Paso del Norte Oil Co. of Eagle Pass

National Labor Relations Board - Board Decisions

Nov 7, 1968

173 N.L.R.B. 635 (N.L.R.B. 1968)

C. V. URANGA 635
C. V. Uranga d/b/a Paso del Norte Oil Company of
Eagle Pass and Jesus V . Garcia . Case 23-CA-2903
November 7, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On May 31, 1968, Trial Examiner Alvin Lieberman
issued his Decision in this 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 and
the General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no prejudicial
error was committed.' The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
after subparagraph (b):
(c) Discouraging membership in any labor organi-
zation by threatening to close its business or by
intimating through other words or conduct of similar
import that it will discontinue its business upon a
union's organization of its employees.
2. Renumber the present paragraphs 1(c) and 1(d)
as 1(d) and 1(e), respectively.
3. Insert after the second indented paragraph of
the notice attached to the Trial Examiner's Decision
the following:
WE WILL NOT do anything to make you think
that we will close our business if you should decide
to organize, form, join, or assist any union for the
- purpose of bargaining collectively through any
union or representative of your choice as to wages,
hours of work, and any other terms or conditions
of employment.
"would close his business " if the employees "were not satisfied [and]
happy." This utterance coupled with the Respondent 's further assertion
that "he had enough money to sustain himself, and that we [the
employees ] would be out of work" warrants a finding of violation of
Section 8(a)(1) because the tendency of such statements may
reasonably be expected to have interfered with the free exercise of
employee rights under the Act whether or not the employees actually
felt intimidated by such remarks . Joy Silk Mills v. N.L.R.B., 185 F.2d
732 (C.A. D.C.), cert . denied 341 U.S. 914.
TRIAL EXAMINER 'S DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent, C. V.
Uranga d/b/a Paso Del Norte Oil Company of Eagle
Pass, Eagle Pass, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified:
1. Amend paragraph 1 by inserting the following
Or. Respondent 's Motion to Dismiss the Trial Examiner ruled that
if it were established that witnesses called by the General Counsel were
coerced by appealing to their sympathy for Garcia and Garza, the
credibility and weight ascribed to such witnesses and their testimony,
respectively , would be affected accordingly. In this regard the Trial
Examiner determined that no finding based on the testimony of Uvaldo
Chacon should be made. We agree with the Trial Examiner that the
unfair labor practices found herein are established without considering
the testimony of Chacon. However, after a careful review of the entire
record of this case , we do not believe it has been established or that it
could be inferred that Chacon or any other witness was "coerced" by
the General Counsel 's representative during the pretrial investigation.
2We find merit in the General Counsel 's exceptions to the Trial
Examiner 's failure to find an independent violation of Section 8(a)(1)
with regard to the Respondent 's remarks delivered to a majority of the
employees in December 1967, in which the Respondent stated that he
Statement of the Case
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties except the Charging Party
represented, was held before me in Eagle Pass, Texas, on
February 27, 28, 29, and March 1, 1968, upon a complaint of
the General Counsel' and respondent's answer.2 In general,
the issues litigated were whether, as the complaint alleges,3
respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein called the Act).
Particularly, the questions for decision are as follows:
1. Did respondent engage in independent violations of
Section 8(a)(1) of the Act by coercively interrogating and
'The complaint was issued on a charge filed on December 6, 1967,
by Jesus V. Garcia.
2During the trial the complaint was amended to set forth
respondent's name as it appears in the caption . The complaint was
further amended by substituting the date "October 2, 1967" for the
date "October 6, 1967" in paragraph 7(k). Upon the amendment of the
complaint paragraphs 2, 3, 4, 5, 6, and 8 of the answer were amended to
admit the correspondingly numbered paragraphs of the amended
com3plaint.
Inasmuch as a careful examination of the record reveals that no
evidence was introduced by the General Counsel to support the
allegations of paragraphs 7(a), (b), (c), (h), (I), (m), and (n) of the
complaint , those paragraphs as well as the related portion of paragraph
10 of the complaint are now dismissed . Accordingly, subsequent
references to the complaint appearing in this Decision will be without
regard to these allegations.
173 NLRB No. 99
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening employees; by creating the impression that their
efforts to obtain representation by a labor organization were
under surveillance; by seeking information from employees
concerning their having spoken to agents of the National Labor
Relations Board (herein called the Board); and by encouraging
employees not to cooperate with agents of the Board9
2. Did respondent violate Section 8(a)(3) and (1) of the
Act by discharging two employees, Jesus V. Garcia and
Ricardo Garza?
Upon the entire record,' upon my observation of the
witnesses and their demeanor while testifying,5 and upon
careful consideration of the arguments made and the brief
submitted by the General Counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Texas corporation whose principal office and
place of business is located at Eagle Pass, Texas, is engaged in
wholesale distribution of petroleum and related products,
including butane. During 1967,6 a representative period,
respondent sold products valued at more than $50,000 to
customers located outside the State of Texas. Accordingly, I
find that respondent is engaged in commerce within the
meaning of the Act and that the assertion of jurisdiction over
this matter by the Board is warranted. Siemons Mailing
Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, AFL-CIO
(herein called the Union), is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with events which occurred
while employees of respondent were looking for a labor
organization to represent them in their dealings with respon-
dent. Among these, the complaint alleges, was respondent's
interrogation of, and threats to, employees, its solicitation of
employees to refram from speaking to agents of the Board; its
creation of the impression among employees that their
organizational efforts were being monitored; and its discharge
of two employees, Jesus V. Garcia and Ricardo Garza.
The General Counsel contends that the discharges contra-
vened Section 8(a)(3) of the Act and that respondent's other
conduct was independently violative of Section 8(a)(1).7 For
its part, respondent denies that it engaged in the independent
violations of Section 8(a)(1) set forth in the complaint.
Concerning its alleged infringement of Section 8(a)(3),
respondent's position is that Garcia and Garza were dismissed
for cause.8
B. Preliminary Facts
1. The investigation
At the outset of the trial respondent moved to dismiss the
complaint9 on the ground, among others, that Frank Herrera,
Jr., one of the lawyers representing the Government'in this
proceeding, "engaged in improper activities during the course
of the investigation, prior to the issuance of the complaint in
this matter." Supporting this branch of its motion respondent
alleged that Herrera "attempted to persuade prospective
prosecuting witnesses to testify against the Respondent by
suggesting to them that by so doing, they would enable or help
[Garcia and Garza] the two (2) complaining witnesses to get
their jobs back."
Respondent's motion to dismiss the complaint was denied.
In ruling on the motion, however, I stated that if it were
established that "witnesses called by the General Counsel were
coerced . by appealing to their sympathy for Garcia and
Garza ... that fact will certainly affect the weight of their
testimony and even their credibility." See, in this connection,
N.L.R.B. v. Capitol Fish Company, 294 F.2d 868, 871 (C.A.
5).
Three witnesses who appeared in-this matter testified that
when they were interviewed by Herrera while the charge in this
case was under investigation he did, in fact, appeal to their
sympathy for Garcia and Garza. Of these, only one, Uvaldo
Chacon, gave evidence concerning the events with which this
case is concerned. In accordance with the statement made in
connection with my ruling on respondent's motion to dismiss
the complaint concerning the credibility of, and the weight to
be ascribed to testimony given by, a witness to whom
sympathetic appeals were made I will base no finding on
Chacon's evidence.
2. Respondent's business
Respondent buys and sells petroleum and butane in bulk.
Respondent does business on the basis of contracts with
4Issued simultaneously is a separate order correcting the steno-
grapshic transcript of this proceeding in several respects.
Many of the witnesses who appeared in this proceeding were fluent
in Spanish , but not in English . Accordingly, the questions put to them
were translated from English into Spanish and their answers given in
Spanish were translated into English by A. Rene Barientos , District
Clerk of Maverick County, Texas, who was duly sworn to serve as
interpreter at the trial. The demeanor of the witnesses who testified in
this manner has not been taken into account in determining their
credibility.
6Unless otherwise noted all dates subsequently referred to in this
Decision fall within 1967.
7In pertinent part these sections provide:
Sec. 3 . (a) It shall be an unfair labor practice for an employer-
(1) to interfere with , restrain , or coerce employees in the
exercise of the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment
... to encourage or discourage membership in any labor organiza-
tion....
Section 7, insofar as relevant, provides as follows:
Sec. 7. Employees shall have the right to self-organization, to
form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or
gther mutual aid or protection ....
Respondent having waived oral argument at the conclusion of the
trial and not having submitted a brief, its stand on the issues in this case
is gleaned from its opening statement ; the various grounds on which it
based its motions to dismiss the complaint , which were denied, its
answer ; and the evidence which it adduced.
9This motion has been incorporated into the record of this case.
C V. URANGA
customers providing for the delivery of specified quantities of
the product concerned each month. These agreements,
apparently, have no fixed term, are frequently canceled by the
customer, and, with equal frequency, are replaced by new
contracts.
Respondent makes deliveries to its customers by railroad,
the products being transported in tank cars. Respondent sends
its own trucks to refineries to collect the petroleum it sells.
These trucks normally arrive at respondent's plant in the early
afternoon. The petroleum which they bring from the refineries
is then transferred to the tank cars which are picked up
between 7:30 and 8 p.m.
Notwithstanding the necessity for the trucks to return to
respondent's plant early enough to permit the railroad cars to
be loaded before their scheduled pickup time, for a period of
several weeks, including almost the entire month of Septem-
ber, the trucks arrived 2 to 3 hours beyond their normal time.
This was the cause of concern to Charles V. Uranga,
respondent's president, not only because it delayed the loading
of the tank cars, but also because the employees who loaded
the cars were complaining about working late to complete the
transfer of petroleum from the trucks to the cars.
Respondent's drivers are authorized, while on their routes,
to purchase fuel for their trucks and to have tires repaired as
the necessity arises. They are required, however, to obtain bills
from the suppliers of these goods and services, which, in
normal course, are deposited in respondent's office.
3. Respondent's hiring of Guerrero and Guajardo
As will be more fully set forth below, Jesus V. Garcia and
Ricardo Garza, who were employed by respondent as drivers,
were discharged on September 25 and 26, respectively.) o
About a week before these discharges respondent hired Mike
Guerrero to work as a driver. Some 3 weeks after the
termination of the employment of Garcia and Garza another
driver, Hector Guajardo, was hired.' i
4. The efforts of respondent's employees to obtain
representation
Starting in August and continuing until about the end of
September respondent's drivers discussed, among themselves,
the advisability of being represented by a labor organization
and some agreed that such a course would be desirable. Most
of the talking, in this regard, was done by Ricardo Garza and
Jesus V. Garcia.
To implement the efforts of the drivers to obtain
representation Garcia, in mid-August, conferred with Henry de
la Garza, a representative of the Union. At this meeting, as
Garcia testified, he was informed that the Union could not
represent the drivers, "but that [de la Garza] would get
another union to which [the drivers] could belong, and [de la
Garza] would try to get somebody that would help [the
10The discharge of these employees is alleged in the complaint as
haviliiA been violative of Section 8(a)(3) of the Act.
My findings as to the hiring of Guerrero and Guajardo are based
on the testimony of Jose Yerba, one of respondent 's drivers, and
Uranga, respectively . Uranga's testimony concerning the time Guerrero
began to work for respondent cannot serve as the basis for a finding
637
dnversl ."
In addition to this advice de la Garza gave Garcia two copies
of a pamphlet issued by the Union purporting to set forth
rights of employees protected by the Act.12 One of these
Garcia kept. The other he gave to Garza, his fellow driver.
At another conference with de la Garza, the Union's
representative, about a week before Garcia's discharge, Garcia
received about 12 more copies of this pamphlet. These he
distributed among respondent's drivers. However, this was not
done in the usual manner; i.e., Garcia did not station himself in
a conspicuous place and openly pass out the pamphlets. On the
contrary, they were dispensed rather covertly. As Garcia put it
"one of them [he] gave [to an employee] right to his house
.... and dthers in the car, and another one [he] gave to a boy
that was ... making repairs [to an automobile] .... and the
others [he distributed] when we came from the trip ...
outside of the plant."
C. Facts Concerning Respondent's Alleged Independent
Violations of Section 8(a)(1) of the Act
The complaint alleges, and the answer denies, that
respondent independently violated Section 8(a)(1) of the Act
by interrogating employees concerning their efforts to obtain
representation, by telling an employee that it was aware of the
identity of the persons who were distributing pamphlets issued
by the Union, by threatening employees, by seeking informa-
tion from employees concerning their having spoken to agents
of the Board, and by encouraging employees not to cooperate
with such agents. Inasmuch as the evidence establishes a
relationship between a meeting held on December 17, which at
the request of respondent was attended by employees, and the
last three items set forth above they will be considered
together. The other two items will be taken up individually.
1. The alleged interrogation
Notwithstanding its denials, I find that respondent interro-
gated employees in the manner set forth in the complaint. I
further find that the employees questioned were not informed
that their answers would not subject them to reprisals and
were not told that they could, with impunity, refrain from
answering.
The first instance of employee interrogation disclosed by
the record occurred on September 25. On that day, during a
conversation between Uranga, respondent's president, and
Francisco Chavez, one of its drivers, concerning the late arrival
of respondent's trucks,) 3 Uranga asked Chavez to identify the
employees "making the strike," whether he "was in the
strike," and to name the person who was distributing the
phamphlets14 issued by the Union. Chavez replied that he,
himself, was not involved in what Uranga termed the "strike";
that he did not know who was; and that he did not know who
because of its vacillating and contradictory nature.
12A copy of this pamphlet is in evidence as G.C. Exh 2.
13A discussion of this situation appears earlier in this Decision.
i4As already found, the pamphlets in question were received from
the Union's representative about a week earlier and had been distributed
by Jesus V. Garcia.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was distributing the pamphlets.' 5
On the following day, September 26, respondent discharged
Ricardo Garza.' 6 While receiving his final check from
Gonzales, respondent's dispatcher,' Garza asked Gonzales
whether there was a connection between his dismissal and "the
rumors of a union." Gonzales did not answer. Instead, he
asked Garza "who is the promoter of the union?" In reply
Garza named Garcia.
A week later Gonzales interrogated another driver, Amado
Ferez. On October 2, while Ferez was in Gonzales office on
routine business, Gonzales asked him whether he "was involved
in the union "
2. The alleged impression of surveillance
Not only did Gonzales, respondent's dispatcher, ask Ferez
about his relationship to the Union, as found above, but also
about the identity of the persons distributing the union
pamphlets With respect to the latter, after Ferez denied
knowing who the distributors were, Gonzales told Ferez
notwithstanding the covert manner in which the pamphlets
had been passed out, that "he [Gonzales] knew more or less
who was handing out the papers for the union ... that ...
Garcia and Garza were the ones that were handing out the
papers."' 8
3. The December 17 meeting
On December 16, Uranga learned that an agent of the Board
was interviewing some of respondent's employees. Apparently
surmising that these interviews had a relationship to the charge
in the instant case and after discussing the matter with
respondent's lawyer, Uranga decided to have a meeting with
respondent's drivers the next day, December 17. The meeting
was attended by a substantial number of drivers, some of
whom were directed to be present by Uranga and some by
Gonzales.
Ferez was among those who were notified of the meeting
by Gonzales, respondent's dispatcher. While doing this
Gonzales asked Ferez whether he had already talked to the
Board agent. Ferez told Gonzales that he had not done so.
At the meeting several matters were discussed. Among them
was the subject of the drivers being interviewed by the Board
agent. In this connection Uranga, respondent's president, first
inquired of the employees present as to their having "spoken
to this man." Uranga then went on to say that although they
could refuse to do so, under the law "they were free to go to
talk to this man"; that "he would not be opposed if [they]
would give frank testimony", and that he was not asking them
not to do so, nor was he establishing any prohibition
respecting either their speaking with, or giving a signed
statement to, the Board agent. In short, as one driver who
attended the meeting testified, Uranga told the employees that
the matter was their "thing, that it was up to [them and their]
judgment."' 9
Another matter mentioned by Uranga at the December 17
meeting was the possible discontinuance of respondent's
business. In this regard, as Morales testified, Uranga referred to
respondent's growth and the improvement of its equipment.
He then veered to the wages earned by the drivers, stating, in
this connection, that if they "were not satisfied, that if [they]
were not happy, he would close his business and [the
employees] would be out of work." While testifying on this
point Morales several times said that he did not know why
Uranga made this statement; that he did not understand it; and
that he did "not know what sense [Uranga] was trying to
make with that."
D. Contentions and Concluding Findings Concerning
Respondent 's Alleged Independent Violations of
Section 8(a)(1) of the Act
The complaint alleges, and the General Counsel contends,
that by interrogating employees concerning the Union and by
telling one of them that respondent knew who was responsible
for the distribution of the union pamphlets respondent
violated Section 8(a)(1) of the Act. Respondent has denied
these allegations. Respondent's denials, however, have been
1sMy findings as to this conversation are based on testimony given
by Chavez, who testified through the interpreter. Uranga admitted that
he spoke to Chavez about the late arrival of the trucks and that he asked
Chavez, in this regard, the Spanish equivalent of "Are you united as a
group to purposely come in late?" Uranga further testified that in
putting this question to Chavez he used the Spanish word "huelga."
Explaining his use of this word Uranga stated that " `United' in Spanish
has a word of 'union' [ and that) `union ' to [respondent 's employees]
would be 'huelga ' or along the same lines." For several reasons I cannot _
accept the gloss put upon the conversation by Uranga . First, he, himself,
stated that "huelga" means "strike." Second, in no Spanish-English
dictionary which I have consulted is the word "huelga" translated as
"united." On the other hand , all of them , as did Uranga , translate it as
"strike." See "Valezquez Spanish Dictionary "; "Mr. Kay's Modern
Spanish-English Dictionary ", Williams, "Spanish and American
Dictionary ." Finally, had the trucks ' delay been Uranga 's only concern
it is improbable that in a conversation on that subject he would have
asked Chavez for the identity of the pamphlets ' distributor . Although
Uranga denied asking Chavez this question his denial was general and
couched in the language of the complaint . As will appear, Jesus
Gonzales, respondent 's office manager and dispatcher , also used this
form in denying the conduct attributed to him by witnesses for the
General Counsel in testimony which , like Chavez ', was specific and
detailed. I do not find general denials such as these convincing in the
face of contrary specific and detailed testimony . Accordingly, I shall
give them no weight.
i6As already noted , this discharge and Garcia 's on the previous day
are alleged in the complaint as having been violative of Section 8(a)(3)
of the Act.
17 Respondent does not contest Gonzales ' supervisory status or its
responsibility for his conduct.
18 My findings as to Gonzales ' interrogation of Garza and Ferez and
his statements concerning the names of the pamphlet distributors are
based upon, and the quotations are taken from, testimony given by
Garza and Ferez. Gonzales' denials, in this regard , are given no weight
for the reasons set forth in footnote 15. Respecting denials, a matter
concerning Ferez must be noted. In a pretrial conference with
respondent 's lawyer, which was attended by Uranga, respondent's
president , Ferez denied that Gonzales had spoken to him about the
Union. At the trial Ferez explained that he was afraid that he would
have lost his job if he told respondent 's lawyer that Gonzales had, in
fact, interrogated him regarding the Union and had discussed with him
the distribution of the union pamphelts . Even though there may have
been no basis for the fear which Ferez felt, his explanation has the ring
of truth. Accordingly, I accept it and draw no adverse inference
concerning his credibility by reason of what transpired at the
conference in question.
19The quotations in the text are taken from, and my findings with
respect to this phase of the December 17 meeting are based upon a
synthesis of, the testimony given by Uranga and two drivers, Gustavo C.
Morales and Ferez.
C. V URANGA
overcome by the proof.
Concerning the interrogation allegations of the complaint,
the evidence shows that Uranga and Gonzales, respectively
respondent's president and dispatcher, made inquiries of
employees respecting their involvement and that of others in
the drivers' movement to obtain union representation, the
identity of the leader of the movement, and the identity of the
employees who had distributed union pamphlets. Inasmuch as
the employees questioned were not assured that they would
not suffer reprisal by answering and were not informed that
they could, with impunity, remain silent, I find that their
interrogation was coercive and, therefore, violative of Section
8(a)(1) of the Act. Cohen Bros. Fruit Company, 166 NLRB
No. 2.
I also find that respondent violated Section 8(a)(1) of the
Act by Gonzales' statement to Ferez, one of respondent's
drivers, that he knew that the union pamphlets had been
distributed by Garcia and Garza. In view of the covert manner
in which the pamphlets were passed out to employees,
Gonzales' remark concerning the identity of the distributors,
who were engaged in an activity protected by the Act,20
smacked of surveillance. That the evidence does not show that
respondent actually spied upon the employees who handed out
the pamphlets is not important. What is significant is that
Gonzales' comment "plainly created an impression of sur-
veillance [which] tended to restrain and interfere with
employees in the exercise of their rights guaranteed under the
Act." Mitchell Plastics, Incorporated, 159 NLRB 1574, 1576.
See also Edinburg Manufacturing Company, 164 NLRB No.
18, enfd. 394 F.2d 1 (C.A. 4, 1968).
The General Counsel contends that respondent engaged in
additional violations of Section 8(a)(1) of the Act by its
conduct at, and immediately preceding, the December 17
meeting. The specific acts complained of are interrogation of
employees by Uranga and Gonzales, respectively respondent's
president and dispatcher, as to their having spoken to an agent
of the Board; a threat by Uranga to discontinue respondent's
business should the Union be successful in organizing its
employees; and Uranga's solicitation of employees to refrain
from speaking to, or signing statements for, the Board's
representative.
Insofar as the last two allegations are concerned, they do
not appear to have been established by a preponderance of the
evidence, and I so find. Respecting the claimed threat,
although Uranga did say, as Morales, a driver employed by
respondent, testified, that he "would close his business" if the
employees "were not satisfied [and] happy" with their wages,
this statement, it seems to me, is too ambiguous to constitute a
threat that respondent would discontinue its business upon the
Union's organization of respondent's employees. The
ambiguity of Uranga's utterance, in this regard, is heightened, I
find, by the fact that neither the Union, nor the efforts of
respondent's employees to obtain representation was men-
tioned at the meeting. Cf. Hilton Hotels Corporation, 138
NLRB 135, 136, 140 (Tucker-Miller incidents). Finally, I note
that in the course of his testimony concerning Uranga's
statement here under discussion Morales remarked that he did
not understand it and that, in essence, it made no sense.
The General Counsel's contention that at the December 17
meeting Uranga urged employees not to speak with, or give
639
statements to, the Board's agent, likewise, lacks evidentiary
support. The proof not only does not establish this allegation,
but seems, instead, to establish the contrary. Thus, as I have
found, Uranga, in essence, told the employees who attended
the meeting that they were free to talk to the Board's
representative, that they were not being asked not to do so,
nor were they being prohibited from speaking with, or signing
statements for, the Board's agent; and that although they had
the right to refuse to do either this was a matter they had to
decide for themselves. This is a far cry from the complaint's
allegation that at the meeting Uranga "solicited the employees
to refrain from speaking to, or signing statements for, an agent
of the Board."
The remaining conduct complained of, insofar as this phase
of the case is concerned, relates to the interrogation of
employees by Uranga and Gonzales, respectively respondent's
president and dispatcher, concerning their having spoken to
the agent of the Board. I have found that such inquiries were
made by Uranga and Gonzales. However, the inherent
coerciveness of such inquiries was effectively neutralized and
dissipated by Uranga's subsequent unequivocal statements to
the employees regarding their freedom to speak to the Board's
representative without fear of reprisal. Cf. Livingston Shirt
Corporation, 107 NLRB 400, 402-403, and Marr Knitting,
Inc., 90 NLRB 479, 480.
In sum, I conclude that respondent committed unfair labor
practices within the meaning of Section 8(a)(1) of the Act by
coercively interrogating employees concerning their efforts at
obtaining representation by a labor organization, the extent of
their involvement in this movement, and their activities, and
those of other employees, in its support; and by creating an
impression that the activities of employees in furtherance of
this movement were under surveillance.
I further conclude, considering the record as a whole, that
the General Counsel has not sustained his burden of proving by
a preponderance of the evidence that respondent threatened to
discontinue its business should the Union be successful in
organizing its employees or that respondent solicited em-
ployees to refrain from speaking to, or signing statements for,
an agent of the Board. I conclude finally, respecting this
branch of the case, that respondent's interrogation of
employees concerning their having spoken with a Board agent
was, in the circumstances, not coercive. In view of the
conclusions set forth in this paragraph, I will recommend that
paragraphs 7(o), (p), (q), (r), and the relating portion of
paragraph 10 of the complaint be dismissed.
E. Facts Concerning Respondent's Alleged Violations of
Section 8(a)(3) of the Act
Jesus V. Garcia and Ricardo Garza were discharged by
respondent on September 25 and 26, respectively. The
complaint alleges that these discharges were violative of
Section 8(a)(3) of the Act.
Garcia and Garza had been employed by respondent as
drivers for substantial periods of time. Their activities in
support of the movement among respondent's drivers to obtain
representation by a labor organization have already been
discussed. Briefly summarizing my findings in this regard,
Garcia and Garza did most of the talking in favor of such a
20Stoddard- Quirk Manufacturing Co., 138 NLRB 615, 620.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
move. In addition, Garcia discussed this matter with Henry de
la Garza, an agent of the Union, on two occasions, the first in
mid-August and the second about a week before his discharge.
During their second meeting de la Garza gave Garcia pamphlets
published by the Union which Garcia promptly distributed
among respondent's drivers. It thus appears that Garcia and
Garza were the principal advocates of the representation
movement among respondent's employees and respondent
does not deny that it had knowledge of this.
On September 25, upon returning from a trip, Garcia was
informed that Uranga, respondent's president, wanted to talk
to him. Accordingly, Garcia went into Uranga's office. After a
discussion relating to the condition of Garcia's truck and
Garcia's satisfaction with his wages, Uranga told Garcia, as
Garcia testified, that "I [Uranga] have no use for you."21 At
the conclusion of their conversation Uranga gave Garcia two
checks, one representing his current earnings and the other
covering his accrued vacation pay.
On the day on which Garcia was discharged a notice was
posted on respondent's bulletin board directing Garza not to
"go out on a trip" the next day, September 26, but to "come
to the office." Upon doing so Garza was informed of his
discharge by Gonzales, respondent's dispatcher.
Garza asked Gonzales the reason for his dismissal. Not
receiving an answer, Garza asked Gonzales whether he was
being discharged "on account of the rumors of a Union."
Instead of replying Gonzales asked Garza "who is the
promoter of the union.." Naming Garcia, whose employment
had been terminated on the previous day,22 and still not
receiving an answer from Gonzales as to the reason for his
discharge, Garza requested permission to speak to Uranga,
respondent's president. Gonzales thought well of this proposal
and told Garza to "tell [Uranga] that [he is] not mixed up in
this and [Uranga] will probably give [him] a break .,121
Although Garza conferred with Uranga later that day
concerning the cause of his discharge, Garza did not have an
opportunity, because of Uranga's occupation with other
matters, to avail himself of the advice given him by Gonzales,
respondent's dispatcher. Concerning the discharge, however,
Uranga told Garza, as he had informed Garcia a day earlier,
that he did not "have any use for [him]." During the same
conversation24 Uranga also stated that he "thought that one
of [respondent's] contracts ... was going to expire 25 and that
he was going to have to ... lay off three drivers. ,26
Uranga, respondent's president, testified that Garcia and
Garza were not "fired ... because [he] found out that they
were behind [the] union movement," but mainly because of
their "tire padding on the road"27 and respondent's "loss of
business." Concerning the former, Uranga stated that "for this
four-month period there'28 the ... repair tickets [of Garza
and Garcia] on the tires were running between forty-eight and
21 This, apparently , is a literal translation by the interpreter of
Garcia's testimony , which was given in Spanish . Perhaps, more
idiomatically, it might have been translated as "I have no use for your
service."
22 1 have already found that Gonzales' interrogation of Garza
concerning "the promoter of the union" was violative of Section 8(a)(1)
of the Act.
23 Gonzales did not deny making this statement.
24My findings as to Garza 's discharge and the surrounding
circumstances , including his conversation with Gonzales and Uranga are
based upon , and the quotations are taken from, Garza's testimony.
25As found earlier respondent and its customers entered into
fifty percent of the rest of them"; that he "just kept watching
this"; and that "from these tire bills, [he] came to one
conclusion, what they were doing is padding the bills."
Respecting respondent's "loss of business," Uranga testified
that sometime before September 25 respondent was informed
that one of its contracts "was not to be renewed." Uranga
further testified that about the same time respondent "lost
another big account" and he "didn't know what state [his]
business was in."
Before leaving Uranga's testimony, two things are noted.
Respondent did not offer any documentary evidence in
connection with the reasons given by him for the discharge of
Garcia and Garza, nor was any explanation offered to account
for respondent's not having done so.
F. Contentions and Concluding Findings Concerning
Respondent 's Alleged Violations of Section 8(a)(3) of the Act
The General Counsel contends that Garcia and Garza were
discharged because they were the chief promoters of the
movement to obtain labor organization representation for
respondent's drivers and that, therefore, respondent violated
Section 8(a)(3) of the Act. Respondent disputes this and
maintains that Garcia and Garza were dismissed for cause;
namely, their "padding" of tire repair bills and respondent's
"loss of business."
The touchstone for decision respecting the actual reason for
the discharges is, it seems to me, the advice given to Garza by
Gonzales, respondent's dispatcher, when Garza proposed
discussing his discharge with Uranga, respondent's president.
At that time, it will be remembered, Gonzales told Garza to
tell Uranga that he "was not mixed up" in what was loosely
termed the union "and [Uranga] will probably give [him] a
break." The only reading which can be placed on this
statement is that Garza, and Garcia as well, had been
discharged because they were "mixed up" in the union.
The termination of the employment of Garcia and Garza
for this reason constituted an effective method of discouraging
them and other employees from supporting the movement to
obtain representation for respondent's drivers, which had been
sparked by Garcia and Garza. Their discharge also had the
effect of discouraging respondent's employees from becoming
members of a labor organization which, clearly, would have
been the ultimate result of the success of the representation
movement. I find, therefore, in agreement with the General
Counsel, that the dismissal of Garcia and Garza was violative of
Section 8(a)(3) of the Act.
Respondent's contentions as to the reasons for the
discharge of Garcia and Garza are unconvincing. I cannot
ascribe credence to the testimony of Uranga, respondent's
president, concerning tire repair bill "padding" by Garcia and
contracts which provided for the monthly sale and delivery by
respondent to the customers of specified quantities of the product sold.
As also found, these contracts have no set term , are often canceled by
the customers , and with similar frequency replaced by new agreements.
26 No evidence was introduced concerning the layoff or discharge of
any drivers during this period other than Garcia and Garza. On the
contrary , as I have already found , one driver was hired about a week
before, and another about three weeks after the discharges here under
consideration.
27It will be remembered that I have already found that respondent's
drivers are authorized , while on their routes, to have flat tires repaired.
28 The period referred to by Urgana was not otherwise fixed.
C. V. URANGA
Garza in face of respondent's unexplained failure, notwith-
standing Uranga's statement that he kept track of these bills
for 4 months, to offer in evidence those bills as well as bills
submitted by other employees to show the comparison
claimed. The conclusion is inescapable that had this evidence
been adduced it would have given the he to Uranga's
testimony. Interstate Circuit, Inc. v. United States, 306 U.S.
208, 226; Bechtel Corporation, 141 NLRB 844, 845, 852.
I am likewise unimpressed by the second explanation
submitted by respondent to justify the discharges; i.e., the
"loss of business" it claims to have experienced. If anything,
this contention, as will be shown, lends support to my
conclusion that by discharging Garcia and Garza respondent
violated Section 8(a)(3) of the Act.
In the first place, respondent's failure to offer in evidence
its records to substantiate its "loss of business" argument
causes it to suffer from the same infirmities as respondent's
tire repair bill "padding" claim. Additionally, it "fails to stand
under scrutiny"2 9 for another reason.
Notwithstanding respondent's assertion that it suffered a
business loss at about the time it discharged Garcia and Garza,
respondent in the same general period hired two other drivers.
As I have found, in this connection, one was engaged about a
week before the discharges and the other about 3 weeks after
that event. Had respondent, in fact, been required by business
reverses to discharge two drivers it would not, in the normal
course, have hired two replacements.
Respondent having hired substitutes for Garcia and Garza, I
find that the "loss of business" reason given by respondent for
their discharge is false. In view of this, I draw an inference,
permissible in the circumstances, which is unfavorable to
respondent. N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9).
The extent of the unfavorable inference which is given rise by
the situation presented here was spelled out in a more recent
case by the court which decided Dant. In Shattuck Denn
Mining Corporation v. N.L.R.B., 362 F.2d 466, 470, that
court stated with sharp explicitness:
If [the trial examiner] finds that the stated motive for a
discharge is false, he certainly can infer that there is another
motive. More than that, he can infer that the motive is one
that the employer desires to conceal-an unlawful motive-
at least where, as in this case, the surrounding facts tend to
reinforce that inference.30
In Atlantic Metal Products, Inc., 161 NLRB 919, this principle
was specifically adopted by the Board.
Accordingly, I conclude that by discharging Garcia and
Garza respondent committed unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities to the extent found violative of the
Act in section III, above, occurring in connection with its
operations set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among
29N.L.R.B. v. Dant, et al., 207 F.2d 165, 167 (C.A. 9).
30The reinforcing "surrounding facts" in this case are, as I have
found , respondent 's unlawful interrogation of employees , its creation of
the impression that their activities in support of the movement to
obtain representation were under surveillance , and the advice given to
641
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 that respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act, my Recommended Order will direct respondent to cease
and desist therefrom and to take the affirmative action
normally required in such cases to effectuate the policies of
the Act. Any backpay found to be due to Garcia and Garza
shall be computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and shall include
interest in the amount and manner provided for in Isis
Plumbing & Heating Co., 138 NLRB 716.
Because of the nature and flagrancy of the unfair labor
practices engaged in by respondent3 1 broad cease-and-desist
provisions will be included in my Recommended Order.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By coercively interrogating employees concerning their
efforts at obtaining representation by a labor organization, the
extent of their involvement in this movement, and their
activities, and those of other employees, in its support
respondent has engaged, and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By creating an impression that the activities of em-
ployees in furtherance of the movement set forth in
Conclusions of Law 3, above, were under surveillance,
respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) of the Act in the
manner set forth in paragraphs 7(o), (p), (q), and (r) of the
complaint.
6. By discharging Jesus V. Garcia and Ricardo Garza
because of their adherence to, and activities in support of, the
movement to obtain the representation of respondent's
employees by a labor organization, thereby discouraging
membership in a labor organization, respondent has engaged,
and is engaging, in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. The unfair labor practices engaged in by respondent, as
set forth in Conclusions of Law 3, 4, and 6, above, affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law, and
Garza at the time of his discharge by Gonzales, respondent's dispatcher.
I also place in this category respondent 's hiring of replacements for
Garcia and Garza.
31 See, in this connection , N.L.R.B. v. United Mineral & Chemical
Corporation, 391 F.2d 829 (C.A. 2, 1968).
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the entire record in this case, I hereby issue the
following:
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor practices
not specifically found herein.
RECOMMENDED ORDER
C. V. Uranga, d/b/a Paso Del Norte Oil Company of Eagle
Pass, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
efforts at obtaining representation by a labor organization, the
extent of their involvement in this movement, or their
activities, and those of other employees, in its support.
(b) Engaging, attempting to engage, or giving the impres-
sion that it is engaging, in surveillance of its employees' efforts
at obtaining representation by a labor organization.
(c) Discouraging membership in any labor organization by
discriminating against employees in regard to hire or tenure of
employment or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coeicing employees in the exercise of their right to self-
organization, to form, join , or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National Labor
Relations Act, as amended, or to refrain from any or all such
activities.
2. Take the following affirmative action which, it is found,
will effectuate the policies of the National Labor Relations
Act, as amended:
(a) Offer to Jesus V. Garcia and Ricardo Garza immediate
and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges, and made them whole, in the
manner set forth in the section of this Decision entitled "The
Remedy" for any loss of earnings they may have suffered by
reason of the discrimination practiced against them.
(b) Notify Jesus V. Garcia and Ricardo Garza if serving in
the Armed Forces of the United States of their or his, as the
case may be, 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.
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due under
the terms of this Recommended Order.
(d) Post at its premises copies of the attached notice
marked "Appendix. ,32 Copies of said notice, and copies of
Spanish translations thereof, on forms provided by the
Regional Director for Region 23, shall be posted by
respondent after being duly signed by its representative,
immediately 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
insure that said notices and their Spanish translations are not
altered, defaced, or covered by any other material.
32In 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
wordss "a Decision and Order."
In 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 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 Relations Act, as
amended, we hereby notify our employees that:
After a trial in which both sides had an opportunity to
present their evidence, it has been found that we violated the
law by committing unfair labor practices. Accordingly, we post
this notice and we will keep the promises that we make in this
notice.
WE WILL NOT question you in any way about any union
or about what you are doing to bring in a union to represent
you.
WE WILL NOT watch or spy on what you are doing
about any union or on what you are doing to bring in a
union to represent you. Also, WE WILL NOT do or say
anything to make you think that we are watching you or
spying on you as you do any of these things.
WE WILL NOT fire you, lay you off, fail or refuse to
give you back your job, or take any action against you
because you do anything for any union, or because you do
anything to bring in a union to represent you, or because
you have already done any of these things. As it has been
decided that we fired Jesus V. Garcia and Ricardo Garza for
doing these things WE WILL offer to put them back to
work at their old jobs or to jobs just like their old jobs and
WE WILL pay Jesus V. Garcia and Ricardo Garza for any
wages they lost because we fired them.
WE WILL NOT in any manner interfere with, restrain,
or coerce you in the exercise of any rights guaranteed to
you by the National Labor Relations Act. In this
connection, WE WILL respect your rights to self-
organization, to form, join, or assist any union, to bargain
collectively through any union or representative of your
choice as to wages, hours of work, and any other term or
condition of employment. You also have the right, which
WE WILL also respect, to refrain from doing so.
All our employees are free to become or remain, or not to
become or remain, members of any union.
(e) Notify the Regional Director for Region 23, in writing, PASO DEL NORTE OIL
within 20 days from the receipt of this Decision , what steps COMPANY OF EAGLE PASS
have been taken to comply herewith . 33 (Employer)
C. V. URANGA 643
Dated By This notice must remain posted for 60 consecutive days
(Representative) (Title) from the date of posting, and must not be altered, defaced, or
Note. We will notify Jesus V. Garcia and Ricardo Garza if
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the
Armed Forces.
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, 6617 Federal Office
Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone
228-4269.