Gooch Packing Co.

National Labor Relations Board - Board Decisions

Dec 9, 1966

162 N.L.R.B. 1 (N.L.R.B. 1966)

Gooch Packing Company and United Packinghouse , Food and
Allied Workers, AFL-CIO. Case 16-CA-P609. December 9,.
1966
DECISION AND ORDER
On August 30, 1966, Trial Examiner Lowell Goerlich issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief, the General Counsel filed cros exceptions and
a supporting brief, and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Dlembers Fanning, Brown, 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
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.] 2
i While otherwise in agreement with his colleagues, in concluding that the Respondent
discriminatorily enforced its "no-interference with production " plant rule, Member Zagoria
does not rely on the fact that the Respondent permitted solicitation for charities , flowers,
and voting registration during company time.
2 The telephone number for Region 16 , appearing at the bottom of the notice attached
to the Trial Examiner's Decision , is amended to read : Telephone 335-4211, Extension 2145.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by United Packinghouse, Food and Allied Workers , AFL-CIO,
herein called the Union , the General Counsel of the National Labor Relations Board,
herein called the Board , on behalf of the Board by the Acting Regional Director for
Region 16 on May 24 , 1966, issued an amended complaint and notice of hearing
naming as the Respondent, Gooch Packing Company . The amended complaint
alleged that Respondent had violated Section 8 ( a)(1) and ( 3) of the National Labor
Relations Act, as amended, herein referred to as the Act. The Respondent, by
answer timely filed , denied that it had engaged in the unfair labor practices alleged.
162 NLRB No. 2. 1
264-047-67-vol. 162-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The matter came on to be heard before Trial Examiner Lowell Goerlich on June 14,
15, and 16, 1966, at Abilene, Texas. At the hearing, each party was afforded full op-
portunity to be heard, to call, examine and cross-examine witnesses, to argue orally
upon the record, to submit proposed findings of fact and conclusions of law, and to
file briefs. All briefs have been reviewed and considered by me.
The issues which have been submitted for my consideration are: (1) Whether
the Respondent violated Section 8 (a) (1) of the Act by discriminatorily promulgating
and discriminatorily enforcing a rule prohibiting solicitation of union membership or
support during its employees' working time by orally advising its employees of
such rule, orally warning them of the penalty of discharge if it were violated, and
by discharging an employee for allegedly violating the rule; (2) Whether the
Respondent violated Section 8(a)(1) of the Act by unlawful interrogations and
threats; (3) Whether the Respondent, by B. D. Gooch in a speech, violated Section
8(a)(1) by threatening that if the Union represented its employees, a strike would
be inevitable; (4) Whether the Respondent discharged Charlie Fleming, its employee,
in violation of Section 8(a)(3) of the Act.
Upon the whole record I and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS
1. TILE BUSINESS OF THE RESPONDENT
The Respondent, Gooch Packing Company, is and has been at all times material
herein, a corporation duly organized and existing by virtue of the laws of the State
of Texas, having its principal place of office and business at 800 Almond Street,
Abilene, Texas, and has been at all times herein mentioned, continually engaged at
such place of business in the production of meat products.
During the past 12 months, which period is representative of all times material
herein, the Respondent has purchased livestock valued in excess of $100,000, of
which livestock valued in excess of $50,000 was transported to its plant directly
from points located outside the State of Texas, and has made sales of meat and meat
products valued in excess of $50,000 to customers outside the State of Texas.
I find that the Respondent is now and has been at all times material herein an
employer engaged in commerce within the meaning of Section 2(6) and (7) of the
Act and that it will effectuate the policies of the Act to exercise jurisdiction herein.
If. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material herein, a labor organization
within the meaning of Section 2(6) and (7) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged coercive speech of B. D. (Pete)
Gooch, delivered January 7, 1966
According to the testimony of Marion Garcia Ramon, field supervisor for the
Union, a general organizational meeting of the Respondent's employees was held
on December 21, 1965. Another general organizational meeting was held on Jan-
uary 5, 1966. On January 7, 1966, Pete Gooch, president of the Respondent, read
a speech to the Respondent's employees at its plant during working hours. Gooch
did not deviate from the prepared text.
The General Counsel alleges that such speech was unlawful in that it contained a
threat that "if the union represented its employees a strike would be inevitable."
While the speech of President Gooch has a distinct antiunion tone and without a
doubt was for the purpose of persuading employees to reject the Union, I have
been unable to find either by implication or actual words used that a threat was
conveyed to the effect that "if the Union represented [the Respondent's] employees
a strike would be inevitable." I thus recommend that paragraph 7(c) of the
amended complaint, in which such allegations appear, be dismissed.
B. The alleged unlawful threats and interrogations
On January 4, 1966, Charlie Fleming was called into the office of Robert Gooch,
vice president of the Respondent,2 and warned, under the threat of discharge, that
I General Counsel ' s motion to correct the record is granted.
2 Gooch testified that he was "responsible for personnel, advertising and sales."
GOOCH PACKING COMPANY 3
he should not try to sign people up for the Union on company time and interfere
with their work.3
Jack Skipworth, floor cut, curing, and boning foreman, who was on friendly terms
with Fleming although not his supervisor, was aware of the warning given Fleming
at the time the following incidents occurred. About 4 days after Fleming was
warned, Skipworth asked him how long the "Union had been here." Fleming
answered that it had "been a good while now." Skipworth then asked Fleming
whether the Union was "out of Fort Worth" to which Fleming replied, "Yes." Skip-
worth further inquired whether the Union's representative was Steve Mouser.4
Fleming refused to answer the question. According to Skipworth, Fleming said he
would "take the Fifth Amendment."
Fleming also testified that sometime prior to January 31, 1966, he went into Skip-
worth's office to get a Band-Aid. Skipworth was present. Fleming remarked, "We
ain't got no more band aids?" Skipworth responded, "Why, the company ain't
going to buy no more band aids . . you all are going to have to start from
scratch . . . . You all are going to lose your profit sharing and sick leave."
Fleming responded, "Aw, no, we're not going to lose that, are we?" Skipworth
answered, "Yes, you're going to have to start from scratch." 5 The Union was not
specifically mentioned during the conversation.
Skipworth's version of the same conversation disclosed that it started out by
Fleming stating, "Jack, give me a band aid, will you?" Skipworth without looking
up replied, "Oh, Charlie, we're going to quit furnishing band aids and sick leave and
clothes, . and hospitalization." Fleming replied, "Since when?" Skipworth said,
"Oh, right now"; Fleming laughed and Skipworth opened the drawer to his desk and
gave Fleming a Band-Aid.
About 2 weeks later Skipworth came through the sausage kitchen where Fleming
was working. According to Fleming, Skipworth said to him, "About ready to throw
in the towel, Charlie?" Fleming answered, "No, Jack. . What's wrong with
the union?" Skipworth said, "There's nothing wrong with the union, but the dang
niggers run it." Fleming said, "Well, this union had-the district man is a Negro,"
and that 10 percent were Latin and 60 percent were White and 30 percent were
Negroes. Skipworth replied, "Well, there must not be very much turnout of
Whites, then."
Skipworth testified that he remembered the incident relating to the throwing in of
the towel. In fact he indicated that he had said to Fleming, "Are you ready to
throw in the towel?" on several occasions.
Skipworth testified that in addressing such remarks to Fleming he "would be joking
and cutting up with Charlie . like [he] always had." On one occasion when
Skipworth asked Fleming whether he was "ready to throw in the towel" he answered,
"No, but do you think I should?" Skipworth said, "Yes." This incident occurred
in Skipworth's office. On another occasion which occurred in the sausage kitchen,
Fleming answered, "Maybe I should."
Shortly before Fleming was discharged Skipworth testified that Fleming came into
his office. During a discussion Fleming said, "I wish I had never got in this mess."
Skipworth replied, "Charlie, you can get out of it." Whereupon Fleming said, "No,
I've gone so far that I can't go backwards, I've got to go forwards." Skipworth's re-
sponse was, "No, you haven't Charlie." Fleming also told Skipworth "he didn't have
any support in the situation."
Fleming's version of the foregoing discussion was similar to Skipworth's version.
However, Fleming testified that Skipworth started the discussion with the question,
"Don't you wish you had never got in this mess?" and observed, "There are ways
to get out if you desire to."
Fleming admitted that Skipworth and he were good friends and that they "used
to joke a lot together." However, Fleming said he did not think that Skipworth's
remarks about "throwing in the towel" were offered "quite in a joking manner."
8 Gooch testified, "Charlie its been called to my attention that you have been trying to
sign people up for the union on company time and interfering with their work and I want
it clear that we don't have to allow this to go on and we're not going to allow it to go on
and it better not happen again."
' Mouser was a field representative of the Union, who was known to Skipworth when he
was a member of the Union.
5 Employer statements to employees that if a union is chosen collective bargaining will
commence "from scratch" have been held to be coercive and in violation of the Act. See
Federal Envelope Company, 147 NLRB 1030, 1037, 1040, footnote 25; Preston Products
Company, Inc., 158 NLRB 322 (TXD, footnote 74).
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the period in which the foregoing discussions occurred , Skipworth was
aware of the warning given to Fleming in respect to his engaging in union activities.
Moreover during this period the Respondent had voiced its displeasure of the Union
in a speech delivered by its president on January 7, 1966. Thus Fleming's attach-
ment to the Union may not be considered as a "joking matter" and was of such a
serious nature as to warrant his discharge if he allowed his union activities to exceed'
the restraints placed upon him by the warning . Hence, in the antagonistic atmos-
phere created by President Gooch's speech and Vice President Gooch's warning, the'
remarks of Skipworth viewed as a whole , even though rendered in a jocular vein,.
may not be treated as vapid discourse or idle chatter but were of such character as to
discourage union activity and reasonably tend to coerce , restrain , and interfere with'
employees in the exercise of their rights guaranteed by Section 7 of the Act. The
conduct of Supervisor Skipworth , above detailed , was in violation of Section 8(a) (1)
of the Act.
C. The alleged illegal no-solicitation rule and the discharge
of Charlie Fleming on March 4, 1966
First: The record does not disclose that the Respondent maintained a written rule-
governing solicitation of any character . Prior to date upon which Charlie Fleming
was warned by Robert Gooch relative to union solicitation there existed no rule,
oral or written , which specifically barred union solicitation on company time and
property . While a check list of subjects which were to be brought to the new
employee's attention was furnished to the Respondent 's supervisors for guidance in
indoctrinating a new employee , the check list made no reference to a solicitation
rule. The Respondent claimed there had been a long standing viva-voce rule 6 "that
prohibits employees from engaging in any activities that interferes with work." '
Supervisor Skipworth equated the rule with the prohibition against "goofing off" a
which he defined as an employee 's "leaving [his ] work station and talking with
another employee ." Supervisor Burl Owens ' concept of the rule was that "[j]ust as
long as they [ the employees ] don't interfere with production . they can do any-
thing." Owens said there were no specific rules governing solicitation "so long as it
don't interfere with work production ." Owens summed it up by stating that "it's
a work interruption." 9
Sometime between February 27, 1965, and January 7, 1966, Robert Gooch
informed employee Richard Arrendono that he knew "what our rules were" and
warned him not to "sign people up for the union on company time." About the
same time Gooch warned employee Fleming that the Respondent was not "going to
allow" Fleming "to sign up people for the union on company time " and to be "inter-
ferring [sic ] with their work." Fleming was told that it "better not happen again,"
and Arrendondo was told that "if it happened again" the Respondent was "going
to fire him."
On January 7, 1966, President Gooch addressed the Respondent 's employees assem-
bled in a company time and property audience . He made reference to the rule with
these remarks , "The security of your job and your income depends on how good
and efficient a job we do processing hogs and cattle . . . and whether we can
manage sufficient margins to pay our bills and make a profit on our investment.
This is done by each of us doing our job. That is why we have had our long standing
rule that work time is for work. What you do at other times is your business."
(Emphasis supplied. ) Hence at the date of Fleming 's discharge , except as to
8 Robert Gooch was asked , ". . . to your knowledge has there ever been a discharge
other than Mr. Fleming 's discharge for the violation of this rule ?" Gooch answered, "If
you are terming the rule. . . . a no solicitation rule I would have to answer no. If you
are terming it our rules I would .say yes." Whereupon Gooch was asked what was "your
rule." Gooch responded , "Well, generally the rule is that when a person is supposed to be
working we ' re paying him to work and we expect him to be working and not doing any-
thing else , whether it be talking over the telephone or selling insurance or soliciting for
the union, or what have you."
4 Respondent ' s brief to the Trial Examiner , page 2.
8 Skipworth also referred to "goofing off" as "batting the breeze."
O Employee be Ramiro testified that he was aware of a rule "about not being able to do
anything to interfere with your work or the work of others when you were supposed to be
working ," but he did not know of a rule which provided " that while you're working you
cannot solicit , sell , or make any kind of collections." Employee David Garcia testified, "The
only rule I followed was just whenever I punched the clock I just go to work."
GOOCH PACKING COMPANY 5
Fleming and Arrendono , the Respondent had published no rule which specifically
limited union solicitation although the implication of President Gooch's remarks was
strong that this was what he was driving at . The so-called no-solicitation rule then
as it applied to the Respondent 's employees , except for Fleming and Arrendono, at
the time of Fleming's discharge prohibited employees from "goofing off" or doing
anything which interfered with production . There was no prohibition against union
solicitation before and after working hours and at break or lunch periods ; nor did
the Respondent penalize employees for discussing union or other subjects at their
work stations as long as it did not interfere with their work.'°
In respect to penalties imposed for the violation of the so-called no-solicitation rule
Supervisor Skipworth said that he was "a little broad minded" and did not tell the
employee that he would "have to let him go " if he didn 't "get back on his job" until
the second warning. Owens said he followed the policy of warning violators of the
rule twice before discharge was invoked , which policy he brought to the attention
of his new employees . Owens said he never warned an employee as long as his
"production stayed up." Robert Gooch testified that at the time of Fleming's dis-
charge he was "aware that as a general rule" Skipworth and Owens normally fol-
lowed the policy of warning an employee twice before he was discharged ." Gooch
said that the purpose of the warning was to "[t]ry to make a good employee out of
them ." According to Gooch it was not the Respondent 's purpose to fire employees
because "[i]f you have to fire people you have to hire somebody else and start all
over again."
From the foregoing it is clear that the Respondent was not a harsh employer but,
on the contrary, in the administration of the rule went along with the employee as
long as production was not adversely affected.
Moreover, employee solicitations were permitted for the United Fund ,12 flower
and employee collections , 13 supervisory gifts, and voter registration ; 14 however, the
Respondent denied that such solicitations occurred on company time. Nevertheless,
the credited testimony establishes that employees openly were solicited on company
time during working hours and that the Respondent was aware of the solicitations 15
and that they were in part conducted on company time. Uncontradicted testimony
further discloses that although the Respondent had a rule against employees' use
of the telephone except for emergencies during working time, employees neverthe-
less were repeatedly called to the telephone to take calls during working time. The
Respondent's "broad minded policy" toward its employees buttresses a conclusion
that the foregoing privileges were permitted and that the so-called no-solicitation
rule above discussed was not invoked unless production was impaired . This rule,
even if it were as expressed to Fleming and Arrendono , is not an illegal no-
solicitation rule on its face. Similar rules have been approved by the Board. Pepsi
Cola Bottlers of Miami, Inc., 155 NLRB 527. Moreover , the Supreme Court has said,
10 Skipworth testified that Respondent 's employees "could talk about anything as long as
it didn't interfere with production" and that employees were permitted to carry on con-
versations "[ale long as work didn ' t stop."
11 The Respondent 's counsel asked Gooch why he did not warn Fleming twice. Gooch
explained :
Well , first of all I asked Charlie a number of times when I talked with him about the
circumstances and he refused to tell me.
He admitted the circumstances to begin with , and after he said that he had done the
circumstances I started to questioning him about it further and he refused to
say anything and I felt that I finally , after six or seven attempts I finally felt that
I didn ' t have any choice except to accept the testimony by Mauricia , and I only had that
to act on , and it seemed to me that Charlie was more interested in what kind of case he
could muster up at the Regional Board than he was his job.
In view of the manner in which the rule was normally administered , Gooch 's answer has
the aspects of a coverup for his true motive . The explanation lacks plausibility and
sincerity.
13 United Fund pledge cards were distributed by Supervisor Owens to employees who did
the soliciting . Fleming was one of the solicitors chosen, who did some solicitation on com-
pany time.
13 Collections were conducted by employees Joe Ramiro , Isadore Brossett, and Alonzo
Medina ( around the first of April).
14 According to Joe Ramiro, whose testimony is credited In this respect , Owens asked him
whether he had already signed a voter registration "slip" on company time and property.
is Fleming discussed Brossett's collection with Owens and David Garcia discussed
Ramiro's collection with Owens.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in N.L.R.B. v. United Steel Workers of America [Nutone Inc.], 357 U.S 357, 361,
"Employer rules prohibiting organizational solicitation are not in and of themselves
violative of the Act, for they may duly serve production, order and discipline."
However, such rules are valid provided they are "not promulgated or utilized in order
to prevent or impede the organization of [an employer's] employees." Avondale
Mills, 115 NLRB 840, 841; or otherwise stated, " . . management can prevent
employees from soliciting for a union during working hours, provided the ban is
imposed on a nondiscriminatory basis." Pepsi Cola Bottlers of Miami, Inc.,
supra, 529.
I am of the opinion that the Respondent invoked the so-called no-solicitation rule
as a device to defeat its employees' self-organizational efforts and thereby violated
Section 8(a)(1) of the Act. Avondale Mills, supra; Pepsi Cola Bottlers of Miami,
Inc., supra; Lou De Young's Market Basket, Inc., 159 NLRB 854. Of controlling
importance in reaching this conclusion are the following factors. (1) Upon the
advent of the union organizational campaign the so-called no-solicitation rule which
had for its purpose the banning of interference with production was made applicable
to the banning of union solicitations even though the reported union solicitations did
not violate the rule.16 (2) The Respondent did not generally publicize the so-called
no-solicitation rule but singled out two employees, who, it was informed, had engaged
in union solicitation and warned them against a repetition of the reported offenses
upon threat of discharge, the natural and foreseeable consequence of which was the
curtailment of their protected union activities. (3) The Respondent clearly aimed the
so-called no-solicitation rule solely against union activity in that it was for the first
time published to the Respondent's employees, as a group, in the context of a speech
by the Respondent's president delivered on company time and property and devoted
to antiunion propaganda. Cf. Revere Camera Co. v. N.L.R.B., 304 F 2d 162 (C A
7). (4) The penalties for breaches of the no-solicitation rule became more severe
particularly in connection with union solicitations after union organizational activity
commenced. (5) Prior to the advent of the Union a breach of the so-called no-
16 Employee Arrendono's warning followed a report to Robert Gooch That Arrendono
was bothering an employee and "had been trying, pressuring him continually to try to get
him to sign a pledge card for the union " The incident occurred while Arrendono was
"working on the kill floor" during "working time " Arrendono had also been "pestering"
the employee "at break time." The employee who reported the incident, according to Gooch,
"broke into tears" and "wanted to know if there was something that could be done about
it." Arrendono's warning to refrain from signing "people up for the union on company
time" followed with the statement that the Respondent did not have "to warn him because
he knew what our rules were " There is no evidence that Arrendono's activities inter-
fered with production or occurred away from his work station with the exception of his
breaktime. Since the so-called no-solicitation rule permitted talking between employees
at their work stations if it did not interfere with production, it is clear that had the
Union not been involved there would have been no warning Moreover, it is significant
that there is no evidence disclosing that Arrendono's supervisor reported any interfer-
ence with production on the part of Arrendono.
Fleming's warning resulted from a report given to Robert Gooch by Assistant Supervisor-
Lloyd Head. Head worked in the Respondent's night loading department. Head punched
in at 4: 07 p.m although his shift commenced at 5 p m Employees John Soto, Valentine
Alverez, Ed Diaz, Louis Flores, and Louis Ortiz, who were assigned to the night crew,
punched in at 4:0'8, 4: 20, 4. 44, 4: 58, and 4: 58 p.m., respectively. Fleming punched
out at 4 •58 p.m Head and Soto went to the beef cooler where Head was teaching Soto
to break beef At "about five or ten minutes until 5 : 00" J. Campbell told Head to get
Louis Flores and Ortiz. About 15 minutes previously Soto had left for the locker room
Shortly after 5 p in Campbell inquired where the "boys" were and Head said he "guessed"
they were still in the locker room. Campbell told Head to tell them "it was time to go to
work."
When Head arrived the five night crewmen above mentioned were talking to Fleming
Head did not hear their conversation Fleming handed a union "pledge" card to Head and
each of the five night crewmen Fleming remarked that they "could sign these cards and
put them in the locker." Head told Fleming he would think about it, whereupon lie deliv-
ered Campbell' s message and left. Gooch, after he heard Head's report, did not warn the
five men, who were engaging in a discussion on company time, either that the discussion,
interfered with their work or constituted a violation of the Respondent's rules Unlike his
coconversationalists, Fleming was on his own time. Hence it appears that had it not been
for the subject under discussion and Fleming' s leading role in the Union the incident
would have passed unnoticed and Fleming would not have been warned.
GOOCH PACKING COMPANY 7
solicitation rule was limited to interference with production; thereafter, "talking
union" became a breach even though it did not constitute an interference with pro-
duction.17 (6) At the time the so-called no-solicitation rule was invoked there was
no evidence of the impairment of production by union solicitation. (7) The
Respondent did not place equal restraints upon other solicitation activity.18 (8) By
selecting Fleming and Arrendono, known union adherents, in the context of union
organizing, and identifying the thrust of its admonition as union, activities, the Re-
spondent made explicit its antiunion purpose rather than a purpose to protect the
proper use of working time.19
Second: Prior to his discharge Fleming was considered by the Respondent to have
been a satisfactory employee. He had been in the employment of the Respondent
since 1958. According to his supervisor, Burl Owens, Fleming had failed to main-
tain adequate production only on one occasion which occurred during the last presi-
dential campaign when Fleming was prone to talk politics. Owens admonished
Fleming and he thereafter did not allow his political discussions to interfere with
his work.20 Fleming's job was located in the sausage kitchen where he operated
and tended a sausage mixer. His job sometimes carried him outside the sausage
kitchen in order to obtain salt and other ingredients for sausage and ground meat
products.
Gooch testified that "[m]ost of [the] spring [he] was aware that [Fleming] was
one of the leaders in the Union's attempt to organize." Fleming solicited 18 union
authorizations, attended all union meetings, and served upon the five-man union
organizing committee The warning which he was given by Robert Gooch in Jan-
uary 1966 was the outgrowth of union solicitations on December 27, 1965. His
union activities continued after the warning. In fact he was one of the two remaining
members of the union committee and the most active.
On March 3, 1966, President Gooch addressed the employees in a second com-
pany time and property audience. Among other things Gooch said:
I understand that some unions are trying to get some organizational drives
started in this state. I think that there are some things that all of you should
think about and think about it seriously, so if the occasion ever arises you will
have some facts at your hand that can help you in reaching a conscientious
solution.
I want to make it plain that we do not want a union in this plant and we will
fight the union in every legal way possible. [Emphasis supplied.]
The next day, March 4, Fleming was discharged. That morning Robert Gooch
received a report that Fleming had been involved in a union solicitation concerning
Mauricia Pedroza on February 26, 1966. Gooch called Pedroza to his office and
after listening to her story telephoned the Respondent's counsel "because it con-
cerned a union matter to some extent." According to Gooch, his counsel advised
him to obtain a court reporter, to investigate thoroughly and "if it appeared after
investigation that the discharge was in order to apply one, rule, and this was if no
union was in the picture what would you do?" 21 At 1.55 p m. Pedroza was called
in Gooch's office before shorthand reporter Jeanie Letz, a notary public in and for
Taylor County, Texas. Only Gooch and the reporter were present.22 Pedroza
related that she punched out shortly after 1:20 p.m. on February 26, 1966, with
the intention of taking her child to the doctor. She said that she "met [Charlie
Fleming] on [her] way out and he saw [her] going out the door and he followed
17 At the time Gooch discharged Fleming he said, "We told you we didn't want you trying
to organize and talk up unvonssm when you were on the job . . . ." (Emphasis added )
1s See The Wm H. Block Company, 150 NLRB 341; in "M" System, Inc., Mobile Home
Div., 123 NLRB 1281, 1288, it is stated,
Even where there is a proper no-solicitation rule, an employer may not apply such
rule disparately by barring union solicitation while permitting or condoning solicita-
tion for other purposes ; and a discharge for union solicitation in such circumstances
is illegal.
19 See Lou De Young's Market Basket, Inc., supra.
"Both Owens and Fleming were supporting Goldwater for president.
91 Respondent's counsel elaborated on this point by stating, "If no union were there if
you would have fired this person fire him. If no union were there you would not have fired
this person, then don't fire him."
22 The stenographic report was admitted without objection. The report was in question
and-answer form with Gooch framing the questions.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[her]." As she was "turning" toward her car which was near the back dock Fleming
"hollered." He asked her for her "street number and house number." Pedroza
related:
I told him way out by Impact, and he said well, I will write it down and
I said what for. I asked him and he didn't want to tell me. I tried to make
him tell me. He said, Oh, it was nothing and he turned. He said, well, it is
something about the Union, about the Union .... He said they are going to
come-they haven't come until now.
Upon further questioning Pedroza said that she had mentioned the incident that
morning "in the dressing room downstairs" at which time she said, "I don't know
what that Union is about. I am not going to sign no papers if they come to my
house"; followed then these questions and answers which concluded the questioning:
Q. You don't like them bothering you?
A. I don't.
Q. You told them to stop bothering you?
A. Yes.
Q. We will try to see that they not bother you as much as we can.23 [Emphasis
supplied.]
After excusing Pedroza, Gooch summoned employees Deola Henry and Lottie
Fletcher who, according to the stenographic transcript, appeared for questioning at
2:05 p.m. Gooch played a "tape" of the questions asked Pedroza and her answers.
Both employees acknowledged that Pedroza had made the same remarks in the dress-
ing room. The questioning ended with Gooch's remark, "All right. Well that is all
we need."
According to the stenographic transcript, Fleming appeared in Gooch's office at
2:20 p.m. for questioning. Gooch opened the questioning by stating:
Charlie, do you remember a week or so ago, whenever we called you in and
Burl Owens was here, and we told you that we didn't want you trying to orga-
nize and talk up Unionism when you were on the job, and that if you were
working on the job we wanted you to be working on the job. What you did on
your own time was your own business; what you did on the lunch or break was
your business; but, when you were supposed to be working we wanted you to be
working, and not involved in this union activity.
Fleming acknowledged the warning whereupon Gooch said:
We have a report here from Mauricia Pedroza that a week ago from last Mon-
day, she, about 1:20, she had to take her little boy or daughter, she had to take
her child to the doctor. And she tells us that she came through your depart-
ment and you stopped her. In fact, followed her on outside and got her name
and her address to try to get someone to talk to her from the Union, and she
asked if this was Union business and you said it was. Did this actually happen?
Fleming answered in the affirmative and said, "I asked her for her address." Gooch
then asked, "And she also asked you what it was for and you said that ..
Fleming interrupted, "Well, sir, I believe I better not answer these questions. I don't
know, you know, how much you are going to get me involved here, Robert. I mean,
you are fixing to let me go, Robert." Thereafter, Fleming became reluctant to answer
questions. Gooch persisted. At one point Fleming said:
Well, I mean, I don't have any legal counsel or anything like that, I'm just a
working man. I don't know my rights as that goes. I mean, I need-I might
answer something and be in big trouble or something.
After having heard the questions and his answers up to this point read back to him
Fleming commented:
I mean, if I answer their questions, and you got it down here on record, and I
go up before the Regional Board, or something, you have got me, my throat
cut right quick. I mean, I don't have no defense whatever, this way.
za Gooch's intent to employ Fleming's discharge as a means of discouraging union ac-
tivities and thereby "try to see that they, [the Union] not bother" employees is implicit
in the representations made to Pedroza at the close of her questioning by Gooch. More-
over Gooch's intentions are more apparent in that he indicated to Pedroza when she re-
turned for questioning on the second occasion that he had discharged Fleming. Pedroza's
uncontradicted testimony was that she "learned" of Fleming's discharge the second time
she appeared for questioning. Hence, it would appear that Gooch's questioning of Pedroza
was to feign an appearance of validity.
GOOCH PACKING COMPANY 9
Gooch again reminded Fleming of the warning to which Fleming replied:
Well, I mean, you ask a person their address when you are walking out the door
with them to get something, are you wasting company's time? [Emphasis
supplied.]
Gooch responded, "If you are gathering this information for a Union." 24 Fleming
asked, "You are doing wrong, then?" Gooch answered, "Then, this is the thing we
warned you about . . . ... Gooch also commented:
you were bothering Mauricia, or she wouldn't have come to us complain-
ing about it.25 We asked her if she didn't appreciate it, and she didn't appreciate
it. Now, if you had done this on your own time, this is a different matter, Charlie.
I don't think we have got any choice here; if you want to say that you didn't do
these things, then, the only thing we can assume is that you must have, because
Mauricia said you did and you won't say you didn't and the only thing we can
assume is that you did this and this being the case and we have warned you
about this thing and really out of our way to warn you, the only thing we can
do is let you go ... .
Gooch also said to Fleming:
I hate to do it as bad as anything I have ever done in my life, but we don't have
any choice .... I don't think that we have got any choice in this thing, like
I say. These circumstances. If we tell people we're going to do something and
if we don't do it, we don't have any choice, at all 26 [Emphasis supplied.]
This concluded Gooch's entire investigation of the incident.
The record supports the conclusion that the meeting between Fleming and Pedroza
was coincidental and that Fleming was away from his sausage mixer, as he told
Gooch, "to get something." Moreover there is no evidence that he knew in advance
that Pedroza would be leaving the plant to take a sick child to the doctor. As indicated
by Fleming's statements to Gooch there is considerable doubt whether Fleming
thought his activity had violated the warning.
Gooch testified that his motivation for the discharge of Fleming was not his "lack
of cooperation" during the questioning, but the discharge was based wholly upon
the information received from Pedroza ". . [i]n connection with the prior
warning." 27
There is not a shred of evidence that the incident involving Pedroza and Fleming
caused a diminution of Fleming's production for that day. In fact, the incident would
have been pretermitted except for the report to Robert Gooch.
zs It is clear from Gooch's remark that Fleming's offense was not soliciting the address
but soliciting the address for the Union.
25 Mauricia Pedroza was summoned to Gooch's office.
as These remarks take on added significance in that Gooch testified that the purpose of
a warning was to "[t]ry to make good employees" and not to fire them.
" Gooch was asked whether Fleming would have been discharged had he been on his way
to get salt and had asked the name and address of an employee, but did not state the
purpose for it. Gooch answered, "No, sir." Gooch was further asked whether Fleming
would have been discharged had Fleming asked the employee for her name and address
and upon her request told her it was for an insurance company who would give a com-
mission for the reference. Gooch answered, "If he was getting the salt this would be no
violation, but if he stopped his work and carried on a several-minute conversation in try-
ing to sell her some insurance, then I would say, yes, sir." Gooch's counsel asked Gooch
"if Charlie Fleming had told you he was back there . . . getting salt at the time this
occurred . . . and there was no way that you could have resolved who was telling the
true story, would you have fired Charlie Fleming?" Gooch answered, "No, Sir."
As noted above at the time of his discharge Fleming indicated that he was "walking out
the door [with Pedroza] to get something." Gooch rejected such explanation in that while
so engaged Fleming was "gathering this information for a Union." Gooch's answers above
imply that had he known the true facts he would not have discharged Fleming. If this
were true, Fleming's reinstatement should be ordered under the teachings of N.L.R.B. v.
Burnup & Sims, 379 U.S. 21, to the effect that an employer's honest belief is no defense
if it affirmatively appears that the employees' misconduct while engaged in activity pro-
tected under Section 7 of the Act did not occur. See also J. H. Rutter-Rem Manufacturing
Compan4j, Inc., 158 NLRB 1414.
The Respondent conceded in its brief to me, page 8, "If Fleming had explained to him
what be had testified to at the hearing he would not have been fired."
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that the so-called no-solicitation rule was promulgated and
invoked for a discriminatory purpose and is invalid, it follows that the discharge
pursuant to such rule is a violation of Section 8(a)(3) and (1) of the Act. Avondale
Mills, 115 NLRB 840, 843; Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527; Lou
De Young's Market Basket, Inc., 159 NLRB 854; Republic Aviation Corporation
v. N.L.R.B., 324 U.S. 793, 805.
In that "[t]he interrogation of an employee concerning his or other employees'
compliance with a no-solicitation rule which has been discriminatorily promulgated
and enforced constitutes an extension of the rule's illegal purpose and, beyond that.
serves to add to the coercive impact of the unlawful rule by emphasizing the strict en-
forcement intended to be given it," it follows that Robert Gooch's interrogations of
employees Arrendono, Fleming, Pedroza, Henry, and Fletcher and his admonitions
and threats to employees Arrendono and Fleming were violations of Section
8(a)(1) of the Act. Pepsi-Cola Bottlers of Miami, Inc., supra. See also Revere Camera
Company v. N.L.R.B., 304 F.2d 162, 165 (C.A. 7).
Even though the so-called no-solicitation rule had not been discriminatorily pro-
mulgated and enforced, the discharge of Fleming was discriminatory and was in
violation of Section 8(a)(3) of the Act in that Fleming's alleged violation of the
rule served as a pretext since the "real motive" 28 of the Respondent in discharging
Fleming was to "discourage membership" in the Union and to interfere with em-
ployees' "right to self-organization" and "to form, or assist labor organizations."
There is little question that had there been no so-called no-solicitation rule the
alleged misconduct for which Fleming was discharged would have been protected
activity under Section 7 of the Act. Moreover, it seems apparent from the testimony
of Gooch that had Fleming committed the same offense in connection with a
different subject he would not have been discharged. Moreover, he was discharged
upon the second claimed offense whereas others who committed similar offenses,
but unrelated to union activities, were not discharged until after a second warning.
This disparate treatment of Fleming accentuates the Respondent's discriminatory
motivations. Furthermore, the alleged offense was of a de minimis character and was
clearly seized upon by the Respondent to rid the employer's establishment of a strong
union advocate as well as to drive home to its employees the consequences of the
slightest infraction of its so-called no-solicitation rule. The Respondent was prompted
to discharge Fleming not because his alleged violation of the rule interfered with
plant production or efficiency, but because it did not want the Union "bothering"
employees either at its plant or at their homes. Such conclusion is implicit in Gooch's
remarks to Pedroza, "We will try to see that they [the Union] not bother as much
as we can." 29 All these things, as well as a consideration of the entire record, convince
me that it was Fleming's adherence to the Union and his activities on its behalf,
rather than his disregard of the warning, which motivated the Respondent to dis-
charge Fleming. Indeed, Gooch's anomalous action in discharging Fleming flies in
the teeth of his own persuasions that a purpose of management is to "[t]ry to make
a good employee" and not to "fire people." For such a trivial incident, a reasonable
application of this doctrine would have resulted in the retention of Fleming. No
doubt Vice President Robert Gooch was applying the Respondent's new doctrine
tailored for its antiunion campaign as promulgated by President Gooch in his speech
the day before Fleming's discharge, to wit:
I want to make it plain that we do not want a union in this plant and we will
fight the union in every legal way possible.
Thus, apart from the question of the validity of the so-called no-solicitation rule, I
am convinced and find that the Respondent discriminated against Fleming in viola-
tion of Section 8(a)(3) of the Act. Avondale Mills, supra; N.L.R.B. v. Avondale
Mills, 242 F.2d 669, 671.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth in section I, above, have a close, intimate, and
29"... the `real motive' of the employer in an alleged § 8(a) (3) violation is decisive."
N.L.R.B v. Brown Food Store, 380 U.S. 278, 287.
29 Fleming had sought Pedroza's address in anticipation of a visit to her home by a union
representative
GOOCH PACKING COMPANY 11
substantial relation to trade , traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor prac-
tices, it is recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully discharged Charlie Fleming
on March 4 , 1966, and thereby violated Section 8(a)(3) and ( 1) of the Act, it is
recommended that Respondent remedy such unlawful conduct. It is recommended in
accordance with Board policy 30 that the Respondent offer Charlie Fleming imme-
diate and full reinstatement to his former or a substantially equivalent position and
without prejudice to his seniority or other rights and privileges , and make him whole
for any loss of earnings he may have suffered as a result of the discrimination against
him, by payment to him of a sum of money equal to the amount he would have
earned from the date of his discriminatory discharge to the date of an offer of rein-
statement , less net earnings during said periods to be computed on a quarterly basis
in the manner established by the Board in F. W . Woolworth Company, 90 NLRB,
289, and shall include interest at the rate of 6 percent per annum , to be computed
in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to
be exercised herein
3. By unlawfully discharging Charlie Fleming on March 4 , 1966, the Respondent
engaged in unfair labor practices within the meaning of Section 8 ( a)(1) and (3)
of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
their rights guaranteed them by Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8 ( a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case , it is recommended that Respondent , its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in United Packinghouse , Food and Allied Workers,
AFL-CIO, or in any other labor organization , by discriminatorily discharging any of
its employees or discriminating in any other manner in respect to their hire or tenure
of employment, or any term or condition of employment.
(b) Interrogating and threatening employees in connection with protected, con-
certed activities , and promulgating rules against union solicitation on company time
while permitting other types of solicitation on company time.
(c) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of
the Act:
(a) Offer Charlie Fleming immediate and full reinstatement to his former or sub-
stantially equivalent position , without prejudice to his seniority and other rights and
privileges , and make him whole for any loss of pay, together with interest thereon at
6 percent per annum , in accordance with F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716; and notify him , if he is
presently serving in the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended , after discharge from the
Armed Forces.
(b) Preserve and, upon request , make available to the Board and its agents, for
examination and copying , all payroll records , social security records, timecards, per-
30 See The Rushton Company, 158 NLRB 1730, footnote 2
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonnel records and reports, and all other records relevant and necessary to determina-
tion of backpay due and to the reinstatement and related rights provided under the
terms of this Recommended Order.
(c) Post at its Abilene, Texas, establishment, copies of the attached notice marked
"Appendix." 31 Copies of said notice to be furnished by the Regional Director for
Region 16, after being duly signed by Respondent's representative, shall be posted by it
immediately upon receipt thereof and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in writing, within 20 days from
the date of this Recommended Order, what steps Respondent has taken to comply
herewith.32
It is recommended that the amended complaint be dismissed insofar as it alleges
violations of the Act other than those found in this Decision.
31 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
321n the event that this Recommended Order is adopted by the Board, this provision.
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
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 interrogate or threaten employees in connection with protected,
concerted activities, or promulgate rules against union solicitation on company
time while permitting other types of solicitation on company time.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist United Packinghouse, Food and Allied Workers,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer to Charlie Fleming immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss suffered as a result
of the discrimination against him.
All our employees are free to become or remain or to refrain from becoming or
remaining members in good standing of United Packinghouse, Food and Allied'
Workers, AFL-CIO.
GOOCH PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele-
phone 334-2941.