Elsa Canning Co.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1696 (N.L.R.B. 1965)

1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations , to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection , or to refrain from any or all such
activities , except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act , as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All of our employees are free to become or remain , or to refrain from becoming
or remaining, members of United Mine Workers of America , or any other labor
organization.
EXETER COAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Carter Hicks if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No. 381-
2200 , if they have any questions concerning this notice or compliance with its
provisions.
Elsa Canning Company and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, and Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , General Drivers Local Union 657.
Cases No.s. 23-C,A-1768 anzd 23-CA-1851.1 September 27,1965
DECISION AND ORDER
On May 7, 1965, Trial Examiner John P. von Rohr issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent, the General Counsel, and the Charg-
ing Unions filed exceptions to the Descision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
1 Elsa Canning Company, Case No. 23-RC-2190, which had been consolidated with
the above cases for hearing, was closed by a Board Order at the request of the Joint
Petitioners after the issuance of the Trial Examiner 's Decision . It is therefore unnec-
essary to consider the Trial Examiner 's recommendation that the election held pursuant
to that proceeding be set aside and a second election be directed.
154 NLRB No. 139.
ELSA CANNING COMPANY 1697
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modification.
The complaint alleged that 15 women employed as peelers during
previous tomato canning seasons were denied reemployment by Re-
spondent in the 1964 reason for discriminatory reasons. The Trial
Examiner credited testimony as to 13 of these applicants, to the effect
that their sympathies for, or suspected affiliations with, the Unions
were discussed by supervisory personnel or were a factor in deciding
not to rehire them. We affirm his finding that these 13 women were
refused reemployment for discriminatory reasons.
There was no similar testimony, however, as to the two alleged dis-
criminatees, Concepcion Vasquez and Elvira Garza. The Trial Exam-
iner recommended dismissal of the complaint as to Vasquez because of
the absence of any direct evidence of discrimination against her, and
because she herself had testified in effect that she was not a competent
peeler. However, despite the same absence of any evidence of dis-
crimination against Garza, he found that the failure to reemploy her
was discriminatory because she was an experienced, competent em-
ployee and Respondent had offered no explanation for its failure to
rehire her.
Although Respondent did not attempt to justify its action as to
Garza on the ground that she was not competent or was unavailable
for work at the beginning of the season, as it attemped to do for other
alleged discriminatees, it did establish that it needed fewer peelers for
its 1964 season than in previous years because it was canning a new type
of tomato which could be peeled mechanically. Thus, what appears
in the record gives rise only to the inference that Respondent's failure
to reemploy Garza was due to its need for fewer peelers and not because
it was discriminatorily motivated. In these circumstances, since the
burden of proof was upon the General Counsel, we believe that the
General Counsel has not in fact met his burden of proving by a pre-
ponderance of the evidence of the evidence that Garza was discrimi-
nated against because of her union activity, and we shall dismiss the
complaint as to her as well as to Vasquez.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Elsa Canning Company, Elsa, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified :
1. Delete the name Elvira Garza from paragraph 2(a) of the Trial
Examiner 's Recommended Order.,
206-446-66-vol. 154--108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Add the following as paragraph 2(b), the present paragraph
2(b) and those subsequent thereto being consecutively relettered:
"(b) Notify Heriberto T. Alanis if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
3. Delete the name Elvira Garza from the list of employees referred
to in the fifth indented paragraph of Appendix B attached to the Trial
Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges, duly filed, the General Counsel for the National Labor Relations
Board, for the Regional Director of Region 23 (Houston, Texas), issued a first com-
plaint on May 8, 1964, and a second complaint on October 2, 1964, each against
Elsa Canning Company, herein called the Respondent or the Company, alleging, that
it had engaged in certain unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act The Respondent's answer denies the allegation of
unlawful conduct alleged in each of the respective complaints. On August 21, 19 64,
the Regional Director issued an order directing that a hearing be held before a
Trial Examiner on objections to an election in Case No 23-RC-2190, said objec-
tions having been filed by Joint Petitioners, these being the same as the Charging
Unions named in the caption hereof. The hearing thus directed was consolidated by
the Regional Director with the hearing of the'foregoing complaints.
Pursuant to notice, a hearing was held in Edinburg. Texas, on October 27 through
30, 1964, and January 12 through 20, 1965, before Trial Examiner John P. von Rohr.
All pai ties were represented by counsel and cross-examine witnesses, and to file
briefs. Briefs, subsequently were filed by the General Counsel, the Respondent, and
the Charging Party and they have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with plants located at three sites in the
State of Texas. The sole plant involved in this proceeding is located at Elsa, Texas,
where it is engaged in the business of processing and canning vegetables
During the last 12 months preceding the hearing, Respondent's gross revenue from
its business operations exceeded $500,000. During the same period, Respondent
sold and shipped commodities valued in excess of $50,000 from its plant at Elsa,
Texas, directly to customers located outside the State of Texas; and it purchased
commodities valued in excess of $50,000, which commodities were shipped directly
to its plant at Elsa, Texas, from points outside the State of Texas.
The Respondent concedes, and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, General Drivers Local Union 657, herein referred to as the Unions
or Joint Petitioners, are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
The Respondent, with plants located in Elsa, San Benito and Plainview, Texas, is
engaged in the processing and canning of seasonal vegetables of various kind. The
ELSA CANNING COMPANY 1699
petitioning unions undertook a joint organizational campaign of the Elsa plant
beginning in November 1963. Pursuant to a petition filed on December 17, 1963,
and a hearing conducted on January 8, 1964, the Regional Director of Region 23,
issued a Decision, Order and Direction of Election on January 31, 1964, finding as
appropriate a unit consisting of all production and maintenance employees, ware-
house employees and truckdrivers at the Elsa plant, with the usual exclusions. An
election, which was ordered to be conducted "at or near the seasonal peak of opera-
tions," was held on June 18, 1964. Of approximately 180 voters, 147 cast valid
ballots, of which 54 were cast for, and 93 against, the Joint Petitioners. Subsequent
to the filing of objections to the election filed by the Unions on June 18, 1964, the
Regional Director issued an order directing a hearing on the said objections: These
objections, which were heard in this proceeding, are in large part related to the alleged
unfair labor practices involved herein and will be considered in a subsequent section
hereof.
As to the unfair labor practices, the allegations in the complaint charge as fol-
lows: 1 (1) that on or about May 21, 1964, and on or about September 21, 1964, and
thereafter, Respondent discriminatorily failed and refused to hire 15 female employ-
ees in violation of Section 8(a)(1) and (3) of the Act; 2 that on February 28, 1964,
Respondent discriminatorily refused to hire Heriberto T. Alanis in violation of Sec-
tion 8(a)(1) and (3) of the Act; that on December 20, 1963, Respondent assigned
employee Juan Garcia "more arduous and less desirable work tasks" in violation of
Section 8(a)(1) and (3) of the Act, and that Respondent engaged in various acts and
conduct in independent violation of Section 8(a)(1) of the Act.
B. The alleged refusal to hire for the 1964 tomato season
It is alleged that Respondent violated Section 8(a)(1) and (3) of the Act by refusing
to hire the following employees for its 1964 tomato canning operations:
Herlinda T. Alaniz Maria Cuestas Maria Prieto
Guadalupe R. Alegria Elvira Garza Francisca V. Rendon
Juana B. Cipriano Rebecca Gonzalez Antonia C. Rodriquez
Gumecinda Cordova' Ofelia Marroquin Eligia C. Vargas
Maria M. Cortez Ambrosia G. Montalva Concepcion Vesquez
The relevant facts pertinent to the issues of alleged discrimination against these
employees are not as involved or as complex as the length of the record would seem
to indicate. Moreover, it may be noted that a substantial part of the entire evidence
is comprised of matters over which there is not material dispute or consists of testi-
mony which is undenied or uncontroverted. Accordingly, and unless there is a sub-
stantial dispute in the testimony, it will be unnecessary for me to always refer to the
testimony of individual witnesses in setting forth the facts herein.
Preliminarily, it is noted that the principal managerial and supervisory personnel
involved in this case include the following Carl A. Roettele, president and general
manager; Joe Gavito, vice president, lose Valdez, plant superintendent; and Jose
Ruiz, warehouse foreman.
All of the alleged female discrimmatees herein have held the classification of
tomato peelers. As the name indicates, this is a hand operation which involves the
removal of the tomato skin with a knife. The tomato season at the Elsa plant (which
has been in operation since 1946) generally begins in the latter part of May and con-
tinues through the middle part of June or sometimes to the first part of July. Hired
on a seasonal basis, the majority of the production employees, including the peelers,
reside in Elsa, Texas, and surrounding communities. A majority of these employees,
many of whom come from the same families, return to work for the tomato season
year after year.3
For the last 10 or 12 years the Respondent has utilized the services of the Texas
Employment Commission, hereinafter called the TEC, as the exclusive source of
1 For practical purposes, the allegations in the two complaints will be considered as
consolidated and they will be treated as one insofar as the discussion herein is concerned.
2 The complaint, as issued, initally named 18 alleged discriminatees. However, at the
conclusion of his case, the General Counsel amended the complaint by deleting therefrom
the names of Aurora Carreon, Delfina Mancies and Margarita Ruiz.
3 Roettele testified in the representation hearing that as high as 95 percent of the
.employees return year after year during the peak season.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor supply for its production employees. There is no need to detail the considerable
testimony as to the procedure thus involved. Suffice it to note that prior to the 1964
season the Respondent simply indicated to the TEC the number of employees it
needed and that the TEC would thereupon refer employees directly to the Respond-
ent after screening their qualifications. In many instances prior to 1964 the employ-
ees would report to work on the first day of the tomato season and a representative
of TEC would come to Respondent's plant and there register these employees after
they had started working .4 For the 1964 tomato season, however, there was a sig-
nificant departure from the established practice in that Respondent here for the first
time submitted to the TEC a list of employees whom it deemed qualified, which list
was to be utilized by the TEC as the source of its referrals .5 While the selection of
the employees named on this list 6 is particularly important to the issues herein, it
may be noted here that the Respondent, for wholly economic reasons, anticipated a
reduction in the number of tomato peelers it would require for the 1964 tomato
season.?
Respondent's Elsa plant commenced its 1964 tomato operations on May 21.
Having determined that this year a hiring list would be submitted to the TEC, Joe
Gavito, vice president and general manager, held two meetings with a group of super-
visory and nonsupervisory employees on about May 12 and 13. Attending these
meetings in addition to Gavito were the following: Jose Valdez, plant superintendent;
Oscar Cardoza, payroll clerk and cost accountant; Jose Ruiz, warehouse foreman;
and employees Eligio Madrigal, Juan Trevino Pena, Evita Madrigal and Carmen
Vega. Roettele, who was present briefly at the first meeting, announced that Gavito
would speak and then departed. Conceding that the meetings were called for the pur-
pose of preparing a list of Respondent-approved employees, it was Gavito's testimony
that the others present were called to help him ascertain "whether the [prospective]
employees were in the community or whether they were available to work or whether
they were working." It is undisputed that Oscar Cardoza read out the names of
former employees for the group's consideration. He did this by referring to cards of
individual employees, these cards reflecting the quantities of tomatoes peeled by each
employee who worked in 1963. Gavito testified that these "peeling records" were
utilized in order that a list could be made of the best tomato peelers. As indicated,
there is no question that a list of Respondent-approved employees was drafted during
the course of these meetings.
We turn now to the testimony of Eligia Madrigal, one of the employees who
attended these meetings. Madrigal is the senior employee at Respondent's plant,
having been employed practically since the plant's inception and having worked at
almost every job at the plant. He presently works as a boilerman, a job which he
has held for the last 7 years. I might state at the outset that Madrigal, an elderly
man, impressed me as a person of integrity. From my observation of this witness,
I have no hesitancy in crediting what I believe to be his honest and forthright testi-
mony. Moreover, the material aspects of Madrigal's testimony stand completely
undenied.
Madrigal testified that after Roettele introduced Gavito and left the room, Gavito
told those present that "he wanted us to assist to see which ones of those workers con-
spired with the Union, which ones did not, and which ones were suspected of con-
spiring with the Union." Madrigal then went on to relate the discussions which
ensued concerning various of the employees whose names were brought up by
Cardoza. He also testified that Gavito wrote down a list of names as the discussion
progressed. Gavito, it may be noted, conceded that the list of approved employees
which subsequently were submitted to the TEC were typed from written notations
which he made during the course of these meetings. Specifically, now, I set forth
Madrigal's testimony concerning the comment made during these meetings with
4 Many of the employees live within a block or two of Respondent's Plant in Elsa.
Whether the employees learned of the start of the tomato season by observation of pass-
ing tomato trucks, by word of mouth, or by the plant whistle, the record is clear that
most of these employees showed up at the plant on the first day of the tomato season.
Roettele characterized the employees on this list as "approved" employees.
As noted hereinafter , Respondent actually furnished the TEC with two such lists.
7 Briefly, this was in large part due to Respondent 's development of a lye process for
the removal of tomato skins. While not used exclusively in 1964, the extent of such
automation lessened the number of tomato peelers required for the 1964 season.
ELSA CANNING COMPANY 1701
respect to the following individuals named as alleged discriminatees herein.8 I include
opposite their names such of their testimony as is pertinent here.
Herlinda T. Alaniz: "Mr. Jose Ruiz said that her son, Beto Alaniz, had come up
and asked for a job, and he had been refused because he conversed very much with
the other workers about the union." Mrs. Alaniz testified that Heriberto Alaniz (the
same referred to as Beto) is her son.
Guadalupe Alegria: "It was mentioned that she was related to Juan Garcia and
Juan Garcia was a leader in the Union so she was refused work." Alegria testified
that Juan Garcia is her first cousin .9
Juana P. Cipriano: "Mr. Jose Valdez said that she worked at La Liana, and
La Liana already had the Union, and this is why she was refused work." (The evi-
dence reflects, and I find, that La Liana is a unionized plant located about 3/2 miles
from Elsa).
Gumecinda Cordova: "Her name was also mentioned, that she was working at this
same place, La Liana, and that the Union was already there . . ." Cordova testified
without contradiction that she had worked at the La Liana plant for 3 years, the last
such occasion having been in December, 1963.
Maria M. Cortez: "Because she was the wife of Maximino Cortez, and he was
another leader of the union ... Jose Ruiz said that." Cortez confirmed that she was
the wife of Maximino Cortez.
Maria Cuestas: "Jose Valdez said that she was also another one of the ones that
worked at La Liana." Although Cuestas did not testify, witness Antonia C. Rodriquez
credibly testified that Cuestas had worked with her at La Liana.
Rebecca Gonzales: "I and Juan Trevino talked in her favor, that she should be
hired, but Jose Valdez said that he had heard a conversation where she had said that
she conspired with the Union."
Maria Prieto: "Jose Valdez also said that she was of the ones that conspired for
the Union." Prieto testified that she signed a union card in March 1964, and that
she attended three union meetings.
Francisca V. Rendon: "Jose Valdez said that she was some kin to him, but that he
heard her talking for the union on one of the conveyor belts." Rendon credibly testi-
fied that she was Valdez' cousin: further, that she attended several union meetings
and signed a union card.
Antonia C. Rodriquez: "It was said that she also worked at La Liana and since she
worked at La Liana and the union was there she also conspired for the union and
Jose Valdez said it." Rodriquez confirmed that she had worked at times in La Liana
in each year from 1961-63.
Eligia C. Vargas: "I do remember that her name was mentioned and that it was
said that she conspired for the Union, but I do not recall who said it." Vargas testified
that she signed a union card and attended approximately three union meetings before
she applied for work during the 1964 tomato season.
With the exception of Maria Cuestas who did not testify, there is considerable testi-
mony from each of the above employees as to the various steps they took to obtain
employment with the Respondent as tomato peelers for Respondent's 1964 tomato
season. I do not deem it necessary to burden this report with a recitation of all this
testimony. The credible and unrefused testimony of these employees establishes
beyond any question that each of these employees made proper applications for the
jobs in question. Indeed, the fact of their applications is not disputed by the Respond-
ent. In this connection it may be noted that these employees not only attempted to
register at the TEC office in Elsa, but they also appeared a Respondent's plant where
8 While I am convinced, as Madrigal's testimony reflects, that the principal purpose
of these meetings was to weed out the suspected union adherents, I have no doubt that
in some instances the legitimate qualifications of various prospective employees were
also discussed. In this respect, Madrigal's testimony was in large part limited by the
nature of the questions put to him, these being directed principally to the discriminatory
aspect of these discussions. But at one point, for example, when asked if the name of
Eriberto Vargas was mentioned, Madrigal responded : "Jose Valdez said she was not one
of the ones that conspired with the Union, but she went to sleep on the job."
6 That Juan Garcia was known by the Respondent to be a leading union adherent is in
accord with the facts. As indicated hereinafter, Respondent was apprised of Garcia's
union activities in December 1963, this some 5 months prior to the meetings discussed
above
1702 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
they made personal application with those in charge of hiring. The TEC refused to
give these employees referral cards because they were not on the approved lists sub-
mitted by Respondent.1° When they applied at the plant the employees were told that
they would not be hired because they did not have a referral card from the TEC
and/or that their names were not on a list which was checked at the employment
window." Not being given any satisfactory explanation for their not being hired,
these employees returned to the TEC and to the plant on several or more occasions.
Each of these further efforts to obtain employment also was unsuccessful.12 As to
Marie Cuestas, mentioned above. I find from the credited and unrefuted testimony
of Antonia Rodriquez that Cuestas came to the plant and applied for work for the
1964 tomato season.13
In the face of the strong prima facie case of discrimination against the prospective
employees discussed above, particularly as reflected through the testimony of Eligio
Madrigal, we turn now to a consideration of the defense testimony put on by the
Respondent. As already indicated, Plant Manager Gavito testified that the hiring lists
submitted to the TEC were devised primarily with the intent of selecting employees
who were the best qualified tomato peelers. In this regard, Gavito testified, "We sat
around the table ... we used our 1963 payroll record on peelers.. . and we went name
by name to check to see how good peelers they were to qualify and also as to whether
they were average or above average in their number of buckets that they peeled per
hour, and used those various factors in picking out our women to put them on this
list." However, except for this generalized testimony the Respondent adduced no evi-
dence whatsoever to show that the employees whose names were put on the lists in
fact had better peeling records than the alleged discriminatees whose names were
omitted. To the contrary, the record discloses that the discriminatees included some
of Respondent's oldest and most experienced employees. Thus, Herlinda Alaniz
worked for Respondent every year since 1944; Guadalupe Alegria started in 1949
and has worked each season during the last 9 years; Juana Cipriano worked every
season since 1958; Gumecinda Cordova, all but 2 years since 1948; Maria Cortez,
since 1951; Rebecca Gonzales, since 1948; Maria Prieto, since 1947; Francisca
Rendon, since 1962; Antonia Rodriguez, from 1953-61; again in 1964; 14 and Eligia
10 There is an exception here in the case of Marie Prieto, for the evidence discloses
that her name was on the first list which Respondent submitted to the TEC. Accord-
ingly, TEC furnished her with a referral card upon her application. However, when
Prieto went to the plant on the first day of the tomato season, plant superintendent Jose
Valdez checked her name against a list and informed her that she could not be hired
because her name did not appear on the list. I can only conclude that Respondent mis-
takenly included Prieto's name on the list submitted to the TEC. On the basis of
Madrigal's testimony, as heretofore set forth, the inference is warranted, as I
find, that Prieto was excluded from Respondent's list for the reason, as Madrigal testi-
fied, that Valdez suspected her of "conspiring for the Union."
I also note the following as to Maria M. Cortez* When Cortez first applied to the TEC
office she was refused a referral card because her name was not on the list. However,
upon her insistence that she had worked in the tomato season every year since 1951, the
TEC officials finally decided to give her a referral slip notwithstanding the absence of
her name from the list. When Cortez presented the card at the plant she was refused
employment by Valdez when he checked and discovered that her name was not on the list
which was retained at the plant office.
n The credible and unrefuted evidence establishes that the employees lined up outside
the plant in front of the employment window when applying for the jobs in question. As
each employee appeared, Plant Superintendent Valdez and Oscar Cardoza, the timekeeper,
would check a list inside the window to ascertain whether her name appeared on the list.
12 Gavito testified that on several occasions he called the TEC and made requests for
a few additional employees. There is some testimony from TEC representative Barber
to the effect that in some of these instances he may have referred employees who were
not on the lists submitted by the Respondent. Assuming this was true, it must be
remembered that as a double precaution Respondent checked its own lists which it
retained at the plant before hiring any employees thus referred. The case of Maria
Prieto (footnote 10) is in point.
13 Rodriquez testified that she observed Cuestas among a group of women who were
assembled at the plant to apply for work.
14 Rodriquez worked at the La Liana plant from latter 1961 through 1903. She again
worked for the Respondent in 1964 during the carrot season which preceded the tomato
season.
ELSA CANNING COMPANY 1703
Vargas, since 1947.15 All of these employees had worked as tomato peelers. Inas-
much as they were hired for this job year after year, I am satisfied that they were
able and competent employees.16
Gavito further testified that an additional criteria utilized in the selection of
approved employees for the 1964 tomato season was "whether they were available for
work or whether they were working ... or whether they were in town or out of town."
This testimony requires no comment other than to note that the availability of the
above discriminatees was demonstrated by their very applications for employment.
Moreover, Respondent offered no evidence to show that at the time the lists were
prepared it had any basis for believing that this group of employees would not be
available.
There is, finally, some testimony by Respondent for purportedly rejecting individual
employees. Thus, Gavito testified that it was reported by Valdez that Rebecca Gon-
zalez was "always talking" and that in 1962 she had "pulled some women off the line"
because she resented the hiring of a new inspector. I can regard this testimony as
but an afterthought in view of the fact that Respondent must have regarded her as a
satisfactory employee else it would not have hired her regularly each year since 1948.
As to her "pulling women off the line" in 1962, for all the record discloses this well
may have been protected activity. In any event, this conduct did not bar her being
hired in 1963.
Gavito testified that Maria Cortez was not put on the list because she was currently
working in carrots at the beginning of the tomato season.17 However, the evidence
reflects that other female employees who worked during the current carrot operations
were hired directly into the tomato operations.18
I do not credit Gavito's further assertion that Antonia Rodriquez and Eliga Vargas
were not considered because they did not work in tomatoes during the 1963 season.
That their names in fact were brought up has already been noted by the uncontro-
verted testimony of Madrigal.
In short, and in view of all the foregoing, I reject Respondent's asserted reasons for
failing to hire the individuals whom we have thus far considered.16 Rather, on the
basis of Madrigal's credited and uncontroverted testimony, and upon the entire
record in this case, I find that Respondent's real motivtaion for refusing to hire, or
to consider for hire, the respective employees mentioned above was specifically for
the reasons as testified to by employee Madrigal. As Madrigal's testimony reveals,
Respondent omitted the names of these employees from the hiring lists and refused
to employ them either for the reason that they were related to a known union leader,
or that they talked in favor of or "conspired" for the Union, or that they were
suspected of being union advocates because they had been employed in a unionized
plant. Indeed, Madrigal's testimony, so directly damaging to the Respondent's cause,
is of the kind rarely obtainable in unfair labor practice cases of this nature.20 While
union animus has already been demonstrated through the testimony of Madrigal,
further manifestation of Respondent's hostility to the unionization of its employees
are noted in succeeding sections hereof. In addition, and of no little bearing on the
discrimination against these employees, is Respondent's hiring of 13 additional
employees as tomato peelers from outside the Elsa area on June 9, 1964, a matter
which is discussed hereinafter.
Is Vargas was "up north" and did not work during the 1962 and 1963 tomato seasons.
However, she did work in the earlier 1964 carrot season before being refused employment
for the 1964 tomato season.
18 Of the employees mentioned above, only Francisca Rendon had less than considerable
experience as a tomato peeler. However, this fact does not affect the ultimate conclusions
found herein.
I note also that in addition to working for the Respondent as peelers during the tomato
seasons, the above employees were also employed during other vegetable seasons, these
including beans, carrots, beets, sweet potatoes, and the like.
17 Due to an overlapping of vegetable seasons , the carrot canning extended into the
tomato operations by a few days.
is As reflected by the payroll lists, General Counsel Exhibits Nos. 2-B and 2-E.
16I have given full consideration to the testimony of Respondent witnesses Jose Valdez
and Jose Ruiz. However, it would serve no purpose to detail this testimony herein
since it is substantially the same as Gavito's. Neither of these witnesses controverted or
denied the credited testimony of General Counsel witnesses upon which the violations
herein found are principally predicated.
20 Hartsell Mina Company v. N.L.R.B., 111 F. 2d 291, 293 (C A. 4).
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude and find that Respondent discriminated in regard to the hire of Herlindsi
T. Alaniz, Guadalupe Alegria, Juana B. Cipriano. Gumecinda Cordova, Marie M.
Cortez, Maria Cuestas, Rebecca Gonzoles, Maria Prieto, Francisca V. Rendon,
Antonia C. Rodriquez, and Eligia C. Vargas, thereby discouraging membership in
the Union, in violation of Section 8(a) (3) and (1) of the Act 2'
We consider now the remaining alleged discriminatees whom Madrigal did not
recall as having been discussed during the preseason meetings which he attended.
Two of these are Ofelia Marroquin and Ambrosia Montalva. It is undisputed that
their names were not included on the rosters of approved employees which Respond-
ent submitted to the TEC,22 and that they were not hired for the 1964 tomato season.
Concerning these individuals, Juana Cipriano, one of the discriminatees discussed
above, testified that she went to the plant with Marroquin and Montalva on the morn-
ing of May 21, which was the first day of the 1964 tomato operations. Upon arriving
they were told by Plant Superintendent Valdez to return at 1 o'clock. Cipriano testi-
fied that they all returned at this hour but that on this occasion Valdez told Marroquin
and Montalva, "Ofelia and Ambrosia, I cannot give you all a lob because you all are
working at La Liana and La Liana is unionized." Not only did Cipriano impress me
as a credible witness, but her testimony as aforesaid stands completely undenied on
the record. Other than the heretofore discussed general testimony as to the alleged
hiring criteria, Respondent offered no defense for its failure to hire Marroquin and
Montalva. Accordingly, and upon the General Counsel's prima facie and unrebutted
case that these individuals were not hired for the reasons as testified to by Cipriano, I
find that Respondent discriminated against Marroquin and Montalva in violation of
Section 8 (a) (3) and (1) of the Act.23
I consider next the case of Elvira Garza. Garza unquestionably was one of the
most senior of the seasonal employees, having been employed with the Respondent
as a tomato peeler each year from 1952 to 1963, inclusive. During this period
she also worked for the Respondent every year during various other vegetable sea-
sons. Garza lives in Elsa just two blocks from the plant. On May 21 she applied
at the TEC 24 and on May 22 she went to the plant and spoke to Superintendent
Valdez. Garza testified that Valdez advised her that "there was not much work"
but that "probably later on [there] will be a chance to work." She returned again
the next day and this time asked Cardoza for work, pointing out that she was an
"old hand ... and old worker." Cardoza responded merely that she "wait until Mr.
Roettele comes."
It is undisputed that Garza's name was not included on the employee approved
lists which Respondent submitted to the TEC. Further, Respondent offered no
reason as to why Garza's name was not submitted nor did it offer any explanation
for its failure to hire this senior and experienced seasonal employee for the 1964
tomato season. As the General Counsel points out in his brief, Garza met all of
the criteria which, according to Gavito, were ostensibly required of employees to
qualify for employment. Thus, she was an experienced peeler, with 12 consecutive
years of tomato-season service; she had never worked for any other employer dur-
ing this period; she did not work during the 1964 carrot season ; and she was readily
available for employment. As TEC representative A. J. Barber testified, of approx-
imately 600 applicants in 1964, "very few" had as much longevity or experience as
one who worked as long as Elvira Garza.
" Phelps Dodge Corp. v N.L.RB., 313 U.S 177 It is immaterial that some of the
discriminatees did not engage in union activities prior to the tomato season or that Re-
spondent may not have had knowledge of all those who did. It is sufficient to show, as
here, that the discrimination was based on Respondent's belief or suspicion that the em-
ployees were engaged in union activities or that they might be prounion adherents or
sympathizers. N L R B. v. Clay M. Bishop and Robert E White, d/b/a New Hyden Coal
Co, 228 F. 2d 68, 70 (C.A. 6). This holds true even if such belief or suspicion is mis-
taken The Little Rock Downtowner, 145 NLRB 1286, the N L.R.B. v. J. G. Boswell Co ,
136 F. 2d 585, 589 (C.A. 9) For a case closely analogous to the instant situation (in
fact, the same general situs-Edinburg, Texas) see Akin Products Company, 99 NLRB 1270.
22 Respondent Exhibits Nos. 9 and 10.
23 It may be noted that Respondent's failure to hire Marroquin and Montalva for the
reason indicated falls in line with Madrigal's testimony that other employees were dis-
crininated against for the same reason ; i.e., that they had worked at La Liana, a unionized
plant
21 TEC officials told Garza to leave her name and address and that she would be sent a
card when there was work, but she never received one
ELSA CANNING COMPANY 1705
On the entire record in this case, and in the absence of any explanation by the
Respondent for its failure to hire Garza for the 1964 tomato season, the inference
is inescapable and I find, that Respondent discriminated against Garza, as it had
against the others, in violation of Section 8(a)(3) and (1) of the Act.
There remains for consideration the case of Concepcion Vasquez. Vasquez failed
to obtain a job as tomato peeler in 1964 either by referral from the TEC or by
direct application at the plant. The evidence reflects that Vasquez was employed
by the Respondent "for short periods during practically every canning season." 25
Vasquez conceded that in past seasons she usually quit her job after a short period
because she was not able to keep up with the peeling quota (a certain number of
buckets per hour) as required by the Respondent. In the absence of any direct
evidence of discrimination against Vasquez, and on the basis of her own testimony
that she was not a well-qualified tomato peeler , I shall recommend that Vasquez'
case be dismissed 26
The complaint further alleges that Respondent violated Section 8(a)(1) and (3)
of the Act by failing and refusing to hire the 15 individuals discussed above on or
about September 21, 1964, and thereafter.
It is undisputed that the Respondent commenced a second tomato canning opera-
tion beginning sometime in the latter part of September. While the record is not
clear as to exact dates, General Manager Garvito testified that "we had four sepa-
rate runs, two, three or four days apart each run. They weren't consecutive days." 27
The credible evidence establishes that of the individuals named in the complaint,
the following applied for tomato peeling jobs for the September operations: Guade-
lopa Alegria, Rebecca Gonzales, Francisca Rendon, and Eligia Vargas. None of
them were accepted for employment by the Respondent.
Concerning the hiring procedure utilized for the September-October tomato run,
both Gavito and Roettele acknowledged that it was the same as that which had been
used for the earlier 1964 tomato operations. In fact, with reference to the Sep-
tember hiring procedure, Gavito testified, "We notified the TEC to mail, send,
refer to our original list submitted, in the last [May-June] season, and refer women
for unemployment."
Inasmuch as there admittedly was no change in Respondent's hiring procedure for
its September operations, I can but conclude and find that Respondent thereby con-
tinued to engage in discriminatory hiring practices. Accordingly, I find that by fail-
ing and refusing to hire the above-named individuals who applied for the Septem-
ber operations, Respondent thereby further violated Section 8(a)(3) and (1) of the
Act.
C. The discrimination against Juan Garcia
The complaint alleges that on or about December 20, 1963, the Respondent
assigned Juan Garcia to more arduous and less desirable work tasks
Garcia has been steadily employed in Respondent's Elsa warehouse since 1955.
After serving 4 or 5 years on the general warehouse crew in the performance of
unskilled physical work, Garcia was given the job of towmotor (lift truck) driver.
In 1962 he was assigned to a job in the warehouse office by Jose Ruiz, the ware-
house foreman. His duties here consisted of assisting Gregorio Madrigal, the assist-
ant warehouse foreman, in the handling of certain warehouse cards and in the
keeping of related office records. Garcia testified that there was some variance in
the amount of time he spent on this job. He said that at times this work kept him
occupied for an entire day, at other times for 5 to 6 hours. When not engaged in
the card work he would operate a towmotor or assist in the loading of trucks.
Garcia kept this job of semi-office work until the time of the alleged discrimination
in the early part of December, 1963.
In November 1963, it was Garcia who contacted Franklin Garcia, the union rep-
resentative (no relative) with the request that he organize the plant. Thereafter
Juan Garcia was one of the principal union adherents in the organizing drive which
followed, his activities including the signing up of other employees on the plant
premises.
zs Vasquez ' affidavit , as authenticated and read to her by counsel for the Respondent.
The emphasis above is supplied.
'" See footnote 8, supra.
27 This is the first time that Respondent conducted a tomato operation at this time of
the year. It appears that this was an experimental type operation, the details of which
are immaterial, and that the tomatoes in this instance were brought in by trucks from
outside the Elsa area.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In about the first week of December 1963, Garcia took a day off to attend a
funeral.28 During his absence the local newspaper carried a story which for the
first time publicized the fact that Respondent's plant was being organized by the
Union. Upon reporting to work on the morning of his return Garcia was approached
by Foreman Ruiz who asked him if he had signed a union card. (Garcia testified
that Ruiz wore a "mad expression" on his face when he asked the question.) Gar-
cia answered that he was having union cards signed among the employees but that
this occurred during his lunch period and after work. Ruiz then asked how many
of the warehousemen had signed cards. Garcia replied that he "could not answer."
Ruiz then asked the same question with respect to the truckdrivers and Garcia gave
him the same answer.29 Later that morning Ben Martin, the fleet manager,30
entered the office where Garcia was working. Garcia testified without contradiction
that Martin picked up a newspaper from Ruiz' desk, looked at the article concern-
ing the union activity,31 then made the exclamation, "Sons-of-bitches, they have
cut their own throats."
When Garcia came to work on the following morning, Ruiz assigned him to the
job of stacking cases. At the end of the day Garcia went up to Ruiz and asked
why his job had been changed. According to the undenied and credited testimony
of Garcia, Ruiz answered with the statement "that he didn't want Mr. Roettele to
think that they, too, were mixed up in this union deal."
Garcia has not been returned to his warehouse office job since December 9, the
date of the above incident. Instead, he has been assigned to physical work as a part
of the warehouse crew, of which more will be said later. Further, since his transfer
Garcia suffered a substantial reduction in the number of hours worked per day-
and consequently a substantial loss in pay 32
The substance of Respondent's defense is that a change in warehouse procedures
rendered it no longer necessary to keep Garcia at his particular job in the ware-
house office. It is undisputed that, pursuant to the requirements of a bonding com-
pany, the Respondent was required to follow a procedure requiring the use of certain
warehouse cards. While the evidence does not reflect all the details of this pioce-
dure, one part of Garcia's job was to affix a warehouse card on each stack of canned
goods. The second part of his job involved the filling in of certain data on the
face of the warehouse card-this latter was described by Ruiz as "paper work." It
is undisputed that at about the time of Garcia's transfer on December 7, 1963,
Respondent entered into a new warehouse arrangement with a new bonding com-
pany.33 The uncontradicted and here credited testimony of Jose Ruiz reveals that
the new bonding company inaugurated certain changes in the warehouse card pro-
cedure which eliminated much of the work which this job formerly entailed. Thus,
Ruiz testified that under the new system it was necessary to post only one card per
lot, rather than one card per stack.34 But perhaps more significantly, there was
also a simplification in the paper work involved, viz, the form of the cards was
changed so that less data was required to be noted thereon.35
as This possibly may have been for more than a day, for Garcia testified that he was
absent for "about one day."
21 The above conversation is set forth in accordance with the credited and undenied
testimony of Garcia.
3° Martin's status was thus described by Roettele in the representative hearing ("R"
68, 86), the transcript of which was incorporated with and received into evidence in the
instant hearing. Garcia described Martin as "head supervisor of the Warehouse Depart-
ment and truckdrivers." There is no question but that Martin is a supervisory employee
31 Garcia said he observed that the newspaper on the desk was folded in such a way as
to display the article in question . Again, Garcia 's entire testimony concerning this in-
cident is uncontroverted
33 Garcia testified that he put in a 40-hour week in his office job. The hours of the
warehouse crew fluctuated to the extent that at times he averaged only 25 to 30 hours
per week. His rate of pay was the same for both jobs.
"While the details are lacking, it is apparent, as Roettele's testimony indicates, that
the bonding company retains some degree of control over Respondent's warehouse opera-
tions. The purpose of this arrangement is to pledge the canned goods in the warehouse
as security for loans to the Company.
34 Depending on the size of the lot, a lot could involve any number of stacks.
35 In this regard Ruiz testified: "Then on the paper work, we used to have to write
down or either write it with ink or type it . . . . Now, on this new deal everything is
already written on there. All you got to do is post down the number of cases that you
are deducting "
ELSA CANNING COMPANY 1707
Upon all the foregoing, I conclude and find that the changes inaugurated by the
new bonding company in fact created a reduction in the amount of clerical work
theretofore required in connection with the warehouse card procedure. That this
was true is further evidenced by the undisputed fact that no other employee has
ever replaced Garcia in the performance of his former duties in this regard. Thus,
subsequent to Garcia's transfer the entire warehouse-card operation has been per-
formed by Assistant Foreman Madrigal.36 In fact, it was Ruiz testimony that
the work required for this job had dwindled to the extent that Madrigal now spends
but 5 hours per week on it. Accordingly, I find that the elimination of Garcia's
duties pertaining to the warehouse card office work was not in itself a violation of
Section 8(a) (3) and (I) of the Act. However, from the facts set forth earlier with
respect to the immediate transfer of Garcia from these duties, I am convinced and
find that Ruiz' sudden discovery of Garcia's union activities prompted Ruiz to effec-
tuate the transfer earlier than normally would have occurred. This transfer, it will
be recalled, occurred on the next workday after Ruiz learned that Garcia was pass-
ing out union cards; and it was made without any prior notice to Garcia that such
action was contemplated 37 Indeed, Ruiz' reply to Garcia's query as to the reason
for his transfer, as heretofore related, was tantamount to an admission that the
transfer was discriminatorily provoked. Accordingly, I find that Respondent's pre-
cipitous and premature transfer of Garcia to other duties was in violation of Sec-
tion 8 (a) (3 ) and (1) of the Act.
Aside from the foregoing, the General Counsel contends that after his transfer
Garcia was, in effect, singled out and assigned to a greater amount of arduous work
than were the others of the warehouse crew. The evidence reflects that the job of
stacking is the most arduous of the various types of jobs which are handled by the
warehouse employees. The substance of Garcia's testimony was that since his trans-
fer he spent an average of 80 percent of his time stacking, this being more than was
assigned to any of the other members of the warehouse crew. The Respondent
introduced a summary of Garcia's daily work records to dispute Garcia's assertion
as aforesaid. While this data covers approximately only the first 3 months of
Garcia's assignment to the warehouse crew (December 9, 1963, to March 17, 1964),
these records reflect that during this period Garcia also engaged in such other work
as grading cases, labeling cans, loading and unloading, unscrambling and casing.
However, even Respondent's records disclose that Garcia spent more time on stack-
ing than any other job. Further, such jobs described as casing and stacking No. 10
cans and labeling No. 10 cans, which are included in Respondent's summary, also
involves the physical work of stacking. Raul Molina, a 6-year employee in the
warehouse, testified that he observed Garcia spend most of his time stacking and
that on occasions he voluntarily relieved him by rotating jobs with him.
While it is possible that Garcia may have overstated the percentage of time he
spent stacking, and without belaboring this matter further, upon all the testimony I
am convinced and find that Garcia was required to do more than his share of stack-
ing. In any event, it will be recalled that while Garcia still worked in the office he
was assigned to other warehouse duties when he completed his office work. As
stated earlier, it was Garcia's unrefuted testimony that on these occasions he would
be assigned to either the job of loading trailers or that of driving a towmotor.
According to Garcia's credited and undenied testimony, he was never assigned to
the job of driving a towmotor at any time since his transfer to the warehouse crew.38
This in itself establishes, as alleged in the complaint, that Garcia was assigned to
more arduous work subsequent to his transfer from his office duties ... for at least
36 As previously indicated, this always had been Madrigal's responsibility ; Garcia acted
merely as his assistant.
311 do not credit Ruiz' testimony, which was disputed by Garcia, that he gave Garcia
1 or 2 days advance notice that the latter would be relieved of his warehouse office card
duties. In this connection, Garcia conceded that at one point he was not certain whether
Garcia's job status would be affected at all by the new procedure. Thus, he testified,
"Well, at first we didn't decide. We thought that we might keep on using him but then
as the work turned out, it began to-at first we didn't know that we were going to be able
to cut down that much work on posting those cards. So actually we didn't know we
were going to cut him off until after we started working out that new set-up."
ss This is also in accordance with the summary of Garcia's work records which Re-
spondent introduced in evidence.
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this share of less arduous work was taken away from his regardless of the discon-
tinuance of his other duties.39 Accordingly, I find that by this conduct Respondent
violated Section 8 (a)( I) and ( 3) of the Act.40
D. The alleged discriminatory refusal to hire Heriberto T. Alanis
Heriberto Alanis worked for the Respondent as a warehouse employee from 1955
through 1959. Due to lack of work, Alanis left the Respondent's employ and the
Elsa area in 1960 and found employment elsewhere. He returned to Elsa in the
middle of 1963. In January, 1964, Alanis came to the plant and asked Jose Ruiz,
the warehouse foreman, for a job in the warehouse.4 Ruiz advised him that work
was slow but to check again later. Alanis returned again several weeks later, but
Ruiz again indicated that there was no job available for him. On the following
morning Alanis again appeared at the plant. Alanis testified that when he was not
"called to work" on this occasion 42 he spoke up and asked Ruiz "why don't you
give me work? Is it on account of the union or of the union?" Ruiz responded,
Alanis testified, by saying "I am sorry. I can't give you work, you might instigate
the people of the union." Ruiz gave a different version as to his reply. Acknowl-
edging that Alanis asked him if he was not being hired "on account of the union,"
Ruiz said that he told Alanis "the union doesn't have anything to do with it. I just
don't have any work for you, I don't care whether you are for the union or not
for the union, I just don't have the work for you." Alanis impressed me as an
honest witness and I do not believe that his testimony concerning this conversation
with Ruiz was fabricated. I credit his version as aforesaid. Moreover, in crediting
Alanis, not only have I considered that Ruiz engaged in other conduct found to be
unlawful herein, but there is further uncontroverted evidence to buttress the fact
that the reason given to Alanis by Ruiz for not hiring him was the correct one.
Thus, I again allude to the testimony of Eligio Madrigal concerning Respondent's
reason for rejecting Alanis' mother from the list of eligible applicants, where, it
will be recalled, Madrigal testified: "Jose Ruiz said that her son, Beta Alanis, had
come up and asked for a job, and he had been refused because he conversed very
much with the other workers about the union." This testimony is completely unde-
nied by Ruiz and is not refuted by any other person who attended the meeting
during which the statement was made. On the basis thereof, including Alanis' own
credited testimony, I find and conclude that Respondent failed and refused to hire
Alanis for reasons proscribed by Section 8(a)(3) and (1) of the Act. Indeed, it
would be difficult to reach any other conclusion. I am aware, as Alanis conceded,
that he had not engaged in any union activity prior to applying for a job. As stated
previously, however, it is immaterial whether the discrimination was for known or
suspected union activities or sympathies. Manifestly, the Respondent followed the
same course of conduct in Ruiz' case as it did several months later when it refused
to employ various female applicants for the same reason.
There remains a question as to job availability, since the evidence does not clearly
establish that a warehouse job was available at the time Alanis applied. In other
words, although discrimination against Alanis has been established there remains
some doubt as to when he normally would have been hired absent a discriminatory
intent not to hire him. The General Counsel points to evidence that one Pedro
Lopez, a recent employee of the Respondent, was rehired about the time of Alanis'
latest application. But the evidence here is not conclusive as to when Lopez was
hired, the only testimony being that of Jose Ruiz who said that he put Lopez to
work either "a day or so before or after" his last conversation with Alanis. Under
the circumstances involved, I am persuaded that Respondent would have hired
Lopez before Alanis even absent any intent to discriminate against the latter. Thus,
39 It hardly need be said that driving a towmotor is less arduous than stacking cases
of canned goods which weigh from 28 to 45 pounds per case
111 have found that Garcia 's transfer was accelerated because of his union activities.
I am convinced and find that the conduct in question was motivated by the same
consideration.
91 Alanis had worked under Ruiz in the warehouse during his last employment with the
Company. Alanis testified that he was on friendly terms with Ruiz at the time he left
the Company in 1959.
42 Although most of the warehouse employees are permanent employees, it appears that
their actual starting time is not always regular. Thus, while they are required to report
outside the warehouse at a certain hour every morning, they do not actually begin until
they are "called to work" by the foreman.
ELSA CANNING COMPANY 1709
except for a brief period in December 1964, Lopez had worked continuously for
the Respondent at either its Elsa or Plainview plant since December , 1963. In
December, 1964, Lopez spoke to Ruiz and told him that he was going to Mexico
for 2 or 3 weeks. Ruiz at this time promised him a job when he returned. As
indicated above, Ruiz kept this promise shortly after Lopez returned 43
Respondent 's records show, however, that new employees were hired in the-ware-
house at various times subsequent to the last time Alanis applied for work 44 Accord-
ingly, I shall leave the reinstatement date to be determined at the compliance stage
of this proceeding.45
E. Interference, restraint, and coercion
In accordance with the findings heretofore made, it is found that the Respondent
violated Section 8(a) (1) of the Act by the following:
1. Foreman Jose Ruiz' questioning of employee Juan Garcia about his union
activities in about the first week of December, 1963.
2. Ruiz' statement to Heriberto T. Alanis that he could not give him work because
he might "instigate" people for the Union.
3. Gavito's conduct at the May 12 or 13, 1964, meetings, in the presence of rank-
arid-file employees, in excluding suspected pro-union employees from the lists of
employees to be submitted to the TEC as eligible for employment with the Respondent.
4. Valdez' statement to Juana Cipriano, Ofelia Marroquin and Ambrosia Montalvo
on May 21, 1964, that Marroquin and Montalvo would not be given a job because
they had worked at a unionized plant (La Liana).
In addition, the evidence reflects other incidents wherein Respondent infringed
upon the rights guaranteed employees in Section 7 of the Act. Thus, employee
Maximo Cortez credibly testified that on December 1, 1963, foreman Ruiz approached
him, pointed out employee Heriberto Salinas, and stated, "Watch that man, don't let
him take you into the Union because be is one of them." Cortez further testified
concerning a conversation he had with Ruiz about a month after the Petition was
filed which began with his approaching Ruiz about a matter relating to wages. Cortez
said that during this conversation Ruiz asked him if he was "in the union." When
Cortez replied in the negative, Ruiz stated, according to Cortez, "You don't have to
join the union in order for you to get your vacation." 46 I find Ruiz' interrogation
of Cortez in both these instances to be violative of Section 8(a)(1) of the Act
Finally, employee Jose A. Alanis credibly testified that shortly after the inception
of the organizing drive in September, 1963, foreman Ruiz approached him and asked
if he belonged to the Union. Alanis replied that he did not. In the context of
Respondent's other unfair labor practices as herein found, I conclude that Ruiz'
interrogation of Alams was likewise violative of the Act.
F. Findings and recommendations concerning objections to the conduct
affecting results of the June 18, 1964, election
1. Objections Nos. 1 and 2 47
Objection No. 1 charges the Respondent with a discriminatory refusal to hire the
female applicants whose cases have been considered earlier in this Decision. In
accordance with the findings previously made, I find there is merit to this objection.
Objection No. 2 alleges that Respondent interfered with the election, `By listing and
voting employees who were not eligible to vote in the aforementioned election, more
particularly, in hiring employees not previously employed at the Elsa plant, to the
exclusion of employees named in objection No. 1, including the following named
43 I credit this testimony of Ruiz.
4' General Counsel's Exhibits Nos 2-A through 2-J.
45 In view of the reason given Alanis for not being hired, it is reasonable to infer
that Alanis would regard as futile any further attempt to seek employment with the Re-
spondent. Accordingly, even absent any fob vacancy at the time of his last application,
I find that it was not necessary for him to apply again to qualify for the Board's cus-
tomary remedy. 'Southern Cotton Oil Crude Mill, Division of Hunt Foods and Industries,
Inc, 144 NLRB 959, 960 Shawnee Industries , Inc., Subsidiary of Thiokol Chemical
Corporation, 140 NLRB 1451.
to Ruiz testified that he did not recall any such conversation with Cortez Beyond
this, Ruiz testified that when other employees asked him about the Union he replied that
it was up to them, that it was their decision to make. As indicated, I credit the specific
testimony of Cortez as set forth above.
17 At the hearing the Petitioner was granted leave to withdraw objection No 3
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees." While reference is thereafter made to 67 named female employees, for
all practical purposes the litigation of this issue involved Respondent's transfer of
17 former female employees of its San Bemto plant to the Elsa plant during the 1964
tomato season. It was stipulated that these 17 employees were hired at Elsa on
June 3, 1964. The location of the San Benito plant, which is near Harlingen, Texas,
is approximately 30 miles from the Elsa plant.
Preliminarily, and as bearing upon the objection under consideration, the following
sequence of events involved in the representation proceeding should be noted: As
previously indicated, the petition was filed on December 17, 1963, and a hearing
thereon held on January 8, 1964. Initially, the joint petitioners sought to represent
a unit of production and maintenance employees of both the Elsa and San Benito
plants. However, in the Regional Director's Decision, Order, and Direction of Elec-
tion 4s the Regional Director found separate plants to constitute appropriate units
and he dismissed the amended petition as it pertained to the San Benito plant on the
ground that the petitioners did not have a sufficient showing of interest among the
San Benito employees. The aforesaid decision also directed that an election be held
among the unit of Elsa employees "at or near the Employer's seasonal peak of opera-
tions." It was stipulated that on June 9, 1964, the parties received a telegram from
the Regional Director advising that the election would be conducted (as it was) on
June 18, 1964.49
Respondent's asserted reasons for the transfer of the former San Benito employees
to the Elsa plant were testified to by General Manager Gavito. Gavito first pointed
to the fact that the San Benito plant had canned sauerkraut in early 1964. He went
on to relate that although earlier in the year plans had been made to process tomatoes
at this plant, the San Benito plant in fact did not engage in this operation in 1964
as had been contemplated, this due to a shortage of tomatoes.50 However, Gavito
testified, at the time of the transfer of the San Benito employees the Company still
held hopes that a sufficient quantity of tomatoes would become available so as to
warrant the opening of the San Benito plant Accordingly, said Gavito, the 17
former employees from San Benito were transferred to the Elsa plant in order that
the Company could be certain to have the nucleus of an experienced crew available
in the event San Benito did open.
Without attempting to substitute my judgment for that of the Respondent as to the
conducting of its operations, the facts in this case are such that I simply cannot credit
or accept Gavito's explanation for Respondent 's action as aforesaid. In the first
place, and as heretofore explicated and found, the credible and undenied evidence
establishes that Respondent refused to hire former Elsa employees who resided in
the Elsa area for the reason that they were suspect union adherents. The hiring of
the San Benito employees some 30 miles distant from the Elsa plant but serves to
emphasize the continuing discriminatory rejection of these former experienced Elsa
employees. Further, this discrimination in itself casts considerable doubt on Gavito's
testimony as to the reasons for Respondent's hiring the San Benito employees.
Indeed, it is of no little significance, as Roetelle conceded, that in past years there
had been no transfer of production employees between the San Benito and Elsa
plants.
Secondly, the assertion that the San Benito employees were hired at Elsa because
Respondent wishes to retain a nucleus of experienced employees in the event that
San Benito went into production in my opinion is not a reasonable or logical explana-
tion under all the circumstances of record. If Respondent was so concerned about
retaining experienced personnel, certainly it would not have refused to hire the dis-
cnminatees in the Elsa area, most of whom were among Respondent's oldest and
most experienced employees. Moreover, the evidence reflects that there is an over
abundance of labor supply in the Elsa, Texas, area. As mentioned earlier, TEC
representative, A. J. Barber, Jr., testified that the Elsa TEC office had applications
from some 600 to 700 qualified tomato peelers on file, of whom approximately 500
Se Although not introduced in evidence , I have taken official notice of this Decision, a
copy of which is maintained in the Board 's Washington files.
40 On June 9, notices of election were mailed from the Regional Office advising the
parties that the voting eligibilty period was the "payroll period ending immediately
preceding June 9, 1964 "
w There is no dispute that the San Benito did not process tomatoes in 1964 for the
reason thus given by Gavito.
ELSA CANNING COMPANY 1711
applied for work at Respondent's Elsa plant during the 1964 season .51 I have little
doubt but that much the same situation 52 existed in the Harlingen , Texas, area, only
some 30 miles distant. In any, event, had the San Benito plant opened for operations
it would have been just as feasible for Respondent to have followed the reverse pro-
cedure and hired employees from the Elsa area in the unlikely event that peelers
were not available at San Benito.
Finally, there is no accounting for the timing and sporadic nature of employment
of the San Benito employees. As the General Counsel points out in his brief, all of
these commenced their employment at Elsa during the same period (June 3
through 9), the final period for voting eligibility. None of them worked during the
following period (June 10 through 16), the period immediately preceding the elec-
tion date . . . but all worked during the next period (June 17 through 23) which
included June 18, the election date. After this, their employment became sporadic.
This sequence of events is illustrated in attached Appendix A.53 While not
relying on this alone, certainly the foregoing casts further doubt on the validity of
Respondent's reasons for the hiring of these employees, particularly during the cru-
cial election period.
In contending that the transfer of the San Benito employees was for "purely busi-
ness reasons," Respondent argues that "the Company had no idea when the election
would be held." I cannot give much weight to this argument in view of the fact
that the entire tomato season lasted only from May 21 to July 14. The Regional
Director having directed that the election be held "at or near the Employer 's seasonal
peak of operations," it would be reasonable for Respondent, when it hired these
employees on June 3, to anticipate that the election and the announcement thereof
would be forthcoming in the very near future. In fact, Roettele testified in the repre-
sentation hearing that in past years (1960-63, inclusive) peak employment occurred
in June.
In sum, and in view of all the foregoing, I find that the evidence amply sustains
Petitioner's objection No. 2 insofar as it pertains to the hiring of the 17 former
San Benito employees at Respondent's Elsa plant during the critical election period.
2. Objection No. 4
This objection charges Respondent with "holding captive audience meetings with
employees at a date and time so designated that the Union neither had time to answer
or counter new and erroneous information presented by the employer."
It is undisputed that in the early afternoon of June 17, 1964, the Respondent
assembled its employees to hear speeches by Roettele and Gavito. The short talk
of Roettele, who spoke first, is not under attack. The above objection relates to a
speech by Gavito who followed Roettele, the pertinent part of which, as designated by
the Union in its brief, is as follows:
I have here also copy of the Saturday Evening Post of the 4th day of January,
1964, where it relates another case where this union and its President, Jimmy
Hoffa, tried to take control of the business that Mr. Tom Coffey had in Sidney,
Nebraska, and how this Union of the Teamsters finally forced him to close his
business and all of his employees lost their jobs.
I do not believe I need to say anything about Mr. Carcia's union, The Meat
Workers and Butchers. I believe you know what they have done here in Elsa.
You have seen what they have done here across the street when they have about
80 of our friends to put themselves on strike and these poor people have lost
"Plant Superintendent Valdez testified that each day during the 1964 tomato season
more women applied at the plant than were needed . He also testified that approximately
40 women were employed during the peak of the tomato operations. Gavito testified
that, irrespective of the number of days worked , a total of 110 women were employed
during the entire 1964 Elsa tomato season.
52 Most of these applicants are Americans of Mexican extraction.
ss As in accord with the facts and as adopted from the General Counsel's brief. The
13 employees listed therein were identified by counsel for the Respondent . Apparently
through oversight, the other four were not furnished.
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their jobs and they will never be hired again . If they did this in Texas Plastics
they can do the same thing with the people what work here in this plant and they
will do it if you do not reject these unions voting tomorrow against them.
* * * * * * *
Look at our friends at Texas Plastics . . . those that are not members of the
Union are the ones that are working . I am sure that some of you have signed
cards authorizing to represent you. Those cards were nothing more than to
ask for an election and even though you have signed a card * * *.
* * * * * * *
In the last 10 to 15 years they have closed or many canneries have presented
themselves as broke . In the year 1945 there were about 43 canneries here in
the valley .... Do you know how many there are left today? ... there are only
10 companies left and of the ten that are left there are some that are in bad
financial condition.
The election at Respondent's plant was held between the hours of 4:30 and
7:30 p.m. on June 18 . Since the speeches on June 17 were not made within 24 hours
before the scheduled time of the election , the Respondent was within its rights in
assembling its employees for campaign propaganda purposes unless the speeches were
otherwise coercive or violative of Section 8(a) (1) of the Act.54
The Union alleges that Gavito misrepresented the facts when he stated that 80
striking employees of the Texas Plastic Company had been permanently replaced 55
Aside from a possible legal question concerning the alleged permanency of the
replacements, the record in this case is insufficient to provide a basis for determining
the factual validity of Gavito's statement. 56 Be that as it may, I find and conclude
that Gavito's statement as aforesaid constituted typical electioneering propa-
ganda and was not sufficiently misleading as to have interfered with the freedom of
choice of the employees in casting their ballots in the election. This is particularly
true where, as here, the facts of the Texas Plastic situation were peculiarly within
the knowledge of the Union ... for this was the same union that was involved in the
strike at that plant. In fact, the evidence establishes that the Union had scheduled
a meeting to be held on the eve of June 18, this following Gavito's speech. There is
no evidence to indicate that this meeting was not held and that the Union thus did
not have an opportunity to respond to the Company's electioneering propaganda. As
to the other portions of Gavito's speech, I likewise find nothing contained therein
which exceeds the bounds of permissible campaigning . Accordingly, I shall recom-
mend that Petitioners' objection No. 4 be overruled.
3. Unnumbered objection
The last objection, which is not numbered, alleges that the Respondent interfered
with a free choice in the election "by using supervisor(s) as election observer." The
alleged supervisors were identified at the hearing as Oscar Cardoza and Juan Tre-
vina Pena, Jr.
As to the former, it is undisputed that he holds the position of cost accountant
and payroll clerk. An hourly paid employee, there is no evidence to show that he
possesses any of the supervisory authority as defined in Section 2(11) of the Act. To
the contrary, the credited testimony of Respondent witnesses establish that he does
not. The fact that he attended the heretofore discussed pretomato season meetings
(as did other acknowledged employees) or that he performed the routine work of
assisting Plant Superintendent Valdez check the employment list at the employment
window cannot serve to establish him as being a supervisor within the meaning of
the Act. I so find.5
As to Juan Trevino Pena, Jr., who also is paid by the hour, Roettele and Gavito
testified that he is a maintenance man and "an all-around handy man" who does not
have authority to hire, discharge, or to recommend any such action. However, in
54 Peerless Plywood Company, 107 NLRB 427.
55 The Texas Plastic Company is located in Elsa near the Respondent's plant. There
is no question but that Respondent's employees were aware of the strike which was in
progress at the time.
sa The Respondent asserts that Gavito's statements were predicated upon an article ap-
pearing in the June 14 issue of a newspaper from the nearby town of McAllen, Texas.
This article states, inter alia, "Some 80 employees struck Texas Plastics. The company
says 70 others have taken their places, but the union says only 47 workers have taken the
strikers' jobs, according to count."
57 The Zeller Corporation, 115 NLRB 762.
ELSA CANNING COMPANY 1713
the representation hearing Roettele testified that Juan T. Pena "serves as a supervisor
when needed," this in the maintenance and production departments.58 Maria Cortez
testified that when she had worked in past seasons, Pena assigned the tomato peelers
from one work station to another.
Having sustained Petitioners' objections Nos. 1 and 2 I shall recommend that
the election be set aside and that a new one be held at a time to be determined by
the Regional Director.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III. above, occurring in connec-
tion 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 the free flow
thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of Herlinda T. Alaniz, Guadalupe R. Alegria, Juana B. Cipri-
ano, Gumecinda Cordova, Maria M. Cortez, Maria Cuestas, Rebecca Gonzales,
Maria Prieto, Francisca V. Rendon, Antonia C. Rodriguez, Eligia C. Vargas, Ofelia
Marroquin, Ambrosia G. Montalvo, and Elvira Garza. In view of the nature of
Respondent's seasonal operations, I shall recommend that Respondent place the
names of the 14 women here involved on a preferential hiring list and offer them
employment in their former or substantially equivalent positions, without regard to
their seniority or other rights and privileges previously enjoyed, at the start of its
next seasonal plant operation following issuance of this Trial Examiner's decision.59
I shall further recommend that the Respondent make them whole for any loss of pay
they may have suffered because of the discrimination against them by payment to
them of such sums of money as they normally would have earned as wages absent
the discrimination. The backpay is to be computed in the manner described in
F. W. Woolworth Company, 90 NLRB 289, and with interest at the rate of 6 percent
per annum to be added to the backpay due, as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716, less their net earnings during the period of their discrimination.
With respect to Heriberto T. Alanis, I have found an intent to discriminate against
him from the time of his application in about the middle of January 1964, but the
record does not disclose at what point, but for the discrimination, Alanis would have
been hired. In accordance with the findings heretofore made in my discussion of
Alanis' case, I shall recommend an order directing that he be offered employment and
that he be made whole, in accordance with the Woolworth and Isis formulas, supra,
for wages lost because of the discrimination against him, leaving to compliance
negotiations the determination of the precise date on which the discrimination against
him was a factor in his nonhire.60
As to Juan Garcia, I shall recommend that Respondent cease and desist from as-
signing him to more arduous and less desirable work on the warehouse crew than is
assigned to any of the other members thereof. In this regard, I shall also recommend
that Respondent assign him to his share of work on the towmotor in the same manner
as it did prior to his transfer from the warehouse office. While I have found that
Garcia's transfer from his warehouse office job was discriminatorily accelerated, I
have also found that this job would have been abandoned because of economic rea-
sons within a short period after such transfer. However, I shall recommend that
Respondent place Garcia on a preferential hiring list for the filling of any similar
or substantially equivalent position which may open in the warehouse office in the
future.61
sa General Counsel's Exhibit No. 4, p 63.
69 In view of Respondent's semi-continuous plant operations, this shall include the sea-
sonal operations of any vegetable crop and is not limited to the tomato crop Should
there be any question as to the qualifications of any of the women for other than the
tomato operations, this shall be determined at the compliance stage of this proceeding.
Akin Products Company, 99 NLRB 1270.
66 Cf. Tennsco Corp., 141 NLRB 296, 308.
n Any backpay owing Garcia would be speculative or, in any event, de minimis. I
therefore shall not recommend a backpay remedy as to this employee.
206-446-66-vol. 154-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act, and because there appears from the manner of
commission of this conduct a disposition to commit other unfair labor practices, it
will therefore be recommended that the Respondent cease and desist in any manner
from infringing the rights guaranteed employees by Section 7 of the Act. .
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Elsa Canning Company is an employer within the meaning of Section 2(2) of
the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act
2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Drivers Local Union 657, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act in the manner hereinabove found the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating with respect to the hire, tenure and conditions of employment
of Herlinda T. Alaniz, Guadalupe R. Alegria, Juana B. Cipriano, Gumecinda Cor-
dova, Maria M Cortez, Maria Cuestas, Elvira Garza, Rebecca Gonzales, Ofelia
Marroquin, Ambrosia G. Montalvo, Maria Prieto, Francisca V. Rendon, Antonia C.
Rodriguez, Eligia C. Vargas, Juan Garcia, and Heriberto T. Alanis, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The allegations of the complaint that the Respondent has discriminated against
Concepcion Vasquez in violation of Section 8(a)(3) of the Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend pursuant to Section 10(c) of the
National Labor Relations Act, as amended, that Respondent, Elsa Canning Com-
pany, Elsa, Texas , its officers , agents, successors , and assigns, shall:
1. Cease and desist from.
(a) Discouraging membership in Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, General Drivers Local Union
657, or any other labor organization of its employees by discriminating in regard
to the hire and tenure of employment, or any terms or condition of employment of its
employees.
(b) Coercively interrogating employees concerning their union activities and sym-
pathies; and assigning more arduous or less desirable work to any of its employees
because of their union activities and sympathies.
(c) In any other manner interfering with, restraining , or coercing its employees in
the exercise of their right to self-organization , to form, join or assist the aforemen-
tioned labor organizations or any other labor organization, to bargain collectively
through representatives of their own choosing , and to engage in concerted activity
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from engaging in any such activities.
2. Take the following action which it is found will effectuate the policies of the
Act:
(a) Offer to Herlinda T. Alaniz, Guadalupe R. Alegria, Juana B. Cipriano, Gume-
cinda Cordova, Maria M. Cortez, Maria Cuestas, Elvira Garza, Rebecca Gonzales,
Ofelia Marroquin, Ambrosia G. Montalva, Maria Prieto, Francisca V. Rendon,
Antonia C. Rodriquez, Eligia C. Vargas, full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other rights and
privileges, in the manner set forth in the section above entitled "The Remedy." Offer
a position to Heriberto T. Alanis in the warehouse and thereafter regard him for all
intents and purposes as having employed on the date he would have been hired but
for the discrimination against him. Place Juan Garcia on a preferential hiring list
for any position that may become available in the warehouse substantially equivalent
to that which he held prior to his transfer which occurred in the first week of Decem-
ber 1963.
ELSA CANNING COMPANY 1715
(b) Except for Juan Garcia, make whole each of the aforementioned employees
in the manner set forth in the section above entitled "The Remedy."
(c) Post at its plant in Elsa, Texas, copies of the attached notice marked "Appen-
dix B ." 62 Copies of said notice , to be furnished by the Regional Director for Region
23, shall, after being duly signed by an authorized representative of the Respondent,
be posted by it immediately upon receipt thereot, and be maintained by it for a period
of 60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(d) Preserve and, upon request , make available to the Board or its agent for
examination and copying , andd payroll records, social security payment records,
timecards , personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Order.
(e) Notify the Regional Director for Region 23, in writing, within 20 days from
the receipt of this Decision , what steps it has taken to comply herewith.63
It is further recommended that the election held on June 18, 1964 , among the
employees in Respondent 's Elsa plant be set aside and that the Regional Director for
Region 23 conduct a second election at such time that he is satisfied a fair election
may be conducted.
62 In the event that this Recommended Order shall be adopted by the Board , the words
"a Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision
and Order".
03 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for Region 23, in writing,
within 10 days from the date of receipt of this Order , what steps the Respondent has
taken to comply herewith."
APPENDIX A
PAY PERIODS WORKED AT ELSA PLANT BY SAN BENITO EMPLOYEES
May 20*-
May 27
May 27-
June 2
June 3-
June 9
June 10-
June 16
June 17**-
June 23
June 24-
June 30
July 1-
July 7
Tilly 8-
July 14
Christina Gonzalez _____ __________ ________ XXXXX ---------- XXXXX XXXXX XXXXX XXXXX
Francisco. 0 Gallegos __ __________ ________ XXXXX ---------- XXXXX XXXXX XXXXX XXXXX
Bentura Carrion-------- ---------- -------- XXXXX ---------- XXXXX ---------- XXXXX XXXXX
Cecelia Iluerta- -------- ---------- -------- XXXXX ---------- XXXXX ---------- XXXXX -_-______-
Aurelia Bolado_________ __________ ________ XXXXX ---------- XXXXX XXXXX XXXXX XXXXX
Vicenta Aguilar_________ __________ ________ XXXXX __________ XXXXX XXXXX XXXXX ----------
Dolores 13arrientes ______ __________ ________ XXXXXX' ---------- XXXXX XXXXX XXXXX XXXXX
Maria Contreras ________ __________ ________ XXXXX ---------- XXXXX XXXXX XXXXX XXXXX
Dora Cerda------------- ---------- -------- XXXXX ---------- XXXXX XXXXX XXXXX XXXXX
Lupe Ybarra----------- ---------- -------- XXXXX ---------- XXXXX XXXXX ---------- ----------
Juana S Lucio__________ __________ ________ XXXXX --------- XXXXX
----------
XXXXX XXXXX
Anita Oros-------------- ---------- -------- XXXXX _-_-_- XXXXX XXXXX XXXXX XXXXX
Beatris Gonzalez ________ __________ ________ XXXXX ---------- XXXXX
I
XXXXX
l
XXXXX
^
XXXXX
*Tomato operations commenced on May 21.
**Election conducted on June 18
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of America, General
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers Local Union 657, or any other labor organization, by discriminating
against our employees in regard to their hire or tenure of employment or any of
their working conditions.
WE WILL NOT question our employees about their union membership, sym-
pathy, or activities in a manner violative of Section 8 (a) (1) of the Act.
WE WILL NOT assign to our employees more arduous or less desirable work
because of their union membership, sympathy, or activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right of self-organization, to form, join, or
assist unions, to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from such activities.
WE WILL offer each of the following named employees full reinstatement to
their former or substantially equivalent positions, or to the position for which
they applied, without prejudice to any seniority or rights and privileges enjoyed,
and make them whole for any loss of pay they may have suffered by reason of
the discrimination against them.
Herlinda T. Alaniz Maria Cuestas Maria Prieto
Guadalupe R. Alegria Elvira Garza Francisca V. Rendon
Juana B. Cipriano Rebecca Gonzales Antonia C. Rodriquez
Gumecinda Cordova Ofelia Marroquin Eligia C. Vargas
Maria M. Cortez Ambrosia G. Montalva
WE WILL offer Heriberto T. Alanis employment in our warehouse department,
without prejudice to any seniority or other rights and privileges he would have
enjoyed, and make him whole for any loss of pay suffered as a result of the dis-
crimination against him.
WE WILL place Juan Garcia on a preferential hiring list for any position which
may become available in our warehouse office substantially equivalent to that
which he held prior to his transfer from the warehouse office.
Our employees are free to become, remain, or refrain from becoming, members of
the above-named or any other labor organizations.
ELSA CANNING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the appropriate above employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611,
Extension 4271.
Thomas J. Aycock, Jr., an Individual , d/b/a Vita Foods and
Truckdrivers, Warehousemen & Helpers Local Union No. 512,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case No. 12-CA-2001.
September 27,1965
SUPPLEMENTAL DECISION AND ORDER
On February 28, 1962, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding,' finding, inter
1135 NLRB 1357.
154 NLRB No. 113.