any of these employees except in strict seniority order; and if you do we
will take this position that this was done on account of union activity and we
will be forced to file unfair labor practice with the National Labor Relations
Board and request that they be put back to work and paid for all time lost.
Drivers: Drivers:
Rivera Segura
Arrellano Caballero
Luna Casarres
Conger Koncaba
Navejar Howard
Yours very truly,
LOCAL UNION No. 657,
H. L. LOYD.
HLL:jm
To the Trial Examiner the most important evidence in the record in this regard
is found in Arrellano's testimony as to what transpired while he was in Slama's
office on the morning of August 4, 1962. According to his credible testimony he
went into Slama's office on the morning in question, which was Saturday, to turn
in his expense tickets, which was the custom at all times material herein. His
testimony is set forth hereinbelow:
O Quotes from Shafer's credible testimony.
AMERICAN POULTRY AND EGG COMPANY 657
Q. Have you ever seen that letter, Mr. Arrellano?
A. Yes.
Q. Where did you see it?
A. Mr. Slama's desk.
Q. When?
TRIAL EXAMINER: Who?
The WITNESS: Mr. Slama.
Q. (By Mr. OLSON.) Who is Mr. Slama?
A. He is American Poultry's manager.
Q. What is his first name?
A. Joe Slama.
Q. What day was it that you saw that letter?
A. A week after the 28th.
Q. Do you recall what day of the week it was?
A. On a Saturday.
Q. Did you see anybody's signature on it?
A. Mr. Loyd's.
Q. You saw Mr. Loyd's signature on the letter?
A. Yes, sir.
Q. Did you have a conversation with an employee that works in the union
office in San Antonio about the letter?
A. Yes, I talked to the secretary . When we signed the union cards on Sat-
urday, the 28th, Monday morning I called her, and asked her did Mr. Shafer
give her the names of the persons who had signed up, and then she said "No,
but I will get them later, and I am going to type them out and I will mail
them this evening , and Mr. Slama should get it tomorrow morning."
Tuesday morning I called her again and she said "I mailed it today. Mr.
Slama should get it this morning by the time you get back."
Q. All right.
You testified that you saw the letter on Mr. Slama 's desk?
A. Yes.
Q. And that you testified that was a Saturday?
A. That's right.
Q. Was that the Saturday following the union meeting , the first union
meeting?
A. Yes.
Q. Mr. Arrellano, what was the occasion you were in this office?
A. I was turning in my tickets for the week and getting a cash advance
for the following week.
Slama testified that the only communication he had from the Union as to its
organizational efforts among the truckdrivers was the copy of the petition in the R
case which was received by the Respondent around August 1, 1962.
After long and careful consideration the Trial Examiner is convinced and finds
that the Respondent received the letter in question . His finding is primarily predi-
cated upon the testimony of Arrellano who impressed him, in the main, as an honest
and straightforward witness, as will be evidenced by certain excerpts from his testi-
mony as to the circumstances under which he accepted a job on the suction machine
on or about August 13, 1962. Slama, at times, did not so impress the Trial Examiner
for reasons which will be apparent below. Suffice it to say that in the course of his
testimony at the hearing herein he evidenced a convenient lapse of memory when
interrogated as to certain testimony of other witnesses by such shopworn phrases as
"I don't remember" and the like.
Arrellano further testified that while he was in Slama's office on the morning of
August 4, 1962, Slama asked him "what did I know about the Union, and I acted as
if I was dumb and said nothing," and that Slama then said, "Yes you should, you
started it," and that he told him, "No, I didn 't. Jack Congers was the one that
started it." Arrellano further testified that in the course of their conversation Slama
also made several other statements as to what would happen if the Union "came into
the plant ." Since this incident it of considerable importance the following excerpt
from Arrellano 's testimony should likewise be inserted herein?
Q. What did he say to that?
A. Well, afterwards he said that Mr. Virgil was coming down to the plant
and was going to put a twenty thousand dollar icemaker but they had to cancel
it on account of the Union.
7 The "Mr Virgil" referred to In the excerpt from Arrellano 's testimony refers to
Virgil Clowe , the Respondent 's general manager.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did Mr. Slama say anything about your talking to the drivers?
A. Yes, he said that I had been talking to some of the drivers, and then I
admitted that I did.
Q. Do you recall anything else that was said during that conversation about
the Union?
A. Yes, he said if the Union come in a lot of people would be out of work.
Q. Do you recall anything else that was said about the Union? Anything
about the plant?
A. Yes, he said if the Union would come in the plant would probably have
to close.
Slama denied all of Arrellano's testimony except that the ice machine was men-
tioned in the course of the conversation. For reasons set forth above the Trial
Examiner credits Arrellano's testimony as to what was said and transpired during
the course of the above conversation and discredits Slama's denial thereof.
This brings us up to what the Trial Examiner considers not only one of the most
important issues herein but the most pestiferous as well. He has reference to the
incidents that led up to Arrellano's discharge on August 21, 1962.
Before we get into the incident that led up to Arrellano's discharge, the Trial
Examiner desires to point out that the record clearly shows that the Respondent was
well aware of the union activities of its truckdrivers, and that Arrellano was the ring-
leader of the group. This is evidenced not only by the testimony of Johnny
Kuntschik, foreman in charge of the truckdrivers, but by the testimony of other
witnesses at the hearing herein. In addition, a prehearing affidavit given by
Kuntschik to an agent for the Board prior to the hearing shows that he was kept well
informed of the union activities of the truckdrivers by one Joe Rivera, a truckdriver,
who was in attendance at all of the meetings at Arrellano's home, and who had also
signed an application-for-membership card along with the other truckdrivers at the
first meeting on July 28, 1962.8 An excerpt from Kuntschik's pretrial statement
follows below: 9
. . . Joe Rivera came to me after the second meeting the drivers had and told
me that employees had a meeting and he said he was going to vote against it.
He said he was going to kill it. I said he was old enough to know what he
wanted to do. He came to me and told me about the same thing two or three
times and I answered him about the same way. I believe that Rivera told me
the meetings were held at Arrellano's house. I never did ask him who were
at the meetings. [Emphasis supplied.]
Further comment on Kuntschik's role in the events we are concerned with herein
will follow below.
The record clearly shows that Arrellano was involved in an automobile accident
on Thursday, August 9, 1962. On direct examination, though he admitted that he
was involved in the incident we are concerned with, he was somewhat vague regard-
ing the details as to just what did happen. For example, on direct examination he
testified, in substance, that he was not aware of the fact he had hit and damaged the
other car. However, on cross-examination he gave a somewhat more realistic and
plausible account as to what happened. For this reason the Trial Examiner is
convinced that an overall appraisal of his testimony is the most logical way to
portray Arrellano's account thereof.
According to Arrellano's testimony, he was returning to Gonzales from a trip
when the accident occurred. At the time he "was coming from San Marcos into
Luling," Texas. Though the record is none too clear as to just when the accident
occurred, the Trial Examiner is convinced that it was somewhere in the late after-
noon, or around 5 p.m. By that time Arrellano had been on the road about 12
hours. His account of the accident on direct examination is inserted below.
Q. What happened on that particular Thursday when you were driving?
A. Well, I was coming from San Marcos into Luling, in between, and the sun
was hitting me on my right side of the eyes, and there was a car coming, and
it must have blinded me, I don't know, because I crowded this car off the road.
Q. Did you come into contact with the car?
A. No, sir.
Q. You didn't hit the car?
A. I didn't touch him. [Emphasis supplied.]
Q. What happened then?
8 See the Union's letter to the Company , supra.
9 See Respondent's Exhibit No. 2.
AMERICAN POULTRY AND EGG COMPANY 659
A. Well, I looked back in my mirror and I saw him, a lot of dust, and he
had stopped. I guess he stopped all of a sudden. He was pulling a trailer, a
small trailer . I practically stopped, but I saw that he had stopped, and I thought
nothing had happened to him, and I kept on going.
Q. Did he look all right in the mirror?
A. Yes, he did. And I passed Luling and about two miles right outside of
Luling, he was coming right behind me, and he blew his horn, and I pulled over,
and I was wondering why, so then he stopped and I stopped and he was really
mad at me, really sore, and he said was I trying to kill him, and I said "No."
He said "Well, you nearly killed us back there."
So I told him, "I didn't think that you were hurt or anything."
He said "No, we are not hurt. You almost turned us over."
I said "No, I saw your car stop all of a sudden."
And then he asked me how much family did I have, and I told him I had
seven kids.
And he said well, if the Company would fix the car, that is all this matter
will be.
Q. Did he have the trailer when he came after you?
A. No, he said he had unhooked it.
Q. I see. Did you look at the damage on his car?
A. Yes.
Q. What was wrong with it?
A. It was bended on the right fender in the back.
Q. It was a dent on the right fender?
A. On the right fender in the back.
On cross-examination he admitted that he had hit the other car, and that he did
not stop after the accident.
When he got back to Gonzales, around 7:30 p.m., he called Slama on the telephone
and told him about the accident. Slama told him to meet him at the office. When
'Slama arrived at the office Arrellano started to explain to him what happened;
however, Slama told him in substance to fill out a "blue form," which presumably
was a form that was used by the Company when its employees were involved in
automobile accidents, and turn it in to him the next day. Arrellano took the accident
report form home with him and filled it out. However, he did not return to the plant
until Saturday morning, August 11, 1962, at which time he turned the report over
to Slama. At the same time he turned in his expense "tickets" or accounts which the
truckdrivers were required to do on Saturday mornings. About this time Slama said
to him, "Wait a minute-turn in your tickets and get whatever you have over. We
are going to take you off the truck." 10 What transpired thereafter is best told in
the following excerpt from Arrellano's testimony on direct examination:
^Q. What did he say they were going to do with you?
A. He said they were going to put me to work in the plant.
,Q. Did he say anything about discharging you?
A. No.
Q. Did he give you a choice?
A. No.
Q. He just told you they were going to put you in the plant?
A. Yes.
Q. What did be say your job would be in the plant?
A. He said they would put me on the suction machine . He said him and
Johnny Guerra had talked about it already.
,Q. Who is Johnny Guerra?
A. He is the supervisor of the dressing room.
,Q. Did anybody come in the office?
A. Yes, he called Johnny Guerra.
,Q. What did he say to Mr. Guerra?
A. Well, he told him, said "Manuel is going to work in there with you. You
said you needed somebody to run the, to operate the suction machine."
And Johnny Guerra just said "Yes, sir, yes, sir." That is all he said.
Q. Did he ask Guerra before he told him that he was going to put you in
there, did he ask him if it would be all right?
A. Well, he said he had talked to him.
10 Quotes are from Arrellano's credible testimony.
727-083-64-vol. 144-43
660 DECISIONS OF NATION AL LABOR RELATIONS BOARD
At this point we should consider the Respondent's policy as to its truckdrivers who.
have been involved in traffic accidents . The importance of its policy will be apparent
below. The record clearly shows that it had been the Respondent's policy for years
to take a driver who had been involved in two accidents off his route and assign him
temporarily to a job in the plant. The record is replete with testimony as to this
policy, particularly as to one Ben Semler . Suffice it to say at this point that Semler
had been involved in two serious accidents about a year before Arrellano was involved
in the incident of August 9, 1962.
Though there was little property damage involved in Arrellano's case, nevertheless
it was of serious nature because of the fact that he did not stop after he hit the other
car, as he should have done. In other words his failure to stop and ascertain what,
if anything, had happened, put him, in the vernacular of the times, as a "hit and
run" driver. Though the Trial Examiner is concerned that Arrellano's conduct was
unintentional, nevertheless we cannot, either as individuals or a group, ignore the facts
of life, such as public reaction to such conduct.
At the time Arrellano was taken off the truck and transferred to the eviscerating
department, Slama had before him his record of previous traffic violations, which
were listed in a report which the Respondent had received from the Texas State
highway department several months before the accident we are concerned with herein
occurred.
Arrellano went to Slama and talked to him about his difficulties with the State
highway department "in the early part of 1962 " During the course of their con-
versation Slama cautioned him about his driving and told him to be careful in the
future.
The record clearly shows that Arrellano was well aware of the Company's policy
as to its drivers who became involved in accidents during the course of their em-
ployment as truckdriver.
At the time Arrellano was taken off the truck and transferred to the eviscerating
department to operate the suction machine he was well aware of the nature of the
work and the difficulties that he might encounter in operating it. His testimony is
couched in plain and unequivocal language, and, quite frankly, favorably impressed
the Trial Examiner as to his credibility as a witness . For this and other reasons
which will be apparent the Trial Examiner inserts below the following excerpt from
his testimony:
Q. What did he tell you?
A. He said that he had another job for me, he was going to put me in the
dressing room, on the suction machine.
Q. Did you object to that?
A. No, sir.
Q. Did you voluntarily-
A. I said I would try anything.
Q. All right. At that time you made no protest of going on the suction
machine, did you?
A. No, sir.
Q. You took that to mean that you were being pulled off the truck, didn't
you9
A. That was what he told me, yes, sir.
Q. In other words, he told you that you were no longer a truckdriver, is
that right, Mr. Arrellano?
A. Yes, sir, that's right.
Q. And you understood fully that your services as a truckdriver had ended
at that time, didn't you?
A. Yes, sir.
Q Now, did you have a choice in the matter? You could have quit , couldn't
you?
A. Yes, sir.
Q. But you didn't choose to quit, did you?
A. No, sir.
Q. You chose to take the job that he offered you?
A. Yes, sir.
Q. And he described the job to you as the suction machine, is that right?
A. Yes.
Q. So then had you seen that suction machine work before you went into
that job?
A Yes, sir.
Q Did it look like an impossible task to you or did you think you could
do it9
AMERICAN POULTRY AND EGG COMPANY 661
A. Well, I was going to try.
Q. All right.
From the foregoing it is obvious that Arrellano was not only well aware of the
nature of the job he was assigned to by Guerra, but in the circumstances that existed
at the time, August 11, 1962, glad that the Respondent had been considerate enough
to keep him on its payroll.
It is to be noted at this point that Arrellano started to work on the suction machine
on Monday morning, August 13, 1962. On the next day, Tuesday, August 14, 1962,
the Respondent posted the following letter or notice to its employees on its bulletin
board in the plant.
FORT WORTH, TEXAS,
August 14, 1962.
To All Employees:
It has come to our attention that some employees have been lead to believe
they can expect to be discharged account their part in forming a labor organiza-
tion if the organization is not successfully formed.
This information is incorrect and we want each and every employee to know
this company's position in this regard.
Although the management of this company does not feel such an organization
is either needed or desired there will be no discharges on this basis either during
this activity or afterwards.
The laws of the State of Texas gives each and every person a right to work
whether or not they belong to a labor organization and we certainly intend to
respect the laws 100%. At any time anyone of you want to know this com-
pany's position on any matter do not hesitate to talk to either your supervisor
or the manager of this plant.
J. A. SLAMA, Manager
One of the Trial Examiner's reasons for setting forth the above letter is that in
his opinion it reaffirms his reasoning and finding as to the Union's letter dated
August 1, 1962, to the Respondent concerning the organizational efforts of the
truckdrivers and its veiled warning to the Respondent to refrain from interfering with
their rights under the Act. As the Trial Examiner sees it, the Respondent posted the
above notice to dispel the idea that it had transferred Arrellano to the eviscerating
line because of his known union activities. In the circumstances discussed and
described herein the Trial Examiner well understands the reasoning of Slama and
other officials of the Respondent at the time they posted the notice, and deems further
comment at this point unnecessary. Suffice it to say, however, that the Respondent
had a right to post such a notice at the time it did or at any time it chose to do so.
The Alleged Violations of Section 8 (a) (3) and (1) of the Act
At long last we come to the disposition of, to put it mildly, the most pestiferous
issue not only in this case, but in any other that has come before the Trial Examiner in
more than a decade. He has reference to the contention of the General Counsel
that the Respondent treated Arrellano disparagingly by assigning him to operate the
suction machine on the eviscerating line; and that such conduct was independently
violative of Section 8 (a) (3) and (1) of the Act.
As indicated above, Slama had talked to Guerra sometime between the evening
of August 9, when Arrellano first told him about the accident, and Saturday morning,
August 11, 1962, when Arrellano turned in his report of the accident. The record
shows that Guerra was present at the time Slama informed Arrellano that he was
being taken off his truck route and transferred to the suction machine on the eviscerat-
ing line which was under Guerra's supervision.
At the time the transfer was made Albert Rodriquez was operating the machine,
and had been for quite some time. The record shows that Rodriquez was an
experienced and skilled employee, and, as Arrellano put it in his testimony at the
hearing herein, he could handle any job in the plant. From the record the Trial
Examiner is convinced and finds that Rodriquez was familiar with all the operations
on the eviscerating line at all times material herein. When this factor is taken into
consideration then the Respondent's contention as to why Rodriquez was t, en off
the suction machine is understandable. Its contention in this regard will be dis-
cussed below.
According to Guerra he had discussed with Slama the possibilities of taking
Rodriquez off the suction machine and using him as his assistant. One of the
reasons he wanted him to take over part of his work was because of his health.
The securing of a replacement for Rodriquez was an important factor. Consequently
when Slama asked Guerra if he could use Arrellano in the eviscerating department,
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he told him he was willing to do so because he felt that Arrellano could be trained to
operate the suction machine, and that Rodriquez could then assume his duties as his
assistant. The result of the discussion among Slama, Guerra, and Arrellano on
the morning of August 11, 1962, was that Rodriquez would be taken off the machine
and Arrellano would replace him, on Monday, August 13, 1962.
When Arrelano reported for work on Monday morning, August 13, 1962, he was
put on the suction machine. Rodriquez and Guerra worked with him for at least the
first 3 days, and instructed him how to operate the machine. At this point the Trial
Examiner feels that he should insert herein below a description of and his interpre-
tation of the testimony in the record as to its function and operation.
The machine is a nozzle about 16 inches long and weighs about 6 pounds. In
many respects it looks like the nozzle that is on a gasoline hose at filling stations.I"
It is attached to a hose which in turn is attached to a suction tank which is under 35
or 40 pounds of air pressure at all times. The nozzle is attached to the ceiling of
the eviscerating room by a cable. As the chickens come down the line the operator
pokes the nozzle inside the chicken from the rear and pulls a trigger. At this time
the air sucks out the lungs and sex glands and the chicken goes on to the next man
who pulls it down and cuts off its neck. From there the chicken moves on down
the line for further processing until it finally comes to the inspectors for the Depart-
ment of Agriculture who examine the carcasses to see if they meet the standard of
the Pure Food and Drug laws. It was at the latter station that Arrellano' s derelic-
tions in operating the suction machine were first discovered and reported to Guerra
by the veterinarian in charge of the inspecting crew.
At the hearing herein all parties agreed that Guerra's testimony as to what the
veterinarian in charge told him about Arrellano's handling of the suction machine,
which was to the effect that he was missing the lungs and that if he continued to do
so he was going to cut the line down to "twenty-two birds a minute." For reasons
which will be likewise apparent below the Trial Examiner feels that at this point
it would be well to insert the following excerpt from Guerra's testimony as to the
warning he received from the veterinarian and its relationship to Arrellano's dis-
charge on August 21, 1962.
Q. Did you discharge Arrellano?
A. Yes, I did.
Q. Was that on account of union activity?
A. No, that don't have nothing to do with it.
Q. Why was he discharged?
A. Well, for the past four days the Doctor was writing me every day about
Arrellano was missing the lungs, and I would talk to the Doctor and say,
"Well, maybe tomorrow he will do better. Let's give him a chance." So he
finally got to the point that he said either-
Mr. PENSHORN: If it please the Examiner, this is going into some more
hearsay statements.
TRIAL EXAMINER: I said subject to-I understand it. I have had these cases
before.
A. If the removal of the lungs was not out of the bird the way they should
be, he would slow the line down to about, say, twenty-two birds a minute.
After long and careful consideration of the record and the briefs of the parties
the Trial Examiner reaches the following conclusions regarding the position of the
parties as to the discharge of Arrellano by the Respondent on August 21, 1962. In
arriving at his ultimate conclusions the Trial Examiner assures all parties that he
had read and reread the record herein and that his ultimate findings herein are
predicated upon the record considered as a whole, and he will let the chips fall
where'er they may.
The General Counsel contends that Arrellano should never have been assigned
to the eviscerating line, and that he should have been placed in the packing depart-
ment . His reasoning in this regard is predicated on the theory that it was and had
been the policy of the Respondent for quite some time to transfer its truckdrivers
who had been taken off their trucks for one reason or another to the packing depart-
ment . In support of his position in this regard he relies primarily upon the fact that
Semler , who likewise had been involved in several accidents, was placed in the
packing department after he was taken off his job as a truckdriver. The Respondent
on the other hand contends that there were no jobs available in the packing depart-
ment at the time Arrellano was taken off his truck. Though the record is none too
11 Counsel for the Respondent brought a nozzle to the hearing so that all parties could
inspect it and thus understand what the witnesses were talking about.
AMERICAN POULTRY AND EGG COMPANY 663
clear as to the job situation in the packing department at the time that Arrellano
was taken off his truck , it does show that the Respondent had at times deviated from
its policy in this regard . This is well illustrated in the case of Navejar who was given
a job on the eviscerating line instead of the packing room a few weeks before the
incident as to Arrellano arose. Though Navejar was not operating a suction machine,
he was pulling feathers off the chickens , which to many of us would be just as
distasteful and irritating as the suction machine job was to Arrellano, which the
Trial Examiner is convinced was one of the main reasons for his failure to do a
satisfactory job while he was on the machine. As the Trial Examiner sees it, the
"sucking" of "innards" out of dead chickens at the rate of 24 per minute is a far,
cry from driving a truck over the countryside in and around the Guadalupe River
valley. In the circumstances Arrellano's mental attitude toward the job in question
is understandable, at least to the Trial Examiner. At this point the Trial Examiner
desires to point out that Navejar was put on the eviscerating line after he had been
injured in the course of his employment , while Arrellano was put on it after he had
been involved in a hit and run accident. As far as the record is concerned there is
no evidence that Navejar was dissatisfied with his "temporary job," or that any
charges were made against the Respondent because it did not take him off the line
after he signed an application for membership in the Union, and that by keeping
him on said line it was treating him in a disparaging manner because of his member-
ship in and activities on behalf of the Union. Though to some this observation of
the Trial Examiner may seem trivial and nonsensical but not to him when he con-
siders it in the light of the contentions of the General Counsel that Arrellano should
have been placed on this job or that job and somebody else moved to another job
and on and on ad infinitum. Quite frankly, it is for this reason that the testimony
in the record , in this regard , has been most difficult to fathom . It is quite true that
the Board has in the past been faced with situations where an employee has been
treated disparagingly by his employer because of his union activities and there are
cases to support the overall theory of the General Counsel . However , in those cases
the theory of the General Counsel was supported by a preponderance of the evidence
considered in the light of the record as a whole. In the considered opinion of the
Trial Examiner the record herein is not. While it is true there is "suspicion," but
suspicion and conjecture are not evidence . In such circumstances the Trial Examiner
has no alternative but to recommend below that this particular allegation in the
complaint be dismissed in its entirety.
We now come to the contention of the General Counsel that Arrellano was not
treated fairly after he started to operate the suction machine, particularly as to rest
periods. Here again we are faced with a difficult and annoying factual situation.
As indicated above, Albert Rodriquez operated the suction machine before Arrel-
lano was placed on it. When Rodriquez was operating it the next employee on the
line was Rudy Perez, whose regular job was cutting the necks off the chickens. Both
had worked on the "line" for quite some time, and were able to do each other's
work. As a result it was the practice for them to change jobs. However, when
Arrellano took over the job, Perez was transferred to the trucking department and
given Arrellano's truck to operate. Consequently when Arrellano took over the
machine the situation changed . This was his first job on the eviscerating line and
of course he was in no position to take over the neck-cutter's job , from time to time,
primarily because his main concern was to learn and become accustomed to his job
on the suction machine. As a result of this and other obvious reasons such as the
monotony of the job, it was unquestionably difficult for him to get acclimated to it.
As indicated above Rodriquez worked with Arrellano the first 2 days he was on the
job. Thereafter he was more or less on his own , except for short periods when he
would be relieved by Guerra, and Amando Aquirre, who took over the neck-cutting
job when Perez was assigned to Arrellano's truck. A day or so after he took over
the job he had some trouble with his hands swelling up. Arrellano testified that he
complained to Guerra about his hands. Guerra admitted in the course of his testi-
mony that he had told him on one occasion that his hands "hurted ." Even so, the
Trial Examiner is convinced that Arrellano was not seriously handicapped by his
condition , and that it was of a temporary nature. A compelling reason for his
conclusion is the fact that if his condition was of a serious nature, then the Respond-
ent itself by the very nature of its business operation would have been forced to
remove him from the line for economic reasons, since the sucking of the lungs out
of the chickens was an important and necessary part of its eviscerating process.
Another reason for the Trial Examiner 's ultimate conclusion is the fact that Arrellano
neither sought medical attention for his condition , nor, insofar as this record is
concerned , filed a claim for workmen 's compensation , which would have had juris-
diction over a condition such as his, since it clearly arose out of and was sustained
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the course of his employment . In the circumstances the Trial Examiner is con-
vinced that the above -discussed condition of Arrellano was of a temporary nature
and was not the primary cause of his difficulties in operating the suction machine.
The Respondent 's position is that it discharged Arrellano for cause. As the Trial
Examiner sees it the Respondent 's main defense to this particular allegation in the
complaint was to the effect that the burden of proof was on the General Counsel to
prove his case by a preponderance of the evidence considered in the light of the
record as a whole. In such circumstances the Trial Examiner after long and careful
consideration will likewise approach and dispose of the issue as to Arrellano in similar
fashion . Singularly enough its defense is found in the testimony of Arrellano himself
as to his difficulties in operating the suction machine, and his conversation with Guerra.
As pointed out above , Arrellano had been warned by Guerra to be careful about
"missing the chickens ," that is, letting them go by on the line without sucking out
their lungs . Arrellano's testimony in this regard was as follows
Q. Did Mr Guerra say anything to you about you have to speed up?
A. He warned me twice on a Friday and on a Monday He said if I didn't
learn he would have to let me go
Q. Were you trying?
A. I was doing my best . I told him that . I told him I couldn ' t do no better.
Q. And did he say anything to you about missing some chickens9
A. Yes, he did I told him I was doing my best.
The foregoing incident occurred on or about Friday, August 17, 1962. According
to Arrellano , Guerra warned him again on Monday , August 20 , 1962, and in sub-
stance told him that if he did not do a better job he would have to discharge him,
which he did on the next day, Tuesday , August 21 , 1962. What transpired at that
time is, in the considered opinion of the Trial Examiner , best told in the following
excerpt from Arrellano's testimony on direct examination.
Q. You ,testified that Johnny Guerra spoke to you about speeding up. Did
he ever say anything to you about discharging you?
A Yes, on that Friday he said if I didn 't learn he would have to let me go.
He also told me that on a Monday morning.
Q. He told you that the following Monday?
A. Yes, sir.
Q And you say your last day was Tuesday?
A. Yes, sir.
Q. What happened on that day?
A. Well, he just came by and after we were through cleaning up, and he
said "Manuel , I am going to have to let you go " Said "Go see Johnny
Kuntschik and ask him if he has anything for you " So
Q. If he has any what?
A. If he has anything for me He meant any work for me
Q. Uh-huh.
A So I went over and asked Johnny Kuntschik , I asked Johnny , "Johnny
Guerra told me to come see you, if you had any work for me ," and he sort
or smiled and said "No , I am sorry , I don't have anything for you "
So then afterwards I just went looking for Johnny Guerra and asked him
for my check and a statement for my unemployment , and he went and got my
check, and he said Mr Slama said that they didn't give no statement for
unemployment
The next day I went to Yoakum and I applied for unemployment, and the
lady gave me a form, and said for me to give it to her the following
Wednesday.
The following Wednesday, when T filed for unemployment T gave it to her,
and I stated that I thought that T had been laid off for union activities
Conclusion as to the Discharge of Manuel V. Arrellano
It has been well said that "Great cases like hard cases make bad law." i2 So is
it here regarding the issue as to Arrellano . The Trial Examiner is convinced after
long and careful consideration of every aspect of the case at hand that the General
Counsel has failed to sustain his contention as to Arrellano by a preponderance of
the evidence considered in the liizht of the record as a whole To be sure there
is strong suspicion that he was discharged because he was the "ringleader" of the
Union, a fact that was well known to the Respondent at all times material herein,
12 From the decision of Justice Holmes in Northern Secnritiec Co v United States.
193 U S 197, 400 (1904).
AMERICAN POULTRY AND EGG COMPANY 665
but suspicion is not evidence. Neither the Trial Examiner nor any trier of the
facts can or should predicate findings of fact upon either suspicion or conjecture.
Consequently any predilections of the Trial Examiner are beside the point. Many
factors have entered into his ultimate determination of this pestiferous issue. For
example, it should be borne in mind that Arrellano was involved in a "hit and run"
accident while driving one of the Respondent's trucks. Regardless of past policy
of the Respondent towards its truckdrivers who had been involved in accidents, it
would have been justified in discharging him for this unfortunate incident, regard-
less of his activities for and on behalf of the Union, all of which were well known to
it at the time the accident occurred; but this it did not choose to do, and retained
him in its employment in the circumstances discussed at great length above. Though
the job he was assigned to, operating the suction machine, was not only difficult but
distasteful as well, to Arrellano, it was at least a job. Moreover it gave him about
the same number of hours per week as he had on his truck, and paid the same rate
per hour, which was an important factor to him since he had a large family to
support. When these factors are considered in the light of the record as a whole,
and the testimony as to who should have been put on the suction machine and who
should have been taken off this job and that job and Arrellano put there in his
place, and so on and on ad infinitum, then, to the Trial Examiner at least, a doubt-
ful situation arises. Such doubt negates a preponderance.
In all the circumstances discussed and described above, the Trial Examiner is
convinced and finds that the General Counsel has failed to sustain his burden of
proof as to the discharge of Arrellano. Consequently he will recommend herein
that the complaint be dismissed in its entirety as to the discharge of Arrellano.
As the Trial Examiner sees it, in the final analysis what he has been faced with
herein regarding the case as to the discharge of Arrellano, is well phrased in the
following quotation from one of Whittier 's poems:
For of all sad words of tongue
or pen,
The saddest are these: "It
might have been!"
[Maud Muller (1856) Stanza 53]
And so is it here
Though the Trial Examiner has disposed of the case as to the discharge of
Arrellano, and other allegations in the complaint that alleged that he had been
treated disparagingly by the Respondent when it transferred him to the eviscerating
line, there yet remain for disposition certain allegations in the complaint regarding
specific violations of Section 8(a)(1) of the Act that are concerned with statements
made to Arrellano by officers and agents of the Respondent at times material herein.
The Trial Examiner has reference to statements made by Slama to Arrellano on
August 11, 1962, which have been set forth hereinabove. Since the statements
referred to are on their face clearly intimidating, particularly since they were made
to the recognized "ringleader" for the truckdrivers in their efforts to exercise their
rights under the Act, the Trial Examiner finds that Slama's statements to Arrellano
were violative of Section 8(a) (1) of the Act.13
Other alleged violations of Section 8(a) (1) of the Act will be disposed of below.
Alleged Independent Violations of Section 8(a)(1) of the Act
As indicated above the complaint as amended alleges, in substance, that Slama,
Guerra, Leando, and Kuntschik, engaged in conduct violative of Section 8(a)(1)
of the Act, by threatening employees, promising them benefits, and interrogating
them as to their union activities, on various dates between July 30 and September 1,
1962 The General Counsel in support of his position in this regard offered the
testimony of Arrellano, Juan Caballero, Pedro Navejar, Jr., and John A Kuntcshik,
whom he called as an adverse witness under Section 43(b) of the Federal Rules of
Procedure.
Let us first consider the testimony of Juan Caballero. At the time of the hearing
herein Caballero was not an employee of the Respondent, though he had been at
times material herein from sometime in October 1961 to on or about January 4,
1963. During this entire period, except for about a month in the winter of 1962,
he was a truckdriver. He was also one of the truckdrivers that attended the
meetings at Arrellano's home, and signed an application card for membership in
the Union along with the other truckdrivers on July 28, 1962.
13 See supra for the Trial Examiner's conclusions and findings as to Slama's credibility
as a witness.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Caballero, about 2 weeks after he signed an application for member-
ship in the Union, he had the following conversation with Slama:
Q. All right. What did he say to you, if anything?
A. I walked in the door and handed over my tickets, and he told me, "You'all
boys have got me in some hot water by trying to vote the Union in."
Q. All right.
TRIAL EXAMINER: I couldn't hear it. Said what?
Q. (By Mr. OLSON.) Would you repeat that for the Examiner, please?
A. He said that "You'all boys are trying to-got me in some hot water by
trying to get the Union in."
TRIAL EXAMINER: All right.
Q. (By Mr. OLSON.) All right. Did you say anything to Mr. Slama?
A. No, I didn't.
Q. How long were you in the office?
A. About five minutes.
He further testified that this was the only conversation he had with Slama about
the Union. As the Trial Examiner sees it Slama's remarks to Caballero contained
no threats of reprisal and as fas as he is concerned were more or less in a jocular
vein . In the circumstances the Trial Examiner will ignore Caballero's testimony in
this regard, not only for the reasons stated but for the further reason that the
incident in question is not specifically alleged in the complaint as amended.
Caballero further testified as to a conversation he had with Foreman Manuel
Leando about a week after his conversation with Slama.14 Caballero's account of
the incident in question is best told in the following excerpt from his testimony,
which stands uncontradicted and undenied in the record, and is fully credited by the-
Trial Examiner.
Q. All right. Did you ever have a conversation with Manuel Leando?
A. I did.
Q. And who is Manuel Leando?
A. Sir?
Q. Who is he? What is his job?
A. He is supervisor of the packing crew.
Q. And was the conversation about the Union?
A. Yes, sir.
Q. What day of the week was it?
A. It was on Saturday evening.
Q. About how long after this conversation was Joe Slama?
A. It must have been, oh, I would say about a week or so.
Q. And what did he say to you about the Union?
A. Well, I came in from a route from Corpus, I think it was, and I was.
sitting in the lunch room, trying to write my tickets out so I could turn them in,
and I asked him what did he think about the Union, and he told me if the plant
would go union that we wouldn't have the security of our jobs, that if it went
union , the plant would have to close down, and another thing, he said if he
happened to meet me and my wife on the street, him and his wife wouldn't
speak to us because they would find us guilty, that we was guilty of trying to-
the plant would be closed because we was guilty of it, we would be the cause
of it.
Q. During that conversation did he say anything about a house, buying a
house?
A. Yes, he said if the Union would come in that we wouldn't have the
security of a job, that we wouldn't be able to buy a house or a car because we
would be afraid the plant might close any day.
While it is true that Caballero broached the subject of the Union to Leando in
the course of their conversation, nevertheless Leando's statements went far beyond
the mere expression of an opinion ; they were, to say the least, not only intimidating
but threatening as well. Though Leando's threat of social ostracism to Caballero
and his wife was on its face disgusting and in bad taste, nevertheless, the Trial
Examiner does not consider it of a too serious nature for the reason that there is,
no evidence that he and his wife were either "status seekers" or personal friends of
the Leandos . In the circumstances he will ignore Leando's comments. Suffice it
to say that they stand uncontradicted and undenied in the record.
14 See paragraphs 6(f), (g), and (h) In the above excerpt from the complai[,t.
AMERICAN POULTRY AND EGG COMPANY 667
As indicated above, the Trial Examiner is not unmindful of the fact that it was
Caballero who brought up the subject of the Union in his conversation with Leando,
nevertheless for reasons stated above the Trial Examiner finds that by such state-
ments the Respondent, through its foreman , Manuel Leando, engaged in conduct
violative of Section 8(a)( I) of the Act.
One of the most important witnesses called by the General Counsel in support
of his case-in-chief was Pedro Navejar, Jr. The record shows that his testimony was
not only important as to certain specific allegations in the complaint regarding viola-
tions of Section 8 (a) (1) of the Act, but that his ballot was challenged by the Re-
spondent at the Board election on October 13, 1962.
According to Navejar's credible testimony he was employed by the Respondent
as a truckdriver on or about May 14, 1962, and worked continuously in this capacity
until on or about July 5, 1962, when he sustained an injury in the course of and
arising out of his employment with the Respondent, while on a trip to Corpus Christi,
Texas. Since his testimony as to what transpired after his injury on July 5, 1962,
has an important bearing on the representation case, the Trial Examiner feels that
he should set forth below a summation of his testimony.
According to Navejar the accident referred to occurred while he was stacking
`boxes at the loading dock in Corpus Christi "when my foot just slipped." 15 The
"accident" did not cause him any serious difficulties until Sunday night, July 8, 1962.
On that date he reported for work as usual and told Kuntschik about the incident,
.and that he was unable to operate the truck. The result of their conversation was
that Kuntschik told him to report the accident to Slama the next day and to "go see
Dr. Cruz," which he did. During the next week or two he reported to the plant
,every day or so and was given what is referred to in the record as a "hot-shot
delivery" on occasion to Yoakum, Texas.16 During this period he was being treated
by Dr. Cruz for his injuries, who told him that he was not to drive a truck until
he gave him a release.
Navejar further testified that part of the medication consisted of the taking of
pills and shots, which made him dizzy. He went to Kuntschik and told him about
his condition and that Dr. Cruz had told him not to drive a truck until he had given
him a release. As a result of Dr. Cruz' instructions to Navejar he was transferred
to the eviscerating line under the supervision of Foreman Guerra. The job assigned
him was in the "picking department," where he pulled the feathers off the chickens
as they went down the line. Navejar was assigned to the "picking line" somewhere
around July 28, 1962, and was so employed at the time of the hearing herein.17
According to Navejar he had a conversation with Guerra somewhere around the
first week of August 1962, in which he was queried by Guerra about the Union.
According to his testimony, the conversation took place shortly after the Respondent
received a copy of the Union's petition for an election. Since Navejar's testimony
on cross-examination is clear and to the point, the Trial Examiner feels that the
'following excerpt therefrom should be inserted herein below:
Q. Now, wait a minute.
Sometime after the 28th you had a conversation with Johnny Guerra and
tell me what the question is he asked you.
A. He want to know if I was going to vote for the Union.
Q. And what did you say?
A. I told him I didn't know. Then he told me if the Union came in that some
innocent people would be out of work.
Q. You said a moment ago he asked you one question and then walked off.
Now I am trying to get exactly what happened, please , sir. Now, let's take it
,one at a time.
Tell me again what he asked you.
A. He wanted to know if I was going to vote union.
Q. And what did you say?
A. I told him I didn't know.
,Q. Did he say anything else or did he turn around and walk off?
A. Well, he turned to me, this is what he said at the same time he was
talking to me, he said if it go union that a lot of innocent people will be out
of work.
15 Quotes from Navejar 's credible testimony.
10 As the Trial Examiner interprets the record a "hot-shot delivery " is made in a small
delivery truck and is only used for the delivery of small orders to nearby customers.
Yoakum is about 30 or 35 miles southeast of Gonzales.
17 See infra, for further comment as regards Navejar's job status at the time of the
election on October 13, 1962.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. All right . Now, was that all he said?
A. Yes, sir, and he walked off.
He further testified that this was the only conversation he had with Guerra in
which the Union was mentioned throughout his entire tenure of employment with
the Respondent.
Guerra denied in toto Navejar's testimony as to the above incident.
Here again the Trial Examiner is faced with an issue regarding the credibility
of the witnesses who testified for the parties at the hearing herein. He not only
heard their testimony but he carefully observed their demeanor while they were
testifying. After long and careful consideration the Trial Examiner credits Navejar's
account of the conversation and discredits Guerra's denial thereof, and finds that he
made the statements attributed to him by Navejar, and that they, standing alone,
were violative of Section 8(a)(1) of the Act, when considered in the light of
the record as a whole, particularly the conduct of other supervisors for the Re-
spondent during this crucial period, as will be evidenced by his findings below
regarding Kuntschik's activities during the period in question.
According to Navejar's credible testimony, Kuntschik talked to him at least three
times about the Union. These conversations occurred about a week after he had
been transferred "into the plant," that is, placed on the eviscerating line picking
chickens, and were on successive days, Monday, Tuesday, and Wednesday. His
testimony was as follows:
He just told me how to vote, what is right, and he told me if it did go in a
lot of innocent people would be out of a job, and then he told me if the
Union didn't go in I could have my M route back.
Q. M route, what does that M route stand for?
A. It stands for the valley, that would be Mission, Edinburg, all the way
down to Harlingen.
Q. Is that. the route you had before you were
A. Yes, sir.
Q. Before you got hurt?
The WITNESS: If the Union didn't come in, 1 could have my route back.
He further testified that Kuntschik told him in one of these conversations that a
"Mr. Collier , would close the plant ." From what the Trial Examiner is able
to glean from the record the "Mr. Collier" referred to by Navejar in his testimony
was Virgil Clowe, supervisor of production plants.
In another conversation, during this same period, according to Navejar, Kuntschik
told him in substance that Gonzales was a small town and, "if a union come in it
wouldn't work , the town is too small."
The last conversation that Navejar had with Kuntschik about the Union occurred
sometime in the latter part of August or early in September 1962. Though the date
of the above conversation is none too clear in the record, the Trial Examiner is
convinced that it was "a few days" 18 after Arrellano was discharged , which the
record shows, and the Trial Examiner has found above, was August 21, 1962. In
the circumstances the Trial Examiner finds that the conversation in question took
place sometime around August 25, 1962.
Kuntschik on direct examination specifically denied that he made the statements
attributed to him by Navejar. However, on cross-examination he admitted that
he had talked to him about the Union.
Kuntschik in a pretrial statement given to a Board agent before the hearing
herein admitted that he had interrogated one Charles Howard as to his union ac-
tivities. Since the Trial Examiner is confronted with an issue as to the credibility
of Kuntschik , he feels that the following excerpt from his pretrial statement should
be inserted herein :
I asked Chas . Howard if he had signed a union card and how they come
about. He told me that it was on a Sunday after noon and that Manuel
Arrellano and Wally Casares come and got him and took him up to Manuel
Arrellano's house. He said there was a white man there and he didnt' know
who he was He said he read something to him and they asked him to sign
it Howard said he told them he wanted to take it home to his wife because
he could not read but that they told him to go ahead and sign it so he went
ahead and signed it, I asked him if he knew what he was signing and he said
no, I said you should not sign anything when you don't know what it is. You
could sign your house away
18 Quotes from Navejar 's testimony
AMERICAN POULTRY AND EGG COMPANY 669
In view of Kuntschik's admitted interrogation of Howard as to his union activities
and his further admission on cross-examination that he had discussed the Union
with Navejar the Trial Examiner is convinced and finds that Kuntschik made the
remarks attributed to him by Navejar, who impressed him as an honest and forth-
right witness while on the other hand Kuntschik did not so impress him. The
Trial Examiner's observation and findings regarding the issue as to the credibility
of the witnesses, Navejar and Kuntchik, has been predicated upon his observa-
tion of them while they were testifying and in the light of their testimony as a
whole, not out of context, but when considered on the record herein in its entirety,
both oral and documentary.'°
In all the circumstances the Trial Examiner finds that Kuntschik's statements to
Navejar constituted interference with, restraint, and coercion of the rights guar-
anteed employees under the Act, and consequently were violative of Section 8(a)(1)
thereof.
The complaint herein alleges in paragraph 6(c) that: "On or about August 11,
1962, J. A. Slama threatened employees that Respondent would refuse to purchase
fixed assets, if the Union came in." According to the record, the proof offered
by the General Counsel in support of this allegation was through the testimony
of Arrellano, who referred to an "ice machine" when he was interrogated regarding
his conversation with Slama on Saturday morning, August 11, 1962 20 The Trial
Examiner has inserted above an excerpt from Arrellano's testimony, and has found
that Slama made the statement attributed to him by Arrellano Even so, the Trial
Examiner is convinced that this particular statement by Slama when considered in
the light of other testimony in the record was not in and of itself violative of the
Act. His reasoning is predicated upon the record as a whole, which quite frankly,
he feels, does not justify a specific finding in this regard.
Having found as above the Trial Examiner will recommend the dismissal of the
complaint as to Arrellano , and that the Respondent cease and desist from engaging
in conduct violative of Section 8 (a) (1) of the Act.
B. The objections to the election in Case No. 23-RC-1949
As indicated above the Union filed its petition in the representation case on or
about August 1, 1962. Thereafter a hearing in the R case was held in Gonzales,
Texas, on September 5, 1962, in the Gonzales County courthouse.21 Thereafter on
September 21, 1962, the Regional Director issued his Decision and Direction of
Election. In his decision the Regional Director made the following finding which
the Trial Examiner deems pertinent to the issues herein, for reasons which will be
obvious to all below-
The Petitioner seeks only a unit of truck drivers and the parties stipulated
that the appropriate unit is one of all employees who are regularly employed
as truck drivers at the Employer's Gonzales, Texas, plant. The only issue
arising as to the unit concerns two employees who the Petitioner would exclude
as not being regularly employed as truck drivers and who the Employer would
include. The record shows that one of these employees, Ben Semler, makes
emergency deliveries and at times drives a truck for an entire week. Other-
wise, he, as do the drivers as to whom there is no dispute, performs work in the
plant such as working in the packing room and assisting as a shipping clerk.
The other employee in dispute, Frank Sestak, was characterized by the Em-
ployer's manager as a regular driver. The manager, who was the only witness
as to these employees' duties, testified that Sestak's duties in addition to driving
a truck include performing certain maintenance functions such as greasing
trucks and seeing that maintenance is kept up on the trucks. Sestak's driving
duties have been temporarily curtailed because of ill health but he continues to
drive a regular route once a week, and be may drive an entire week on occasion.
As it appears from the record as a whole that both of these employees spend
a substantial part of their time driving trucks, are classified as truck drivers by
the Employer, and work under the same immediate supervision as the other
truck drivers, I find they have a community of interest with the other drivers
who the Petitioner seeks. Accordingly, I shall include them in the unit. See
E. H Koester Bakery Co., Inc, 136 NLRB 1006
0 See Respondent's Exhibit No 2, Iuntschik's pretrial statement
20 See supra
21 See infra for importance of this observation
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election was held on October 13, 1962. The tally of ballots is set forth
below.
1. Approximate number of eligible voters ------------------------ 9
2. Void ballots---------------------------------------------- 03. Votes cast for-petitioner---------------------------------- 2
4. -----
5 . --------------------------------- -----6. Votes cast against participating-labor organization (s)--------- 4
7. Valid votes counted (sum of 3, 4, 5, and 6 )-------------------- 6
8. Challenged ballots---------- ------------------------------- 6
9. Valid votes counted plus challenged ballots (sum of 7 and 8) ------ 12
10. ---------------------------- -- --11. -------------------------------- - -------
On October 18, 1962, the Union filed timely objections to election with the
Regional Director; a pertinent excerpt therefrom follows below:
I.
Prior to the election being held certain law enforcement officers of Gonzales
County had the Union meetings under surveillance and on at least one occasion
repeatedly drove by the place where the meeting was being held and then
parked in front of the building where employees were discussing the Union.
At such time, it was known by at least some of the employees that such official
or officials opposed the Union meetings and Union activities so that there was a
general fear of reprisal by the employees if they participated in or voted for
the Union.
H.
On one occasion a law enforcement official questioned one of the leaders
for the Union and in the process of such questioning made statements to the
effect that if there was a picket line placed around the employer's place of
business that certain people might be hurt. This further created a general
atmosphere of fear and reprisal on the part of those engaged in supporting the
Union and its movement to organize the employees.
M.
Certain law enforcement officials of Gonzales County, Texas, where the
Employer's place of business is located, did on one occasion follow the auto-
mobile of the Union representative as it left town following a meeting of the
employees discussing Union activities. The surveillance of Union meetings
by law officers and the subsequent following of a Union representative had
the effect of implying that the Union representatives faced arrest and should
not return to the County. This further created a general atmosphere of fear of
possible reprisal in the event of even legitimate Union activity.
IV.
The Union further objects to the activities on behalf of the officers, agents
and employees of the employer in interfering with and coercing its employees
in the exercise of their rights guaranteed by Section 7 of the National Labor
Relations Act. Such officers, agents and employees openly let it be known that
they opposed their employees participating in Union activities and wrongfully
sought to dissuade them from participating in Union activities and organization.
V.
The composite effect of the above and foregoing acts was to create a general
atmosphere of fear and reprisal so that a free and uninfluenced election, as
guaranteed by the Act, could not and was not held.
Thereafter , as pointed out above , the Regional Director on November 23, 1962,
issued his Supplemental Decision , Order Directing Hearing, Order Consolidating
Cases and Order Transferring Representation Case , which is the predicate for the
issue we are concerned with herein. Since we are now concerned , at this point,
in the objections to the election , the Trial Examiner feels that the following excerpt
therefrom should be inserted herein below:
Immediately following the counting and tallying of the ballots , a copy of the
tally of ballots was served upon the parties by the Board agent who conducted
AMERICAN POULTRY AND EGG COMPANY 671
the election. The tally of ballots shows that of approximately 9 eligible voters,
2 cast ballots for the Petitioner, and 4 cast ballots against the Petitioner.
There were no void ballots. There were 6 challenged ballots, which were
sufficient in number to affect the results of the election.
On October 18, 1962, the Petitioner filed timely objections to the election,
a copy of which is attached hereto.
Pursuant to the Board's Rules and Regulations, an investigation of the
Petitioners' Objections and the challenged ballots has been conducted.
The Challenged Ballots
Set out below are the names of the persons whose ballots were challenged,
the reason for the challenge, and by whom they were challenged.
-Name Reason for Challenge By whom Challenged
Manuel Arrellano------------- Discharged-8(a)(3)------------------- Employer (5).
Pedro Navejar ----------------- Not on list-------------------------- Employer (0).
Stanley Malatek-------------- Not a regular driver------------------- Petitioner (0).
Guadalupe Casares------------ Not on payroll ------------------------ Employer (5).
Frank Sestak------------------ Drives only one day-classified as Petitioner (0).
truck driver after hearing.
Ben Semmler------------------ Not a regular driver------------------- Petitioner (0).
The undersigned is of the opinion that the objections and the challenged
ballots and the evidence adduced during the investigation of such objections and
challenges raise substantial and material issues of fact, credibility and policy
which can best be resolved by a hearing. Accordingly, it is so recommended.
After long and careful consideration the Trial Examiner is convinced that he
should first dispose of the Union's objections to the election, not only because they
have perturbed him no end, but for the further reason that they raise a most dis-
turbing and delicate issue when considered in the light of the language used by the
Union in its formal protest, which has been set forth hereinabove, and the testimony
in the record it offered in support of its position in this regard. The Trial Examiner
has particular reference to the Union's contentions as to the activities of "certain law
enforcement officers Gonzales County . .
The Union's principal contention in this regard is found in the testimony of
Shafer and Loyd, its business representatives, concerning an incident that occurred
on the night of October 11, 1962. A summation of their testimony regarding
this incident follows below.
As indicated above the truckdrivers held a meeting at Arrellano's home on the
night of August 11, 1962. During the course of the hearing two of the drivers
who were present at the meeting, Arrellano and Caballero, were queried in this
regard. Arrellano testified that he saw a car which he identified as the sheriff's
car pass by his home on several occasions on the evening in question. On the
other hand Caballero, who was also present at the meeting, testified that he did
not see the car in question. Navejar who was also present at the meeting was
not queried in this regard by any of the parties.
Shafer and Loyd further testified, in substance, that they had seen the car, iden-
tified by Arrellano as the sheriff's, pass by the meeting place on several occasions.
They further testified that when they left Arrellano's home they saw the car come
out from a side street and that it followed them for seven or eight blocks to where
they turned off to go back home. Since the Trial Examiner feels that the testimony
of the union representatives regarding this incident is of importance he inserts
the following excerpt from Loyd's testimony, which, to him, is couched in clear
and understandable language
DIRECT EXAMINATION
Q. (By Mr. PENSHORN.) Mr. Loyd, you heard Mr. Shafer's testimony with
regard to the automobile that followed you out of Gonzales. Were you with
him on that particular night?
A. Yes, sir.
Q. And did you see a light-colored Ford automobile follow you from Mr.
Arrellano's house as you left town that night, sir?
A Yes, sir. I was driving.
672 DECISIONS OF N AIIONAL LABOR RELATIONS BOARD
Q. Did you also see the automobile passing in front of Arrellano 's house as
the meeting was being held?
A. Yes, sir, I kept track of how many times it went around, and each
time that he went, but I lost those notes and couldn't find them.
Q. But it was more than once, was it, sir?
A. It was six or seven times.
Q. And did you notice how many men were in that automobile?
A. Just two people in it.
Q. Two people in it.
Did you also see that car parked a short distance from Mr . Arrellano's home
as you left his house that night?
A. Yes, sir.
Mr. PENSHORN : That is all.
CROSS-EXAMINATION
Q. (By Mr. GoocH.) Now, how far was the car parked from Mr. Arrellano's
house?
A. He kind of lives on a horseshoe street . He lives over in the center of
it. Then when you come back around, there is really no street to the right,
but we took to the right because we was going to Rockport instead of back to
San Antonio, and it was bushes, a bunch of trees, and when we took off on
this trail, these lights on this Ford come on.
Q. In other words, the two men were sitting there in the car some distance
from Arrellano's house?
A. It's right around the comer from it.
Q. All right.
Now, did youall take off first or did the men take off first?
A. We took off first. Then when we passed in front of it, the lights come
on and the car took out after us.
Q. How close did he get to you?
A. Oh, I guess it was a hundred yards.
Q. A hundred yards?
A. Before he seen that we were going a different direction , I think , than what
he thought we were going.
Q Oh, I see.
Mr. GoocH: Well, that is all, thank you, sir.
Loyd further testified that the only indication they had that the car in question
was driven by a "law enforcement" officer was because the driver had a "western"
hat on. While it may be true that the "law men" down in that part of the country
wear "western" hats instead of uniforms , it is also true that a lot of other folks do
too as may be evidenced by simply walking down the streets, and "watch the folks
go by."
Another incident involving the sheriff of Gonzales County is found in the testi-
mony of Arrellano. Before we get into that the Trial Examiner desires to point
out that the incident that he is about to relate arose out of a fight that occurred at
the home of one Canuto Luna on the night of August 24, 1962, at which one Guada-
lupe Cesares was badly cut up. According to Arrellano he was at the party when
the fight occurred, but was neither a participant nor a witness to what transpired.
On the next day, August 25, 1962, be was called into Sheriff McGinty's office and
queried about the incident. According to Arrellano's testimony the sheriff had
already talked to others who were present at Luna's home when the fight occurred,
including one Henry Luna, and that the latter had told the sheriff that the fight was
"over the Union." 22 To the Trial Examiner , Arrellano's testimony in this regard
is important because it tends to explain his later testimony as to what the sheriff
said to him about the Union. Since the Union relies upon this incident as support
for one of its major contentions that the election herein should be set aside, the Trial
Examiner feels that the following excerpts from Arrellano's testimony should be
inserted below:
Q. (By Mr. PENSHORN.) All right. I want you to start at the very beginning
from the time that you first saw the Sheriff on August 25, 1962, and state where
you went and what was said
22 The Henry Luna referred to was a brother to Canuto Luna, at whose home the fight
occurred.
AMERICAN POULTRY AND EGG COMPANY 673
A. Well, I was in town and then I went home, and my wife told me, "The
Sheriff wants to speak to you."
And I came to the courthouse. I saw Sheriff Mudd, and he said "No, Mr.
McGinty wants to speak to you. He is at the courthouse."
So I came to the courthouse, right here at the second floor, and he took me
into an office, and he said he wanted my name, my date of birth, driver's license
number, and I gave him all of that information. I said could I leave, and he
said "No, I want to talk to you."
So be took me to another office, he locked the first door with a key, and
then he took me into another room, and he closed the other door.
Afterwards, he asked me what did I know about a fight, so I didn't say
anything.
He said "Was it over the Union?"
I said "No, it don't have nothing to do with the Union. It's a personal
affair."
So then after he said "I heard that you are going to have a picket line." So
I told him I didn't know anything.
He said "Well, you had best forget about it because I have three men with
sawed-off shotguns, and somebody is going to get hurt."
He kept on talking to me and said to forget about the Union, the Union was
no good for this town.
And then he said he was going to send Guadalupe Caseares to the State
Penitentiary, and he was going to blame it on the Union.
He also told me that Casares was on probation. I didn't know that.
Q. Was there anything else said at that particular time?
A. The only thing he said was that Luna had told him it was over the Union.
Q. (By Mr. PENSHORN.) Now, after that meeting did you tell any of the other
members or employees of the Company about this meeting with the Sheriff?
A. No. As soon as I left the office here I went home and I wrote a letter and
I mailed it to Mr. Shafer.
Q All right. Did you discuss this matter at all with any of the other
employees who had joined the Union?
A. Yes. I told them what had happened.
Q. You told the other employees about it?
A. Yes, sir.
Q. This was before the election was held, is that right?
A. Yes, sir, that was before the election.
Q. Did the Sheriff at any time tell you that you had a right to join a
union and could vote the way you wanted to?
A. Yes, he did, that same morning, he told me he hoped I would vote the
right way, and he also told me that he didn't want the Union in this town, that
he was running this town, and didn't want the Union to run this town.
Q. Do you know of your own knowledge, Mr. Arrellano, that Sheriff
McGinty owns any chicken farms in this county?
A. Yes, sir, he does.
Q. Are you sure of that?
A. Yes, sir. I used to haul live poultry and I hauled some out of his farm.
TRIAL EXAMINER: Even so, you don't contend that the Respondent was
responsible for this?
Mr. PENSHORN: No, sir. [Emphasis supplied.]
TRIAL EXAMINER: Just so it's clear.
At this point the Trial Examiner desires to point out that on several occasions
at the hearing herein counsel for the Union specifically stated to the record that the
Union did not "contend" that the Respondent herein was either responsible for or
was aware of the conduct of the law enforcement officers in the Gonzales area in
their relations with the employees we are concerned with herein.
The Union also offered the testimony of Pedro Navejar, Jr., in further support of
its contention that certain law enforcement officers in the Gonzales area engaged in
conduct that created an atmosphere of "fear and reprisal so that a free and unin-
fluenced election, . . . could not and was not held." Navejar's testimony concerned
certain statements made to him by the chief of police of the city of Gonzales under
the following circumstances.
According to Navejar he went to see the chief of police, Bill Buchanan , around
the middle of August 1962, and asked him to help fill out some papers for the Texas
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workmen's Compensation division. What transpired at the time is, in the con-
sidered opinion of the Trial Examiner, best told in the language of the witness.
Consequently the following excerpt therefrom is inserted herein below:
Now, when was it that you went to the Chief of Police to help you fill out
your papers?
A. That was in August.
Q. Do you know what day or week in August?
A. I think it was on a Friday, somewhere around-I figure the middle. I
don't know.
Q. Sir?
A. The middle of August, I will say. I am not sure.
Q. All right.
Did you say anything to him about the Union?
A. No, sir, he asked me.
Q. He asked you what, now?
A. He asked me if I were going to join the Union.
Q. What did you tell him?
A. I didn't know , I wasn 't sure.
Q. And then what was it he said?
A. The Union-this town was too small for a union, to vote against it.
Q. All right.
As the Trial Examiner sees it the foregoing constitutes the Union's case in support
of its objections to election regarding the conduct of certain law enforcement officers
in the Gonzales area. As indicated above, this contention of the Union has per-
turbed the Trial Examiner a great deal, primarily because it makes no contention
that the Respondent was either aware of it or had anything to do with it, and its
counsel so stated at the hearing herein. In the circumstances the Trial Examiner is
confronted with a most delicate situation. In his considered opinion neither Board
orders nor extensive comment as to the attitude of the citizens of the community
we are concerned with herein is the answer to this question. It will take more than
words to correct such a situation, in fact they might tend to add fuel to the flames
and increase the tension. In such circumstances he honestly believes that the least
said the better, and that the Union's objections I, II, and III, be dismissed in their
entirety.
In passing, the Trial Examiner desires to assure the parties that he has carefully
read the cases cited by counsel for the Union in support of his contention in this
regard, and is convinced that none of them are applicable to the facts we are con-
fronted with herein 23
We now come to the remaining objection of the Union, which concerns the con-
duct of representatives and agents of the Respondent. This particular objection,
when considered in the light of the dates that they occurred and the date of the
election, is most perturbing. All of the specific violations of Section 8(a)(1) of
the Act occurred during the month of August 1962. It was also during this same
period that Arrellano was discharged. Nevertheless, the Union did not file a charge
against the Respondent until September 18, 1962. In the charge, which is the pre-
dicate for the complaint herein, it did not mention any specific violations of Section
8(a) (I) of the Act.
Another perturbing factor to the Trial Examiner is the fact that there is no
evidence in this record that the Union filed a "waiver" as to the effect of its unfair
labor practice charge on the results of the election which was held on October 13, 1962.
The Trial Examiner has found above that the Respondent through its supervisors,
Slama, Guerra, Kuntschik, and Leando, engaged in conduct which was clearly
violative of Section 8(a) (1) of the Act. The question now before the Trial Ex-
aminer is whether such conduct was of such a serious nature that it interfered with
and coerced its employees in their rights guaranteed by Section 7 of the Act. Un-
questionably their statements, when considered in the light of the Respondent's ad-
mitted opposition to the Union and/or the concerted activities of its truckdrivers,
created an atmosphere of fear and reprisal which interfered with the employees'
freedom of choice in the selection of a bargaining representative. In all of the
circumstances, discussed, described, and found above, the Trial Examiner is con-
vinced and finds that said conduct was resorted to by the Respondent for the purpose
of coercing its employees to refrain from exercising their rights under the Act and
to frustrate the Union in its preelection efforts.
23 Cases cited by counsel for the Union, Great Atlantic & Pacific Tea Co, 120 NLRB
765 (1958) ; Monarch Rubber Go , Inc, 121 NLRB 81.
AMERICAN POULTRY AND EGG COMPANY 675
In the circumstances the Trial Examiner finds merit to paragraph IV of the Union's
objections to the election and will recommend below "that the election held on
October 13, 1962, be vacated and set aside."
As indicated above, the issues herein have caused the Trial Examiner grave con-
cern, particularly when considered in the light of the fact that the record herein
shows that of the nine employees who signed applications for membership in the
Union, only three or four were still in the employ of the Respondent at the time of
the hearing herein.24 Even so the Trial Examiner feels that this is a matter for
the Union to consider and to discuss with the Regional Director; consequently he
deems further comment in this regard inappropriate.
In arriving at his ultimate conclusion, the Trial Examiner was impressed by the
Board's Decision and Order in the Lloyd A. Fry Co., Inc., and Volney Felt Mills,
A Division Thereof, et al., Cases Nos. 11-CA-1978, 11-RC-1661, 142 NLRB
673. In that case the Board adopted in toto the Intermediate Report of Trial
Examiner Wellington A. Gillis. Since the issues in that case were in some respects
similar to those involved herein the Trial Examiner feels that the following excerpt
from the Trial Examiner's reasoning is applicable to the situation we are faced
with herein. Consequently it follows below:
As to (b), without regard to the equity of the proposition advanced by
such an argument, namely, the "two bites at the same apple" in the case of a
lost election, the fact remains that, under the Board's normal procedure, a
charging party in an unfair labor practice case (with certain exceptions not
herein involved), who desires to proceed with a concurrent representation
petition may do so by filing with the Board a written request to proceed, not
infrequently referred to as a waiver. In such cases, by executing a request to
proceed, it is agreed that the party waives the right to assert as a basis for
objections to any election which might thereafter be conducted, any conduct
alleged as unfair labor practices which may have occurred prior to the filing
of the petition. But for the fact that, in proceeding with the representation
case, the party is not required to "waive" any conduct common to both cases
which occurred after the filing date of the petition and before the filing date
of the unfair labor practice charges, I would agree that where, as here, a
union files a representation petition on June 5, and an unfair labor practice
charge on June 28, and thereafter, with knowledge of employer conduct hav-
ing occurred between the two dates, chooses to go to an election , which it
loses, there is much to be said in favor of refusing to set aside the election be-
cause of the employer conduct of which the union was aware when it chose
to go to the election. However, as the "waiver" does not, under Board proce-
dures, have the effect which the Employer's argument accords it, consistent
with my above findings, Employer's motion is hereby denied.
The Challenged Ballots 25
As indicated above there were six challenged ballots, three by the Union and
three by the Employer. Each in its turn will be disposed of below.
Manuel Arrellano's ballot was challenged by the Employer for the reason that
he had been discharged for cause on August 21, 1962, and consequently was not
an "employee" within the meaning of the Act at the time of the election. The
Trial Examiner has found above that Arrellano was discharged for reasons set forth
at great length in that section of this report concerned with this particular issue;
for this reason, he deems further comment in this regard unnecessary. In the
circumstances the Trial Examiner finds that the Employer's challenge should be
sustained.
Pedro Navejar was injured in the course of his employment with the Respondent
on or about July 5, 1962.26 The Employer challenged his ballot because he was
not on its list of eligible voters at the time of the election herein on October 13,
1962. As the Trial Examiner interprets the record the list referred to has reference
to the payroll of September 21, 1962.
24 See N.L R B. v. Eanet at al, 179 F. 2d 15 (C A.D C ), 74 NLRB 809.
2s As the Trial Examiner sees it, even though he has found above that the election on
October 13, 1962, should be set aside for reasons heretofore stated, he still must dispose
of the issue as to the challenged ballots. See Keeshln Poultry Company, 97 NLRB 467
at 472.
"At times the Trial Examiner will refer to the Employer herein as the Respondent
and at other times as the Employer.
727-083-64-vol. 144-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The case as to Navejar has perturbed the Trial Examiner no end. While it is
true there is a host of testimony in the record regarding his status at times material
herein, and that he was "pulling the feathers off the chickens" on the eviscerating
line at times material herein, nevertheless, the fact remains that he was taken off
his truck because of injuries sustained in and arising out of his employment as a
truckdriver for the Respondent. The Trial Examiner sees no difference between
his status at the time of the election herein and that of Semmler,27 Sestak, and
Malatek, who were challenged by the Union for somewhat similar reasons. Suffice
it to say at this time that as an employee who was injured in the course of his
employment, his status remains the same until a final determination in this regard
has been made by the Workmen's Compensation Division of Texas. There is little
if any evidence in the record as to this phase of the case as to Navejar, except
certain testimony by Navejar that the doctor told him he had sent the Company
a "release." When that occurred is none too clear in the record. In all the cir-
cumstances discussed and disposed of at great length above as to Navejar, the Trial
Examiner is convinced and finds that his true status at the time of the election was
that of a truckdriver.
The Employer's objection to Navejar's ballot presents an enigma for the reason
that it in essence advances the same argument as the Union does in its contention
that the ballots of Semmler and Sestak should not be counted. In other words the
Employer is saying that an employee injured in the course of his employment has
no right insofar as his job status is concerned, but that an employee who has been
taken off the job for disciplinary reasons retains his job status for at least 9 months
to a year, as in the case of Semmler, and has the right to vote in an election, but
an injured workman like Navejar has no such right, and that he automatically
by sustaining an injury in the course of and arising out of this employment loses his
job status. Quite frankly its reasoning in this regard is most baffling, and is the
facet of the case as to Navejar that has perturbed the Trial Examiner no end. In
all of the circumstances discussed and described above the Trial Examiner finds
that the Employer's challenge to Navejar's ballot be overruled and that it be counted
by the Regional Director.
Stanley Malatek's ballot was challenged by the Union on the ground that he was
not a regular truckdriver. In support of its position it offered the testimony of
Arrellano and Navejar. The gist of their testimony was to the effect that Malatek
worked 5 days of each week as a shipping clerk and 1 day as a truckdriver. Navejar,
however, when queried by counsel for the Union, changed his testimony somewhat
and said in effect that he drove a truck at least 1 day a week and "sometimes he
would go twice," but "never over twice" a week, during the period we are con-
cerned with in this phase of the case, during September and October 1962. On the
other hand the Respondent offered the testimony of Virgil Clowe, who has overall
supervision of the Respondent's plants, who testified from the permanent records
of the Respondent's Gonzales plant. His testimony was predicated upon a sum-
mation he had made from the permanent records. Though there was much discus-
sion between counsel for the parties at the hearing herein, as to Clowe's summary,
and his interpretation of the records, that is timecards, payrolls, and the like, the
Trial Examiner is convinced that it was honestly arrived at and that it fairly repre-
sented the time that Malatek was driving a truck for the Respondent at times ma-
terial herein 28 From all of the testimony in the record, oral and documentary, the
Trial Examiner is convinced and finds that at times material herein as to the truck-
drivers on payroll as of September 21, 1962, and as of the time of the election on
October 13, 1962, Stanley Malatek was driving a truck for the Respondent on an
average of 50 percent of his working time. In the circumstances the Trial Ex-
aminer is convinced and finds that he had an interest in common with those regularly
employed as truckdrivers and consequently was an employee within the appropriate
unit and entitled to vote in the Board election on October 13, 1962. Consequently
the Trial Examiner finds that the Unions' challenge to his vote was without merit
and that his vote should be opened and counted by the Regional Director
Guadalupe Cesares' ballot was challenged by the Employer, because he was dis-
charged for cause on or about August 24, 1962, and consequently was not eligible
to vote in the election on October 13, 1962. The uncontradicted and undenied testi-
n At times Semmler has been referred to herein as Semler This is due to the fact that
in the Regional Director's Decision and Direction of Election dated September 21, 1902,
he refers to Ben Semler, while in other documents offered and received in evidence at the
hearing he is referred to as Ben Semmler Even so they are one and the same person,
and the Trial Examiner sees no necessity of going back over this report and changing the
name from Semler to Semmler.
The same reasoning applies to Clowe's testimony as to Semmler and Sestak.
AMERICAN POULTRY AND EGG COMPANY 677
mony in the record herein shows that Cesares was discharged by the Employer be-
cause he was unable to meet the standards of the bonding company through whom
it bonds its truckdrivers, all of whom are required to be bonded, primarily because
they collect for the chickens they deliver on their routes.29 As the Trial Examiner
interprets the record Cesares' bond was canceled because he had been convicted of
a felony, "forgery and passing." However, he had been on a 2-year probation at
least until sometime in August 1962. What led up to the canceling of his bond and
other factors involving his probation is none too clear in the record. Suffice it to
say his bond had been canceled by the bonding company; the Employer had dis-
charged him on August 24, 1962; and he was not an employee of the Employer at
the time of the election on October 13, 1962. In the circumstances the Trial Ex-
aminer finds that the challenge of the Employer should be sustained, and that his
ballot be not opened or counted by the Regional Director.
Frank Sestak and Ben Semmler were challenged by the Union, on the grounds that
they were not regularly employed as truckdrivers at the time of the hearing in the
representation case, September 5, 1962. Even so the Regional Director found that
both of them "spent a substantial part of their time driving trucks ." and that
they had a "community of interest with the other drivers who the Petitioner seeks.
Accordingly I shall include them in the unit." 30 Though considerable testimony was
taken at the hearing herein as to the status of Semmler and Sestak, both oral and
documentary, the Trial Examiner is convinced and finds that it was not sufficient to
justify a reversal of the Regional Director's finding in the representation case. In
the circumstances the Trial Examiner finds that both Semmler and Sestak were
truckdrivers at the time of the election and that their ballots should be opened and
counted, and the Union's challenges thereto are hereby overruled.
In passing the Trial Examiner desires to point out that even though Semmler had
been involved in two serious accidents which led to his suspension by the Respondent
and/or Employer herein, nevertheless he was still considered "truckdriver." This
facet of the issues herein has been referred to above as one of the perturbing factors
the Trial Examiner was concerned with in the case as to Navejar. Though he has
commented at some length above as to the enigmatic position of the Employer as
to the status of Semmler on the one hand who was suspended and taken off his truck
because of his accident record and then on the other hand consider an employee
who was injured in the course of his employment in a different status, where the
"line is to be drawn," is beyond the comprehension of the Trial Examiner. Suffice
it to say that perhaps the age-old maxim, "It depends on whose ox is gored" is the
answer to this baffling question.31
From all of the foregoing, the Trial Examiner finds that the challenges of the
Employer to the ballots of Arrellano and Cesares should be sustained, and that its
challenge to the ballot of Pedro Navejar be denied, and that it be opened and
counted. He further finds that the challenges of the Petitioner, that is the Union
herein, to the ballots of Stanley Malatek, Frank Sestak, and Ben Semmler be denied,
and that they be opened and counted.
IV. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES AND
CONDUCT AFFECTING ELECTION
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it is recommended that it cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the policies of the Act. It having
been further found that the Employer has engaged in certain conduct affecting the
results of an election , it is recommended that the election conducted on October 17,
1962, be set aside and that a new election be conducted by the Regional Director
at an appropriate time.
:1 See the testimony of Arrellano and other truckdrivers relative to the custom of turn-
ing in the money they had collected on their trips after they ieturn to the plant
as See supra for Regional Director's findings.
31 From Bartlett's "Familiar Quotations," page 87(a). This is the moral of the fable of
the lawyer, the farmer, and the farmer's ox, which was included in Noah Webster's
American Spelling Book ( 1802 ), entitled "The Partial Judge"
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Fort Worth Poultry & Egg Co., d/b/a American Poultry and Egg Company,
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. General Drivers and Helpers Local Union No. 657, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, as above found, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act.
4. Other than as above found, the Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) and ( 1) of the Act, as alleged in
the complaint as amended prior to and at the hearing herein.
5. By engaging in threatening , coercive , and intimidating conduct, as found above,
during the period from July 30, 1962, to on or about September 1, 1962, the Em-
ployer unlawfully interfered with the freedom of choice of its employees in their
selection of a bargaining representative on October 13, 1962.
6. The aforementioned conduct constituting unfair labor practices and conduct
illegally affecting the results of a Board -conducted election is conduct affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that Fort Worth Poultry & Egg Co.,
d/b/a American Poultry and Egg Company , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union membership , activities,
or desires.
(b) Threatening employees that the plant would close if the Union came in, that
a lot of innocent people would lose their jobs if the Union came in, and threatening
employees that their job security depended upon keeping the Union out of the plant.
(c) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any and all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in conspicuous places at its place of business, including all places where
notices to employees customarily are posted, copies of the attached notice marked
"Appendix." Copies of said notice, to be furnished by the Regional Director for
the Twenty-third Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by it immediately upon receipt thereof, and maintained by it
for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered, defaced, or covered by any
other material.32
(b) Notify said Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report and Recommended Order, what steps the Respondent has
taken to comply herewith.33
It is further recommended that the complaint herein be dismissed insofar as
it alleges that the Respondent engaged in any other unfair labor practices, violative
of Section 8 (a) (3) and (1) of the Act, other than as above found.
92 If this Recommended Order should be adopted by the Board, the words "As ordered
by" shall be substituted for "As recommended by a Trial Examiner of" in the notice
In the further event that the Board's Order be enforced by a United States Court of
Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforc-
ing an Order of" shall be substituted for "As ordered by"
131n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
PETERSON BROTHERS, INC. 679
It is further recommended that Petitioner's objections Nos. I, II, and III to conduct
of certain law enforcement officers of the city and county of Gonzales, Texas, be
overruled.
It is further recommended that the election held on October 13, 1962, in Case
No. 23-RC-1949 be set aside, and that said case be remanded to the Regional
Director for the Twenty-third Region of the Board to conduct a new election at
such time as he deems that circumstances permit the employees' free choice of a
bargaining representative.
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL NOT interrogate any of our employees with respect to their views
concerning, or sympathies for, General Drivers and Helpers Local Union No.
657, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization.
WE WILL NOT threaten to discharge our employees, threaten to close down
the plant "if the Union" came in, or the job security of our employees in any
manner because of their union or concerted activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in
any union activities.
All our employees are free to become or remain members of General Drivers and
Helpers Local Union No. 657, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other union, and they are
also free to refrain from joining any union.
FORT WORTH POULTRY & EGG CO., D/B/A
AMERICAN POULTRY AND EGG COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
Peterson Brothers , Inc. and International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL-CIO, Local 433
Diversified Products Company and International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL-CIO, Local 433 and E. Harvey Jayne. Cases
Nos. 12-CA-2354, 12-CA-2355, and 12-CA-2424. September 19,
1963
DECISION AND ORDER
On February 5, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
144 NLRB No. 65.