Ramona's Mexican Food Products, Inc.

National Labor Relations Board - Board Decisions

May 9, 1975

217 N.L.R.B. 867 (N.L.R.B. 1975)

RAMONA'S MEXICAN FOOD PRODUCTS, INC.
Ramona 's Mexican Food Products , Inc. and Delfino
Fidel Rios. Case 31-CA-4576
May 9, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On December 16, 1974, Administrative Law Judge
Martin S. Bennett issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Ramona's Mexican Food Products,
Inc., Gardena, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This mat-
ter was heard at Los Angeles, California, on October 15,
1974. The complaint, issued September 10-and based upon a
charge filed July 17, 1974, by Delfino Fidel Rios, an in-
dividual, alleges that Respondent, Ramona's Mexican Food
Products, Inc., has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act. Briefs have
been submitted by the General Counsel and Respondent.
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT'
I JURISDICTIONAL FINDINGS
Ramona's Mexican Food Products , Inc., is a California
corporation which maintains its principal office and facility
at Gardena, California, where it is engaged in the preparation
and sale of food products to restaurants , catering services,
867
and stores . Respondent annually enjoys a gross volume of
sales of approximately $6 million and purchases goods valued
in excess of $50 ,000 from distributors located within the State
of California, who in turn purchase and receive said goods
directly from points outside that State . I find that the opera-
tions of Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Produce, Refrigerated and Processed Foods and Industrial
Workers Local 630, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction, The Issue
Respondent is covered by a contract with the Union run-
ning from September 27, 1972, through April 30, 1975. This
contract recognizes the Union as bargaining representative
for all production and maintenance employees, divers, driv-
er-salemen and deli workers at Respondent's place of busi-
ness, excluding "all other salesmen" and the other customary
exclusions. It also provides that a new employee is on a
probationary basis for 30 days and" is subject to a union
security clause on the 31st day of such employment.
Rios was hired on May 29, 1973, and discharged on or
about June 25, 1974. According to the General Counsel, he
was discharged because of his union activities and Respond-
ent, in turn, contends that Rios was a supervisory employee
not normally protected under the Act and, further, that he
engaged in misconduct which warranted his discharge, viz,
"for abusing company time and the company vehicle and
company gas for personal reasons," as testified by Carlos
Torres, executive vice president of the Company which is
owned by his parents.
It is undisputed that Torres and Henry Chavez, truck-
driver supervisor, are supervisors within the meaning of the
Act. As will appear, Respondent admits that Rios was a
salesman who in emergencies performed as a driver of one of
the 14 delivery trucks operated by Respondent, but urges that
he was being groomed to replace one, Sam Magana, the sales
manager for Respondent who had left after 21 years of em-
ployment. The General Counsel does not dispute the supervi-
sory status of Magana, but does contend that Rios had not
yet achieved this stature; as will appear, I. agree with this
contention.
B. Sequence of Events
Engaged in the production and nonretail sales of Mexican
foods, Respondent has approximately 300 employees with 14
trucks to deliver its products; Henry Chavez is in direct
supervision of the drivers. Rios was hired on May 29, 1973,
as a salesman by Carlos Tones, then president, but now
executive vice president; Rios had no prior sales experience.
In this capacity, he was to solicit new accounts and endeavor
to reopen former accounts which had taken their business
217 NLRB No. 153
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elsewhere. He was assigned, to a company van and sold from
price lists provided him by Respondent.
As Torres testified, Rios had no authority to change prices
or grant discounts. All of his sales, according to Rios, were
subject to a clearance of credit of customers. As part of his
training, he accompanied the drivers on their routes so as to
acquaint himself with the areas served. He had no responsibil-
ity to ascertain that the drivers were doing their jobs correctly
and did not so function. According to Torres, he wished Rios
to spend 2 to 3 weeks on each of the 14 routes and envisaged
that this training would take about 1 year.
In addition to his sales duties, Rios substituted for drivers
who were ill or on vacation. Rios, an intelligent and articulate
witness, testified, and I so find, that this relief driving took
up approximately 70 percent of his time. Indeed, not long
after his hire he spent approximately 3 months on route 3 due
to the absence of that driver. When so engaged in relief driv-
ing, he did not perform any sales duties. Torres admitted that
he kept no record as to the amount of time Rios devoted to
driving, although he opined that the 70 percent- figure was
high.
Rios testified that when Torres hired him, Tones stated
that Rios "had no business with the Union" because he "was
not that type of employee." Tones in essence agreed, testify-
ing that he told Rios that he need not worry about the Union
and that he had no "business" with it because "he was a
company man."
Some 4 to 6 weeks prior to his discharge, Rios claimed that
he should be compensated for damage to his personal cloth-
ing while at work. He and Tones disagreed as to the amount
of reimbursement and Rios filed a charge with the California
State Labor Commission. Tones responded in writing thereto
on June 14.
About 2 weeks before his discharge, Rios happened to see
the contract with the Umon and concluded that he was enti-
tled to a higher rate of pay than the $4.37 per hour he was
receiving.' As a result he visited the Union to inquire why
Respondent never notified the Union of his hire, allegedly as
a sales-driver, and further to join the Union for "protection."
He testified that this had nothing to do with wages. Minutes
after he left the Umon hall, Business Agent Bob Currier
telephoned Torres, according to the latter, and inquired as to
the status of Rios. Torres responded that he was a company
salesman and therefore not to be included within the bargain-
ing unit.
Later that day, Torres summoned Rios to his office, asked
why he had visited the Union rather than contacting Tones.
Indeed, as Torres admitted, he reminded him that he was a
company man who was to have nothing to do with the Union.
Torres admitted that he decided to discharge Rios after his
talk with him, notified the office to prepare his check and
instructed Chavez to give him his check; this was done on the
same day.'
C. Alleged Supervisory Status
Initially, it is of no import whether Rios was properly
within the recognized bargaining unit or excluded therefrom.
The only criterion is whether or not he was a rank-and-file
employee and, if he was, did Respondent discharge him for
valid cause or because he contacted the Union. Stated other-
wise, within the unit or not, and if a nonsupervisor, he is
subject to the protection of Section 7 of the Act.
According to Rios, Tones hired him as a sales representa-
tive, telling him that he was to open new accounts and per-
form emergency relief driving; there were no other salesmen
employed at that time and his employee contacts were only
with the truckdrivers and with Henry Chavez.' Torres
agreed with Rios that, in accompanying the drivers, his only
function was to observe the routes, learnthem, and that he
had no responsibility to see that the drivers were performing
their jobs correctly. He did not hire or fire, recommend same
or responsibly direct any employees.
Tones admitted that he envisaged that it would take Rios
at least a year to learn the job and ultimately be in charge of
four salesmen, to be hired, as well as the drivers, and that his
title then would be sales manager. Rios uncontrovertedly
testified, and I find, that Tones told him that it would take
from 1 to 4 years for him to reach the salary of Magana which
had been $1,000 a month.
Tones variously testified as to the title of Rios being com-
pany salesman and, on the other hand, sales manager. What
I deem more probative is the fact that Respondent provided
him with company business cards bearing the title of "sales
representative." Totally aside from the fact that Rios denied
ever being told that he was being groomed to become sales
manager, in the posture most favorable to Respondent, the
testimony of Tones in several places makes it clear that Rios
was being trained, that it would take time, and that ultimately
he would "work up to take the place of Sam Magana," the
departed sales manager. In sum , employees being groomed
for supervisory posts are not supervisors since future assign-
ments are at best speculative. Reliance Insurance Company
and Planet Insurance Company d/b/a Reliance Insurance
Companies, 173 NLRB 985 (1968); Hilton-Burns Hotel Co.,
Inc., Hilton Hotel Corporation Hale Kaanapoli Hotels Associ-
ates, A limited partnership, 167 NLRB 221 (1967); and
American Cable Systems, Inc., 161 NLRB 332, 338 (1966).
I find, on a preponderance of the evidence, that Rios was
not a supervisor within the meaning of Section 2(11) and that
he was rather an employee within the meaning of Section 2(3)
of the Act. See Crest Chemical Company, 213 NLRB No. 118
(1974).
D. The Work Record of Rios
Tones conceded that Rios "was always doing a good job."
This is consistent with the testimony of Rios, who well with-
stood a rigorous cross-examination, that Torres compli-
mented him on his progress and work some days before his
He received $175 a week which divides into this figure.
2 The testimony of both Rios and Torres varies as to the timing, placing
the call from Currier, who did not testify, that day or several days before.
' Another salesman was hired late during the employment of Rios, but left
shortly thereafter.
RAMONA'S MEXICAN FOOD PRODUCTS, INC. 869
discharge and that he received several raises in pay; the latter
was conceded.
As for the trigger incident;- Torres claimed that he dis-
charged Rios the very same day that he learned that Rios had
visited the Union that morning.4 He allegedly did so be-
cause Rios used the Company truck, gas and time for a visit
which took several hours. However, Torres admitted that he
did not so tell Rios in their final conversation. Significantly,
Torres admitted questioning Rios as to why he was a "com-
pany man" who was to have "nothing to do with the Union."
To sum up, Respondent discharged an admittedly most
competent employee who had been granted a number of in-
creases in pay after 13 months of employment. Torres admit-
ted that by doing so he had sacrificed all his training time and
much money and was still seeking to replace him. The record
discloses that Rios frequently worked overtime and on Satur-
days without extra compensation. The inference is well war-
ranted that had Rios' personal errand been unrelated to the
Union, no discipline would have been imposed.'
I find, on a strong preponderance of the evidence, that by
discharging Rios, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Ramona's Mexican Food Products, Inc., is an employer
within the meaning of Section 2(2) of the Act.
2. Produce, Refrigerated and Processed Foods and Indus-
trial Workers Local 630, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Delfino Fidel Rios on June 25, 1974,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found Respondent has engaged in unfair labor
practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectu-
ate the policies of the Act.
I have found that Respondent has violated Section 8(a)(3)
and (1) of the Act by discriminatorily discharging Delfino
Fidel Rios on June 25, 1974. I shall, therefore, recommend
that Respondent offer him immediate and full reinstatement
to his former job, or, if this job no longer exists, to a substan-
tially equivalent position, without prejudice to seniority or
other rights and privileges. See The Chase National Bank of
the City of New York, San Juan, Puerto Rico Branch, 65
NLRB 827 (1946).
4 As noted, the record in places indicates that the visit may have been
several days before, but nevertheless was immediately followed by a tele-
phone call to Torres from Currier.
5 There is evidence that Tones forbade Rios to assist drivers in loading
their trucks or to fraternize with them. It is clear that these incidents mani-
festly had nothing to do with the decision to discharge him
I shall further recommend that Respondent make him
whole for any loss of pay he may have suffered as the result
of his discharge by payment of a sum of money equal to that
he normally would have earned from said date to the date of
Respondent's offer of reinstatement, less net earnings, with
backpay and interest thereon to be computed in the manner
prescribed by the Board in F W. Woolworth Company, 90
NLRB 289 (1950) and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to -Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER6
Respondent, Ramona's Mexican Food Products, Inc.,
Gardena, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in or activity in behalf of
Produce, Refrigerated and Processed Foods and Industrial
Workers Local 630, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization of its employees, by discriminating
in regard to hire or tenure of employment, or any term or
condition thereof.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed under Section 7 of the National Labor Relations Act,
except to the extent a union security clause is permitted under
Section 8(a)(3) thereof.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Delfino Fidel Rios immediate and full reinstate-
ment to his former job, or if said job no longer exists, to a
substantially equivalent position, without prejudice to seni-
ority or other rights and privileges, and make him whole for
any loss of pay suffered by reason of the discrimination
against him in the manner provided above in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant at Gardena, California, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 31,
after being duly signed by Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it for
6 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herem shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
I In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith. -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or activity in
behalf of Produce, Refrigerated and Processed Foods
and Industrial Workers Local 630, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of
our employees, by discriminating in regard to hire or
tenure of employment, or any term,or condition thereof.
WE WILL offer Delfino Fidel Rios immediate and full
reinstatement to his former job, or if said job no longer
exists, to a substantially equivalent position without
prejudice to seniority or other rights and privileges and
-make him whole for any loss of pay suffered by reason
of the discrimination against him, in the manner pro-
vided in the section of this Decision entitled "The
Remedy."
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed under Section 7 of the National Labor
Relations Act.
All our employees are free to become or remain , or refrain
from becoming or remaining, members of the above-named
or any other labor organization, except to the extent a union
security clause is permitted under Section 8(a)(3) of the Act.
RAMONA'S MEXICAN FOOD PRODUCTS,
INC.