Glazers Wholesale Drug Co., Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1974

209 N.L.R.B. 1152 (N.L.R.B. 1974)

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glazers Wholesale Drug Company, Inc. and Retail
Clerks Union, Local No. 455, Chartered by the
Retail Clerks International Association, AFL-
CIO. Case 23-CA-4800
April 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On December 13, 1973, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions, and the General Counsel filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order with the following
modification:
Although we otherwise agree with the findings of
the Administrative Law Judge, we would not premise
an 8(a)(1) finding on Villareal's remark to employee
Canales to the effect that if the Union was voted in,
"the blacks would take over," and that the Union
would then "run out the Chicanos and hire nothing
but blacks." The complaint alleged, and the Admin-
istrative Law Judge found, this conduct to be a
violation on the premise that Villareal's statement
was a threat that the "union would engage in racial
discrimination if the employees selected it as their
bargaining representative." Although such a remark
may well be grounds for setting an election aside
under the standards established for campaign state-
ments referring to racial issues in Sewell Manufactur-
ing Company, 138 NLRB 66, it is not, as our
dissenting colleague suggests, a threat of employer
action, and does not, therefore, establish a violation
of Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Glazers Wholesale Drug Company, Inc., San Antoni-
o, Texas, its officers, agents, successors, and assigns,
209 NLRB No. 175
shall take the action set forth in the said recommend-
ed Order with the following modifications:
1. Delete the phrase "threatening employees that
the Union would engage in racial discrimination if
the employees select the Union as their collective-
bargaining representative" from paragraph 1(a).
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER FANNING , dissenting in part:
I cannot agree with my colleagues that the
Administrative Law Judge's finding with respect to
Manager Villareal's remark to Canales and Jimenez
constituted merely a threat that the Union would
engage in racial discrimination if it won the election.
Clearly, he held that Manager Villareal had threat-
ened the employees' job security and thereby
interfered with their rights under Section 8(a)(1),
citing Certain-Teed Products Corporation, 153 NLRB
495, 507. There the Board held that Foreman
Schriver's "statement to Stoker and Vance Kellum,
white employees, that a Negro might replace them if
the Union won the election, was a threat to their job
security." Manager Villareal had said, "We Chicanos
should stick together because the blacks were trying
to get us to vote in the Union and after we voted the
Union in the blacks would take over, and, you know,
would run out the Chicanos and hire nothing but
blacks." The Chicanos to whom Manager Villareal
addressed his remarks knew that the Employer, not
the Union, hired employees. Obviously, Manager
Villareal was suggesting to them that their Employer
would cooperate with the blacks and hire nothing but
blacks, if the Chicanos dared to vote with the blacks
for the Union. In my opinion, this is the vilest type of
antiunion propaganda before an election , pitting two
minority groups against each other and insinuating
to one that the Employer would help the other
establish racial discriminatory hiring practices. I
would find this conduct to constitute a violation of
Section 8(a)(1) as did the Administrative Law Judge.
I The Respondent has excepted to certain credibihty findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd . 188 F.2d 362 (C.A 3). We have carefully
examined the record and find no basis for reversing his findings
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT coercively question you concern-
GLAZERS WHOLESALE DRUG CO., INC.
ing your union sympathies and activities or the
union sympathies and activities of your fellow
employees.
WE WILL NOT ask any of you to inform us of
the union activities, membership, and desires of
other employees nor will we ask you to spy upon
your fellow employees for this purpose.
WE WILL Not ask you about your attendance at
union meetings.
WE WILL NOT unlawfully offer you wage
increases or promise you other benefits in order
to induce you to refrain from engaging in union
activities or in order to induce you to repudiate
the Union.
WE WILL NOT ask you to falsely accuse the
Union of threats of violence or other unlawful
conduct.
WE WILL NOT threaten you with loss of
vacation or any other benefits for giving assist-
ance or support to the Union.
WE WILL NOT discourage membership in, or
activities on behalf of, Retail Clerks Union, Local
455, Chartered by Retail Clerks International
Association, AFL-CIO, or any other labor
organization of your choosing, by discriminating
against any of you with regard to your hire or
tenure of employment or any term or condition of
employment.
WE WILL offer Nathan A. Wilson immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and WE
WILL make him whole for any losses he may have
suffered as a result of our discrimination against
him.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to form, join, or assist or be represent-
ed by the above-named Union, or any other labor
organization, to bargain collectively through
representatives of your own choosing, or engage
in other concerted activity for the purpose of
collective bargaining or other mutual aid or
protection or to refrain from any or all such
activity.
GLAZERS WHOLESALE
DRUG COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
1153
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Dallas-Brazos Building , 1125 Brazos
Street , Houston , Texas 77002, Telephone 713-
226-4296.
DECISION
STATE*`FNT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge:
Upon a charge filed on May 31, and an amended charge
filed on August 6, 1973, by Retail Clerks Union, Local No.
455, Chartered by the Retail Clerks International Associa-
tion, AFL-CIO, herein called the Union or the Charging
Party, the Regional Director for Region 23 of the National
Labor Relations Board , herein called the Board , issued a
complaint on August 24, 1973, on behalf of the General
Counsel of the Board against Glazers Wholesale Drug
Company, Inc., herein called Glazers or the Respondent,
alleging violations of Section 8(a)(3) and ( 1) of the
National Labor Relations Act, herein called the Act. In its
duly filed answer , the Respondent , while admitting certain
allegations of the complaint , denied the commission of any
unfair labor practices.
Pursuant to notice , a hearing in this case was held before
me at San Antonio, Texas, on October 10 and 11, 1973. All
parties were represented and were afforded full opportuni-
ty to be heard,i to introduce relevant evidence, to present
oral argument , and to file briefs . Oral argument was
i At the hearing. and again in its brief , the Respondent moved that all
allegations of unfair labor practices occurring prior to February 24, 1973,
should be dismissed inasmuch as the complaint did not issue until August
24, 1973. and neither of the charges set out specific allegations of Sec
8(a)(1) of the Act. The Respondent 's motion was denied at the hearing and
that ruling is hereby affirmed Even assuming that some of the allegations of
8(a)(l) violations occurred during February, but prior to February 24, the 6-
month limitation set forth in Sec. 10(b) of the Act refers only to the charge
and not to the complaint . Since the original charge in this proceeding was
filed on May 31, 1973. there are no allegations in the complaint of violations
of the Act occumng more than 6 months before that date and, therefore, the
principle of Bryan Mfg Co v. N L R B, 362 U.S. 411 (1960). cited by the
Respondent , is not apposite here. Additionally , the Respondent argues that
since these matters were not specifically alleged in the charge, they cannot
now be heard as alleged in the complaint issued more than 6 months after
the alleged events. However, the Supreme Court has held in N LR B v.
Fant Milling Co., 360 U S 301 (1959), that "A charge filed with the Labor
Board is not to be measured by the standards applicable to a pleading in a
private lawsuit . Its purpose is merely to set in motion machinery of an
inquiry. N L KB v I & N Electric Co, 318 U S. 9. 18 . The responsibility of
making that inquiry and of framing the issues in the case is one that
Congress has imposed upon the Board, not the Charging Party To confine
the Board in its inquiry and in framing the complaint to the specific matters
alleged in the charge would reduce the statutory machinery to a vehicle for
the vindication of private rights. This would be alien to the basic purposes
of the Act. . Once its jurisdiction is invoked the Board must be left free
to make full inquiry under its broad investigatory power in order properly to
discharge the duty of protecting public rights which Congress has imposed
upon it. There can be no justification for confining such an inquiry to the
precise particularization of a charge." In the instant case , both the charge
filed on May 31 and the amended charge filed August 6 , although
specifically alleging only discriminatory discharges of employees, also
contain the following statement "By the above and other acts, the above-
named employer has interfered with, restrained , and coerced employees in
(Continued)
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
waived. Briefs were filed by counsel for the General
Counsel and the Respondent. Upon consideration of the
entire record herein, and upon my observation of each
witness appearing before me, I make the following:
FINDINGS OF FACT
1. 1HE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation, maintains an
office and place of business in San Antonio, Texas, where
it is engaged in the wholesale liquor business. During the
12-month period immediately preceding the issuance of the
complaint herein, a representative period, the Respondent
purchased goods and materials of a value in excess of
$50,000 which were shipped directly to Respondent's
facility from points outside the State of Texas. It is
admitted, and I find, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Sometime early in February 1973,2 the Union began an
organizational campaign among the warehouse employees
and truckdrivers at the Respondent's San Antonio facility,
the only facility of the Respondent with which the
proceeding is concerned. On February 15, the Union sent a
telegram to the Respondent evidently demanding recogni-
tion and bargaining. Thereafter, in April, a Board-conduct-
ed election, which the Union won by unanimous vote, gave
the Union the right to represent the Respondent's
employees in the unit above described as the certified
bargaining representative. At the time of the hearing
herein, the Union and the Employer were bargaining
toward a contract.
According to the complaint, during the period from
about the middle of February until as late as July 16, 1973,
the Respondent, through its warehouse manager, Louis
Villarreal, interfered with, coerced, and restrained various
employees in violation of Section 8(a)(1) of the Act by
interrogating employees with regard to other employees'
union activities, soliciting employees to conduct surveil-
lance of other employees' union activities, threatening
employees that the Union would engage in racial discrimi-
nation if selected, making promises of benefits in order to
induce the employees to give up their union activities,
soliciting an employee to falsely accuse the Union of
threats of violence, and threatening an employee with loss
the exercise of the rights guaranteed by Section 7 of the Act." Thus, the
8(a)(1) allegations of the complaint , even though not alleged specifically in
the charge, were related to the charges and grew out of the investigation of
the Board with regard to the charges filed. Accordingly they are properly
before the Board in this proceeding and relate to alleged incidents occurring
within the 6-month period set forth in Sec. 10(b) of the Act.
2 All dates herein are in 1973 unless otherwise specified
3 All of the foregoing from the credited testimony of Canales. Villarreal
of his vacation if he gave assistance or support to the
Union.
Additionally, the complaint alleges that Villarreal dis-
charged employee Nathan A. Wilson, an active union
adherent, and Roger E. Gonzalez, another employee,
because of their membership in and activities on behalf of
the Union and that such discharges were undertaken in
order to discourage union and other concerted activities.
The Respondent's answer, as noted above, denies the
commission of any unfair labor practices, Respondent
contending that Villarreal engaged in none of this activity
in violation of Section 8(a)(l); that Villarreal did discharge
Wilson, but for good cause and not for any discriminatory
purpose; and that Roger Gonzalez, a temporary employee
who worked only a small part of a week, failed to report
for work but was never discharged.
B. Interference, Coercion, and Restraint
1. The actions of Louis Villarreal
As noted above, the Union's campaign among the
Respondent's warehouse employees and truckdrivers
began in February. During that month, probably toward
the end of the month, Gilbert M. Canales, Jr., a
warehouseman, was approached by Warehouse Manager
Louis Villarreal in the bottle room. Villarreal asked
Canales if the latter knew who was involved in the union
activities in the warehouse. Upon Canales' reps that he
did not know, Villarreal pressed Canales and asked the
latter if Nathan Wilson was engaged in such activity.
Canales again answered that he did not know. Villarreal
then told Canales that he was pretty sure that the blacks
were involved in the union activity. Villarreal added that
he did not want anybody talking about unions in the
warehouse and that if anybody did talk about unions in the
warehouse, presumably during working time , Villarreal
would fire such individuals. Villarreal also added that there
was no way that the Union was going to come into the
warehouse. The conversation ended with Villarreal asking
Canales if the latter heard anything with regard to union
activity to inform Villarreal about the matter. Canales
answered that he did not wish to get involved.
Again, in the month of March, Villarreal engaged
Canales in another conversation concerning union activity
in the warehouse. Villarreal asked Canales and Jimmy
Jimenez, who was also present, if the latter two knew
anything about the union activity that was going on in the
warehouse. They both answered in the negative. Then
Villarreal told Canales and Jimenez "We Chicanos should
stick together because the blacks were trying to get us to
vote in the Union and after we voted the Union in the
blacks would take over, and, you know, would run out the
Chicanos and hire nothing but blacks." 3
During approximately the last week of March, employee
denied that he ever spoke to any of the employees with regard to the Union
or union activity except to tell the employees that they could not discuss the
Union on company time He also ascribed the conversation with regard to
the blacks to the statements of a black driver who had come in from the
Respondent's Houston , Texas, facility. However, he also ascribed the words
repeated above to Canales himself rather than to Villarreal Although
Villarreal testified emphatically upon direct examination that he knew
nothing about the union activity until some time in March , upon being
GLAZERS WHOLESALE DRUG CO., INC.
Margarito Jimenez, called Jimmy by his fellow employees,
was engaged in a conversation with Villarreal near the
latter's office. Villarreal asked who was behind the union
activity and who started the Union. Jimenez answered that
he did not know. Villarreal then asked if Wilson (Nathan
Wilson) or Homer (Homer Adams) were the principal
employees engaged in bringing the Union into the
Respondent's facility. Villarreal also asked Jimenez if the
latter would try to find out who was behind the union
movement. Villarreal told Jimenez that he had tried his
best to find out who had started the union movement.
Jimenez testified to another incident involving Villarreal.
According to Jimenez. 2 or 3 days before the election took
place on April 5, Villarreal offered Jimenez a job as
assistant to Villarreal in the warehouse at an increase in
salary. Jimenez further testified, as did Villarreal, that this
job offer had initially been made to Jimenez on an earlier
occasion and renewed as late as a week or two before the
hearing herein. However, at this critical time in April, just 3
days before the election, Villarreal conditioned the offer
upon the request that Jimenez "just drop the union and go
on his side, and, take the company's side."
Although Villarreal denied emphatically that he condi-
tioned the offer made on or about April 2 to Jimenez upon
Jimenez' repudiating the Union, for reasons heretofore
stated and hereinafter stated I do not credit Villarreal's
denial but do accept the testimony of Jimenez as quoted.
Accordingly, I find that on or about April 2 Villarreal
promised Jimenez the assistant's job at a wage increase if
Jimenez would repudiate the Union.
Another incident involving wage rate increases occurred
during the month of March before the election. At that
time, in the warehouse, Villarreal engaged employee
Theodoro Gonzalez and two other employees in a
conversation. He told the employees that he was going to
work out a raise for them, that he was going to call the
other companies and distributors in the same business and
find out what they were paying people doing comparable
work. Villarreal told the employees that he thought it
would come to about $2.25 or $2.50 an hour. He added,
however, that he could not do anything at that point
because of the Union. 4
Another incident involving a promise of a pay raise by
Villarreal occurred about 3 weeks before the election. On
or about March 20, employee Joe Correa, a truckdriver,
pressed on cross-examination Villarreal admitted that he received a list from
the Respondent 's counsel, informing him what he could or could not do,
some time in February and then finally admitted that the Respondent's
facility manager, James Christie, might have discussed the matter with him
in February shortly after February 15 when Christie received the demand
telegram from the Union Because of these inconsistencies in Villarreal's
testimony, and for other reasons which are set forth below in this decision,
and from my observation of Villarreal on the witness stand, I do not credit
Villarreal in many instances in which his testimony conflicts with the
testimony of other witnesses
4 From the credited testimony of Gonzalez Villarreal admitted the
incident but testified that the conversation occurred as the result of an
earlier request by the employees for a raise. Moreover, Villarreal testified
that he added, when he told Gonzalez that he could not do anything about
the raise because of the Union, that the reason was that if he gave them the
raise at that time it would be an unfair labor practice. I do not accept
Villarreal's version
5 All of the foregoing from the credited testimony of Correa. Upon cross-
examination of Correa . Respondent's counsel asked Correa if the latter had
1155
had returned from a delivery when Villarreal called to him
and asked "Joe, did you went to the meeting last night?"
Correa answered that he did not because he lived too far
away and that, moreover, he never went to meetings. Then
Villarreal stated, "Well, that's good, Joe. You've been a
good worker. You like working here?" When Correa
answered in the affirmative, Villarreal stated to him, "Well,
if you stay out of the union I probably will give you $2.50
an hour and I will give you some good work and some of
the other guys that I know." That ended the conversation.
Upon the date of the election, April 5, Villarreal, at
about 7 a.m., stopped Correa as the latter was entering the
warehouse to vote in the election. Villarreal stated that he
wanted Correa to help him out. When Correa asked
Villarreal what the latter wanted Correa to do, Villarreal
told him, "Well, just say any old shit about the union, that
they were trying to threaten you or trying to beat you up
for not joining the Union." When Correa stated that he
would not do that, Villarreal said "Well, are you going to
vote for the Union?" And Correa answered that he did not
know, that he probably would vote "no." However, Correa
voted "yes."5
Apparently, the work in the warehouse went along
without any untoward incidents until some time in July
when the Respondent and the Union were in the process of
negotiating and the employees in the warehouse and the
drivers were evidently talking about a possible strike. On
July 10, Jimmy Jimenez in delivering merchandise to a
customer in Austin, met one of the Respondent's display
men who was evidently setting up a display at the
customer's store. Jimenez told the display man, in what
Jimenez described as a joking manner, to make some
picket signs because the employees were going out on
strike. When Jimenez returned from Austin, Villarreal
asked Jimenez to come to the office. Villarreal asked
Jimenez what this strike talk was about. He told Jimenez
that the latter had "gotten everybody in Austin all shook
up." Then Villarreal told Jimenez that this could get the
latter in a lot of trouble and that he could get fired for that.
Jimenez explained to Villarreal that he was just joking, that
he did not mean anything by the remarks to the display
man .6
One other incident alleged as an unfair labor practice
occurred in July. Employee Manuel Rocha, a warehouse-
man, had worked on and off for the Respondent for
been discharged by the Respondent and if so did Correa feel unkindly
toward the Respondent . Correa answered in the affirmative . Respondent's
counsel also asked Correa if the latter had been told he had been discharged
for selling whiskey taken from the Respondent . Correa answered that he
had been told that but denied that he had ever done so. Significantly,
neither Facility Manager Christie nor Warehouse Manager Villarreal, in
testifying after Correa testified , mentioned the reasons for Correa's
discharge Upon my observation of the witness and Correa's complete
candor in saying that he did not feel kindly toward the Respondent and,
also, because I have heretofore not credited Villarreal's testimony , I credit
Correa and do not credit the version of these conversations given by
Villarreal Nor do I credit Villarreal's denials that certain parts of the
conversation ever took place
6 From the credited testimony of Jimenez Villarreal admitted to this
conversation and also testified that he told Jimenez that the latter would
have to probably see Manager James Christie later on and that Villarreal
would leave it up to Christie to decide about what to do regarding the
matter
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several years and had been discharged or had quit several
times. However, he was working during the period
immediately preceding the month of July and during July,
1973. Rocha felt that he should get his vacation even
though he had not worked steadily for the Respondent
during the period which would have made him eligible for
a vacation. Rocha had asked the Respondent for vacation
pay evidently on the basis that although he had not worked
continuously he had put enough time in during his various
periods of employment with the Respondent in order to
earn his vacation pay.
On approximately July 16, Villarreal engaged Rocha in a
conversation while Rocha was unloading a boxcar.
Villarreal said that he had something nice to talk to Rocha
about. Rocha answered that if it was something nice he
would talk to him. Villarreal then took Rocha down to the
dock and told the latter that if Rocha wanted his vacation,
to forget about the Union and that Rocha would get his 2
weeks or else he would not vouch for Rocha. Rocha told
Villarreal to forget about it, that he was going to stay with
the Union.7
2. Concluding findings with regard to the alleged
interference, coercion, and restraint
When, in February 1973, Villarreal interrogated employ-
ee Can ales as to the union activity of Nathan Wilson, such
interrogation was coercive and, accordingly, was violative
of Section 8(a)(1) of the Act. At the same time, when
Villarreal asked Canales to inform him of the union
activities with regard to any of the Respondent's employ-
ees, this was unlawful solicitation for information and
constituted interference and coercion in. violation of
Section 8(a)(1) of the Act.
As set forth above, in March, when Villarreal asked
Canales if the latter knew anything about union activity
that was going on in the warehouse, Villarreal violated
Section 8(a)(1) of the Act. When Villarreal combined that
unlawful interrogation with the remark that the Chicanos
should stick together because the blacks were trying to get
the employees to vote in the union and after they voted in
the union the blacks would take over, his remarks became
a threat to the employees' Job security if the Union won the
election. Such threat constituted interference with the
employees' Section 7 rights and, accordingly, violated
Section 8(a)(I) of the Act .8
When, during the last week of March, Villarreal asked
Jimmy Jimenez who was behind the union activity and
whether Nathan Wilson or Homer Adams were the
principal union adherents, he coercively interrogated
Jimenez and thereby violated the latter's Section 7 rights
and Section 8(a)(1) of the Act. During the same conversa-
tion Villarreal asked Jimenez if the latter would try to find
out who was behind the union movement, and solicited
Jimenez to act as an agent for surveillance of fellow
employees' union activities. Such request constituted
interference, coercion, and restraint in violation of Section
8(a)(1) of the Act.
Additionally, when Villarreal inquired of employee
All of the foregoing from credited testimony of Rocha I do not credit
Villarreal's denial of the conditional offer made to Rocha However, I do
credit Chnctie, whom I found to be a most forthright witness Christie
Correa on March 20 as to whether the latter attended a
union meeting and at the same time orally promised
Correa a $2.50 an hour raise if Correa would stay out of
the Union, Villarreal's activity constituted unlawful coer-
cive interrogation and unlawful promises of benefit which
interfered with Correa's Section 7 rights and the Section 7
rights of other employees. Accordingly, I find that by these
actions Villarreal, and the Respondent, violated Section
8(a)(1) of the Act.
In promising Jimenez on about April 2 a manager
assistant's job conditioned on Jimenez dropping the Union
and taking the Company's side, Villarreal interfered with
the employee's Section 7 rights and therein violated Section
8(a)(l) of the Act.
We come now to the incident occurring on the day of the
election in which Villarreal solicited employee Correa to
accuse the Union of threatening, or trying, to physically
assault Correa. This activity was clearly violative of
Correa's Section 7 rights and the Section 7 rights of the
other employees in that it tended to interfere with the
employees' free selection of a bargaining representative.
Therefore, this activity is violative of Section 8(a)(1) of the
Act.
Although the complaint alleges that at the same
conversation Villarreal told Correa not to vote unless he
voted against the Union, Correa's testimony makes no
mention of this incident. Correa did testify that Villarreal
asked Correa how the latter was going to vote. However,
there was nothing in Correa's testimony to indicate that
Villarreal specifically attempted to dissuade Correa from
voting if the latter was going to vote for the Union.
Accordingly, I shall order dismissed that portion of the
complaint which alleges such an incident.
Accepting the testimony of Manager James Christie to
the effect that, because Rocha had left Respondent's
employ and had been reemployed on several different
occasions, there was a question as to whether Rocha was
entitled to vacation pay, and accepting further that the
Respondent ultimately paid Rocha his vacation pay upon
advice of counsel, nevertheless, I find and conclude that
Villarreal told Rocha, in effect, that Rocha would not get
his vacation pay if Rocha gave assistance to or support to
the Union. I accept, further, the fact that the Respondent's
official policy with regard to Rocha's vacation was one of
good faith. However, in telling Rocha that Rocha's
vacation depended on whether or not the latter forgot
about the Union, Villarreal engaged in an activity which
threatened and coerced Rocha in his union activity and
sympathy. The record clearly establishes that at the time
that Rocha was seeking a vacation or vacation pay, the
Respondent was in the process of negotiating with the
Union toward a collective-bargaining agreement. It may
reasonably be inferred from the facts as presented by the
various witnesses, and especially by Villarreal, that at this
time there was talk in the shop about a strike. Accordingly,
Villarreal was understandably concerned about this phase
of union activity and it is reasonable to assume that,
therefore, he would have made such a statement to Rocha
testified about the Rocha vacation problem as hereinafter related
" See Certain-Teed Products Corporation, 153 NLRB 495, 507.
GLAZERS WHOLESALE DRUG CO., INC.
in order to prevent the latter from joining any possible
strike along with his fellow workers . Accordingly , I do not
find merit in the Respondent's contention that the election
having been over for months, and the Union having been
well established and every employee of the Respondent
having been a member of the Union , it was not logical for
Villarreal to have made such a statement to Rocha at the
time he is alleged to have done so. Therefore , I find and
conclude that by Villarreal 's statement to Rocha, Villarreal
committed an act which constituted a violation of Section
8(a)(1) of the Act.
The same conclusion is not reached , however, with
several other alleged violations of Section 8(a)(1) of the
Act. Thus, when in March, Villarreal allegedly informed
employees that a planned wage increase would be denied
because of the union activities . Villarreal' s explanation,
although not completely accepted , leads to the conclusion
that the withholding of the increase was not by reason of
the employees ' union activities or even because the
Respondent wished in any way to retaliate or to influence
the employees with regard to their union affiliation. The
increases were not promised or planned prior to the advent
of the Union, but f accept that portion of Villarreal's
testimony to the effect that before the advent of the Union.
Rocha and others had asked about a wage increase. By
reason of this request , Villarreal began making inquiries
among the Respondent 's competitors to find out, if
possible , what competitor's employees performing similar
work were receiving by way of emolument. While I accept
Rocha's testimony to the effect that Villarreal did not
mention anything about holding back on any increase
because the Respondent sought to avoid committing an
unfair labor practice , I find that from Rocha's testimony,
Villarreal did not condition the giving of the wage increase
upon the employees ' withdrawal of support for the union
or abstinence from union activity . He merely informed the
employees that the increase could not be given at that time
because of the advent of the Union. Although he may not
have done so with sufficient clarity to satisfy the employ-
ees, nevertheless what Villarreal was trying to tell the
employees was that the Respondent did not wish to be
accused of a violation of the Act by giving them a wage
increase during the height of the preelection campaigning.
This was not an instance of an employer threatening to
withhold a regularly scheduled wage increase because of
the advent of the Union or even a promised wage increase
in order to retaliate against the employees for their union
activities . Rather , I find and conclude that the statement
by Villarreal to Gonzalez was no more and no less than a
statement of what Villarreal considered to be the law.
Accordingly, I do not find that this statement was coercive
or that it restrained or interfered with the employees'
Section 7 rights. Therefore , I shall order the section of the
complaint alleging the violation to be dismissed.
The same conclusion is reached with regard to the
alleged violation of Villarreal 's threat of disciplinary action
against Jimenez after the latter had discussed with the
Respondent 's display man in Austin the possibility of a
strike . As noted above , Jimenez had asked the display man,
although in a joking manner , to prepare strike signs. While
it is true that Villarreal was concerned at that time about
1157
the possibility of the warehouse employees and the
truckdrivers going out on strike , it is equally true that
Jimenez requested the sign be made by the display man at
a time when both Jimenez and the display man were
engaged in worktime for the Respondent . Moreover, it is
equally true that such a statement to the display man in a
customer's store could very well have been an unwarranted
interference with the Respondent 's business . Accordingly,
under these circumstances , even though Villarreal might
not have accepted Jimenez ' explanation that the remark of
Jimenez to the display man was made in jest, Villarreal
under all the circumstances was warranted in implying to
Jimenez that there was a possibility that the latter would be
disciplined for talking about the strike while engaged in
conducting business for the Respondent . Accordingly, I
shall also dismiss the allegation of the complaint alleging
that this incident constituted a violation of Section 8(a)(1)
of the Act.
The complaint also alleged that on or about July 12,
Villarreal orally threatened employees with discharge if
they engaged in union activity . The record is devoid of any
proof with regard to this allegation and I shall therefore
order it to be dismissed.
C. The Alleged Unlawful Discharge of Roger E.
Gonzalez
The only testimony presented by the General Counsel
with regard to the allegedly unlawful discharge of Roger
Gonzalez was that of Jimmy Jimenez who testified that on
July 12 he had a conversation with Villarreal in which he
asked Villarreal what had happened to an employee named
"Roger." Jimenez did not know Roger 's last name and
Roger, according to Jimenez , had only been in the
Respondent's employ a few days. Villarreal . according to
Jimenez, answered that he, Villarreal , had let Gonzalez go
because the latter could not make up his mind whether to
go with the Union or against the Union.
According to Villarreal , he had not discharged Gonzalez
at all. Gonzalez had been taken on as a temporary
employee , had worked for the first day on a Friday as such
temporary employee for 5-1/4 hours . Gonzalez was off
Saturday and Sunday and came to work on Monday and
worked 101 /2 hours . Then he did not report to work on
Tuesday morning when he was supposed to and finally
arrived at 12:55 p .m. However, before that , Villarreal
called Roger Gonzalez and spoke to his wife , and she said
that Gonzalez had had car trouble . The next day Gonzalez
did not show up for work and never reported after that.
Villarreal, therefore, did not discharge him. Villarreal
admitted that he had asked Roger Gonzalez if the latter
would back him up and help him continue with the work in
the event that the men went on strike. Gonzalez told
Villarreal that he would think it over. But Gonzalez never
informed him because Gonzalez never returned to work.
With regard to Jimenez' claim that Villarreal told Jimenez
that Gonzalez could not make up his mind to choose
between the Union and the Company, Villarreal testified
that what he said was only that Gonzalez could not make
up his mind.
I find and conclude that Villarreal 's version of what
occurred both with regard to the manner in which Roger
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzalez left the Respondent's employ and the content of
his conversation with Jimenez is the more reliable of the
two versions. This is so because Gonzalez was only a
temporary employee and, at that, very unreliable. Respon-
dent's records introduced into evidence at the hearing
bolster this conclusion. Additionally, Gonzalez failed and
refused to attend the hearing herein and testify on behalf
of the General Counsel. While it is possible that an
unlawful dischargee may refuse to testify on behalf of the
General Counsel for reasons known only to himself, it is
very unusual that such refusal is made. Accordingly, I
conclude that the reason Gonzalez did not appear at the
hearing to testify was because, in fact , he was not
discharged but left the Respondent's employ voluntarily. I
further conclude that Jimenez' testimony, although not
purposely misleading , nevertheless represented Jimenez'
interpretation of a conversation, the implications of which
he did not fully understand. Thus, I find that Jimenez'
testimony in this regard constitutes too thin a threat upon
which to base a finding of discriminatory discharge. I
conclude, therefore, that the General Counsel has failed to
establish by a preponderance of the credible evidence that
Roger Gonzalez was unlawfully discharged by the Respon-
dent. Accordingly, I shall order that allegation of the
complaint alleging such discharge to be dismissed .9
D. The Discharge of Nathan A. Wilson
Wilson was employed as a warehouseman by the
Respondent on August 11, 1972. In early February 1973, at
the time the Union began its organizational campaign
among the Respondent's warehouse employees, Wilson
became a union activist. Thus, during the organizational
period Wilson talked to other employees on occasions
before work and after work about the Umon. He spoke,
concerning the Umon, to every man in the unit at one time
or another. He also obtained five or six signed cards and
returned them to the union representative. The extent of
Wilson's activities on behalf of the Union can better be
understood in view of the fact that he obtained five or six
signed cards out of a total of 14 employees in the unit.
On March 27, Wilson was according to Wilson, ill and
could not report to work. According to both Wilson and
Wilson's wife, Etta, Wilson had his wife call the Respon-
dent's plant at 6:30 a.m. on that day to inform Villarreal
that Wilson would he unable to attend work that day
because of the illness. According to Mrs. Wilson, she called
on a telephone from a neighbor's house, because Wilson
does not have a telephone, and spoke to a lady who told
her that she would inform Villarreal that Nathan Wilson
would be absent. As hereinafter related, the Respondent
contends, through several witnesses, that no such call was
ever received by the Respondent and Villarreal was not
informed that Wilson would be absent on March 27. In
any event, when Wilson reported to work at his normal
working time on March 28, Villarreal told Wilson that the
Respondent did not need Wilson any more. Wilson left the
Respondent's premises and went to the union hall where he
was instructed to obtain a written reason for his discharge.
s In crediting Villarreal's version of the quitting of Roger Gonzalez and
the conversation with regard thereto with Jimmy Jimenez, I am aware that
in other instances I have refused to credit Villarreal's testimony. To the
Later that day Wilson returned to the Respondent's
premises and spoke to the San Antonio facility manager,
James Christie. It was evident that Christie did not know
that Wilson had been discharged. According to Christie,
whom I fully credit in every respect, Wilson told Christie
that he had been absent the day before and had not called
in. Christie then informed Wilson, according to Christie,
that they had a more or less unwritten rule that when an
employee was to be absent or late he was to call in and
inform Villarreal or whoever was in charge about the
absence or lateness . Thereupon Christie called Villarreal,
who told Christie that this was not the first time that he
had had difficulties in this respect with Wilson. Christie
asked Villarreal whether Wilson was a good worker and
Villarreal replied that he was a good worker when he was
present. Christie told Villarreal that this was Villarreal's
decision and that he would back him up. Whereupon
Christie instructed Villarreal to draft a written reason as to
why Villarreal discharged Wilson. This statement was
given to Wilson. When Christie gave Wilson the written
statement which contained the information that Wilson
had been warned three or four times on earlier occasions
about his being late or absent without calling in , Christie
said that he was very sorry that the thing had happened
and if Wilson needed any assistance in the future he would
write him a letter and would be glad to do anything and to
help Wilson in any way he could. However, he did not
remstate Wilson.
The General Counsel would seem to contend that firstly
there was no rule in the Respondent's establishment that
an employee who was going to be absent had to call in and
inform the Respondent's officials. Secondly, General
Counsel contends that in the case of Wilson, he did call in
on the day he was absent and that Villarreal was informed
that Wilson was going to be absent. Thirdly, General
Counsel contends that, in any event, whether Wilson's wife
called in or not, the Respondent through Villarreal seized
upon Wilson's absence as a pretextual excuse for discharg-
ing Wilson when, in fact, Villarreal discharged Wilson for
the discriminatory reason that Wilson was most active in
bunging the union into the Respondent's facility.
On the other hand, the Respondent contends that the
General Counsel has failed to establish by a preponder-
ance of the credible and substantial evidence that the
discharge of Wilson was motivated by antiunion considera-
tions; that the General Counsel has failed to prove the
Respondent had knowledge of Wilson's union activity; and
that, in contrast to this, the Respondent has proved
substantial and legitimate business reasons and justifica-
tion for Wilson's discharge.
The first issue presented by the conflicting contentions is
whether the Respondent did have a mandatory call-in rule.
Heretofore, I have alluded to Christie's testimony to the
effect that when Wilson came back to the Respondent's
facility to obtain a written reason for his discharge,
Christie told Wilson that the Respondent had "more or less
such a rule." In further testimony Christie expanded upon
this alleged rule. He admitted that although the Company
extent that I credit a witness only in part, I do so upon the evidentiary rule
that it is not uncommon to believe some and not all of a witness'
testimony " .N L R B v Universal Camera Corp, 179 F 2d 749. 754 (C A 2)
GLAZERS WHOLESALE DRUG CO., INC.
does not have printed rules as to what people can and
cannot do , there "is a practice of the Respondent that any
employee , whether he be a warehouseman or a salesman,
that they call in at all times and let the Company know if
they have a problem or if they can't be at work."
Moreover , Christie testified that this practice has been in
effect since Christie has been manager of the facility, a
period of some 14 years. Christie further testified that the
rule was necessary in order to arrange the workload in the
warehouse inasmuch as they had trucks going out. Because
the trucks leave the warehouse anywhere from 6 : 30 to 7 in
the morning , drivers must be available and people to load
the trucks must be available. However , Chnstie testified
further that with regard to instructions given the ware-
house employees, Christie does not talk to these employees
when they are hired. Villarreal hires them and if the
instructions are given to the employees it is Villarreal who
gives them.
In addition to the testimony of Christie , several of the
witnesses called by the General Counsel testified with
regard to the alleged work rule. Thus, employee Gonzalez
under questioning by counsel for Respondent admitted
that Villarreal had told him to call in when he was going to
be absent . He further admitted that , in fact, Villarreal told
him Villarreal would give him only one more chance when
Gonzalez also failed to appear for work on March 27, the
day Wilson failed to appear. However , in his case, when
Gonzalez reminded Villarreal that some time before that
Villarreal had been told by Gonzalez that the latter would
be absent at some time because he had to move his home,
Villarreal did not discharge Gonzalez.
Employee Sylvester Linzy, Jr., testified that he was
absent 15 to 20 times during the period of time that he was
employed and that if he did call in he would have to speak
to Louis or Louis' assistant . However , Linzy insisted that
there was no announced company policy with regard to
calling in and reporting absences until after the election.
Nevertheless , on cross-examination Linzy finally admitted
that even before the election upon a number of times when
he was going to be absent he did have someone call in for
him. He explained this by saying that he called in to keep
Villarreal from getting angry . He admitted that Villarreal
would become angry when Linzy did not call in when the
latter was going to be absent . Additionally, even Wilson on
cross-examination admitted that he had been warned three
or four times about being absent without calling in. Since
Wilson was discharged before the election , this testimony
of Wilson would tend to destroy the testimony of Linzy to
the effect that there was no announced policy of calling in
until after the election.
Accordingly, and without relying on Villarreal's own
testimony to the effect that there was such a rule, I find
that, indeed , the rule existed. If Villarreal did not explain
the rule to the employees immediately upon their being
hired , I find and conclude that the employees, including
Nathan Wilson , knew of such a rule and that it was
enforced to some extent , at least . This conclusion is
bolstered by the very fact that Nathan Wilson and his wife
testified that on the morning of March 27, Mrs. Wilson
called in to inform Villarreal of the fact that Wilson was ill
and could not report to work that day.
1159
The second issue presented by the opposing contentions
is whether there was , in fact , a telephone call placed by
Mrs. Wilson to the Respondent's facility and, if such
telephone call was made , whether Villarreal was apprised
of the fact that Wilson could not attend work on March 27.
Manager Chnstie testified on direct examination that no
one could have received the call , if it was made , at 6:30
a.m. on the morning of March 27 because at that time no
one was present in the office to receive the call . He further
testified that the office help arrived much later . However,
on cross-examination Christie was less certain of himself
and admitted first that some time in April one of the girls
started to arrive at 6:30 and then finally admitted that this
early arrival practice could have begun some time in
March. He further testified that the only line open before 8
a.m. is the so-called "no. 5 line," the long distance line, and
that the local line was not answered before that time.
Additionally, Georgia Ann Sargent, a witness called by
the Respondent, stated that she answers the telephone in
the Respondent's office , and was working in the Respon-
dent 's office, where the telephone calls are received, on
March 27, 1973. As a matter of fact , Sargent testified that
she began coming in at 6:15 in the morning the week of
March 27. Accordingly, she could have and would have
received the telephone call allegedly made by Mrs. Wilson
had such call been made . However, Sargent further
testified that she never received any such call and that if
she had she would have relayed it to Villarreal.
Thus the problem is presented as to whether or not a call
was related to Villarreal on the morning of March 27.
According to Mrs. Wilson a call was made to the
Respondent 's premises and a lady answered the telephone.
According to employee Sargent, she was the one who
would have received the call but she received no such call
that day. While it is possible to speculate that another
female employee , one who was assigned at that time to the
IBM room , could have received the call and forgotten to
transfer it to Villarreal, I cannot indulge in such specula-
tion . Moreover, Christie, whom I have heretofore credited,
testified that the IBM operator possibly gets in by 7 a.m.
Since she is the only other possible female employee
getting in earlier than the rest of the office employees, and
she does not get in until 7 a .m. at the earliest, I must
conclude that although Mrs. Wilson might have placed a
call to the Respondent's premises , the message never
reached Villarreal. In conclusion , with regard to this issue,
I carefully observed Sargent on the witness stand and from
her demeanor was convinced that she was a truthful and
reliable witness.
However, even assuming that Villarreal did not receive
the message to the effect that Wilson was not going to
report for work on March 27 because of illness , there is still
the question of whether Wilson was discharged for union
activity. From the testimony of a number of the employees
it is apparent that although there may have been a practice
or a rule requiring the employees to call in if they could not
report to work , that nevertheless there were times when
Villarreal disregarded this rule . Thus, if an employee had a
good excuse for being out on a previous day Villarreal
would, at times, permit the employee to work the following
day and not even reprimand the employee . Thus, employee
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Linzy credibly testified that only once when he came back
after being absent and not calling in did Louis Villarreal
speak to him about it. Villarreal told Linzy that he would
have to do better or Villarreal would have to let Linzy go.
However, at other times Villarreal did not reprimand Linzy
for not calling in. But, there were times when Linzy
reported in late and Villarreal sent him home as a
disciplinary measure.
Also, employee Canales testified that there were times
when he was absent without calling and after he returned
to work and gave Villarreal an explanation of his absence,
Villarreal accepted that explanation without reprimanding
Canales. Villarreal himself indicated that there were times
when, if an employee had a good reason for being absent
the day before, Villarreal excused him for being absent
even though the employee did not call in.
From all of this testimony it is concluded that although
the rule did exist it operated completely at the discretion of
Villarreal and whether an employee was chastised in any
way or disciplined because of a failure to call in depended
upon Villarreal's reaction to the employee's reason at the
time it was given to Villarreal when the employee
ultimately did return to work. Thus, although Villarreal
may have warned Wilson on earlier occasions that the
latter should call in, there were other times when he
apparently permitted Wilson to work even though Wilson
had missed a day without calling in. On March 28,
however, Villarreal did not give Wilson an opportunity to
explain Wilson's illness the previous day, but discharged
Wilson merely by saying that he had no more use for the
latter. Thus, in a very real sense, whether or not Wilson's
message that he could not report in because of illness on
March 27 was conveyed to Villarreal becomes relatively
unimportant in assessing the true reasons for Wilson's
discharge. Before disposing of the issue of whether the
discharge was for discriminatory reasons, however, the
Respondent's contention that Villarreal had no knowledge
of Wilson's union activity must be disposed of.
It has heretofore been found that Villarreal asked both
Canales and Jimenez whether Nathan Wilson was involved
and had started the union movement in the Respondent's
shop. Accordingly, although Villarreal denied that he had
knowledge of Wilson' s union activity prior to the dis-
charge, this denial is contradicted by the fact of the
interrogations of Canales and Jimenez to the extent that
Jimenez must have had some suspicion that Wilson was
involved in organizing on behalf of the Union.
Additionally, Villarreal, on cross-examination, admitted
that he had heard rumors that Wilson was in the Union
and about the election and that the Union had offered the
men certain benefits . He heard these things in the
warehouse inasmuch as the employees did not follow the
rule that he had dictated to them about not talking about
the Union during working hours. Finally, I have noted
above that the Respondent 's warehouse and truckdnving
employees constituted a unit of only about 14 individuals.
This small group, confined as they were to the space of the
warehouse, and whose members, by Villarreal's own
admission , discussed union matters during working hours
while being supervised by Villarreal, presents a sufficient
basis to infer that Villarreal , especially in view of all of the
other factors heretofore cited , had knowledge and knew of
Wilson 's participation in the union organizational drive at
the time that Villarreal discharged Wilson.10 Accordingly, I
find and conclude that the Respondent 's defense that
Villarreal did not have any knowledge of Wilson's union
activity until after Wilson was discharged is without merit.
There remains for resolution the issue of motivation:
whether Villarreal discharged Wilson because the latter
failed to call in regarding his absence of March 27 despite
the warnings that Wilson had received on prior occasions
when he failed to call in , or was absent without reason, or
whether Villarreal discharged Wilson because the latter
was a leader of the union movement in the Respondent's
facility. On the one hand, the Respondent most certainly
had in effect a practice or rule that a call-in was required in
the event an employee had to be absent. On the other
hand, the record equally establishes the fact that Villarreal,
himself , upon occasion , waived the application of this rule
and, in some instances , did not even chastise in any way an
employee for failing to call in to inform Villarreal of an
absence. As heretofore found , therefore , the application of
the rule by Villarreal as it applied to the employees under
his supervision was one of complete discretion depending
upon Villarreal' s desire to apply it in a particular case.
Additionally, by the activity heretofore found to be
violative of Section 8(a)(1) of the Act and of the employees'
Section 7 rights, Villarreal demonstrated his strong
opposition to and, to a certain extent, animus toward the
Union and the union movement in the Respondent's
warehouse . Some of this activity consisted of directly
questioning other employees as to whether Wilson was the
leader in the union movement . Therefore , because Villarre-
al had knowledge of Wilson 's union activity, in the light of
the almost complete control over the hiring and firing in
the warehouse vested in Villarreal, together with his
demonstrated opposition to the Union , the timing of
Wilson's discharge becomes very significant. Although the
record establishes that Wilson had been warned on a
number of occasions with regard to his failure to call in
and, moreover, a number of Wilson's fellow employees had
also failed to call in and were warned for this infraction,
the discharge of Wilson came at a time when the Union's
preelection campaign was at its height . I conclude that this
factor, in view of all of the other circumstances surround-
ing the discharge and preceding the discharge , preponder-
ate in favor of a finding that Villarreal seized upon
Wilson's unexcused absence and failure to call in as a
pretextual reason to discharge Wilson.
In coming to this conclusion I also note two other
factors . They are the fact that Wilson had a legitimate
reason for being absent on March 27 and was not given a
chance by Villarreal to even explain his absence , and the
fact that Villarreal told Manager Christie that Wilson was
a good worker when the latter was present . An additional
factor, as mentioned above , is that Villarreal had listened
to Wilson and other employees upon their return to work
after a failure to call in and had permitted them to
continue in the Respondent's employ upon the showing of
a good reason for the absence . Accordingly, I find and
10 See Weise Plow Welding Co, Inc., 123 NLRB 616
GLAZERS WHOLESALE DRUG CO., INC.
conclude that, on the record as a whole, the General
Counsel has established by a preponderance of the credible
evidence that Wilson was discriminatorily discharged by
Villarreal because of Wilson's union activity and that such
discharge was violative of Section 8(a)(3) and (1) of the
Act.
I have not overlooked the testimony of Villarreal to the
effect that in the 2 years preceding the hearing herein,
Villarreal had discharged two other employees for failing
to call in. However, on the basis of the unsubstantiated
testimony of Villarreal in this respect and in view of the
lack of credibility of Villarreal's other testimony herein, I
do not find this testimony sufficient to warrant a refusal to
make a finding of discriminatory discharge.tt
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, as set forth below, designed to
effectuate the policies of the Act.
It having been found that the Respondent, by unlawful
interrogation, solicitation of employees for surveillance,
promises of benefit, and other acts, has restrained and
coerced employees in violation of Section 8(a)(1) of the
Act, I shall recommend that the Respondent cease and
desist therefrom.
Having found that the Respondent discrinnnatorily
discharged Nathan A. Wilson, I shall recommend that
Respondent offer Wilson immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges. In
addition, I shall recommend that the Respondent make
Wilson whole for any loss he may have suffered by reason
of the discrimination against him by payment to him of a
sum of money equal to that which he normally would have
earned from the date of his discharge, less net earnings
during said period. Backpay shall be computed with
interest on a quarterly basis in the manner prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
291-295; Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
it In assessing Villarreal's credibility or lack thereof, I note that much of
Villarreal's testimony was given pursuant to leading questions by Respon-
dent's counsel . Secondly. I have heretofore noted that Villarreal's testimony
was contradictory in certain respects Thirdly, I found Villarreal's testimony
evasive, especially on cross-examination.
12 In the event no exceptions are filed as provided by Section 102.46 of
CONCLUSIONS OF LAW
1161
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees with regard to their
union activities and the union activities of their fellow
employees, by soliciting employees to engage in acts of
surveillance of other employees' union activities, by
making promises of benefit to induce employees to refrain
from engaging in union activities, by soliciting an employ-
ee to falsely accuse the Union of threats of violence, and
by other acts, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed said employees in Section 7 of the Act
and thereby Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminatorily discharging employee Nathan A.
Wilson, the Respondent has violated and is violating
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in other activities
alleged in the complaint as violations of Section 8(axl) of
the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:
ORDER12
Respondent, Glazers Wholesale Drug Company, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies and activities and the union sympathies
and activities of other employees; soliciting employees to
engage in surveillance of the protected concerted or union
activities of other employees; making unlawful promises of
benefit to employees for the purpose of inducing said
employees to refrain from engaging in union activities and
to repudiate the Union; threatening employees that the
Union would engage in racial discrimination if the
employees select the Union as their collective-bargaining
representative; soliciting employees to falsely accuse the
Union of threats of violence; and threatening employees
with loss of benefits in the form of vacations if the
employees give assistance to or support the Union.
(b) Discouraging membership in Retail Clerks Union,
Local No. 455, chartered by the Retail Clerks International
Association, AFL-CIO, or any other labor organization,
by discharging any employee for engaging in union or
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other protected concerted activity, or discriminating
against employees in any other manner in regard to their
hire and tenure of employment or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their nghts to
form, join, assist , or be represented by Retail Clerks Union,
Local No. 455, chartered by the Retail Clerks International
Association, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing or to engage in other concerted activity for the
purpose of collective bargaining, or other mutual aid or
protection, or to refrain from any and all such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Nathan A. Wilson immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other nghts and
privileges previously enjoyed, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and
reports and all other reports necessary to analyze the
amount of backpay due under this Order.
(c) Post at its facility in San Antonio, Texas, copies of the
notice attached hereto marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 23, in
wnting, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act not
found herein.
13 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board
Order of the National Labor Relations Board" shall be changed to read