Sweeney & Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1969

176 N.L.R.B. 208 (N.L.R.B. 1969)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sweeney & Co., Inc. and Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Local 173 . Cases 23-CA-2914 and
23-CA-3079
May 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On December 26, 1968, Trial Examiner Phil
Saunders issued his Decision in the above -entitled
proceeding , finding that 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. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Respondent filed exceptions and cross-exceptions to
the Trial Examiner's Decision and a brief supporting
such cross-exceptions and in answer to the General
Counsel's exceptions.
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 these cases to a
three-member panel.
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 these cases , and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.
Respondent, a wholesale grocery operation, is
engaged in the sale and delivery of groceries to
retail stores from the warehouses it operates in San
Antonio, Laredo, and McAllen, Texas. McAllen,
the facility involved herein, is the only one of
Respondent's warehouses where employees are
represented by a union . The McAllen warehouse is
divided into three basic departments: IBM, produce,
and grocery. The IBM department's principal
function is inventory control of merchandise in the
warehouse and the handling of customer orders and
billing. The produce and grocery departments
constitute the warehouse proper. The primary
function of the produce department is the supply of
fruits and vegetables to Respondent's customers. It
has 8 to 10 employees and their hours of work vary
according to need. The grocery department is the
principal department of the warehouse and it has
176 NLRB No. 27
some 20 to 25 employees. Since 1966, the employees
in these departments have worked in two shifts.
Until December 1967 Respondent also operated
at McAllen a Home Center Department which
carried some 1,500 products such as kitchen utensils,
hardware materials, and several items of clothing.
Sometime prior to October 1967, corporate officials
in San Antonio decided to transfer the home center
operations from McAllen to a similar department at
its San Antonio warehouse. Upon being so directed,
plant manager Miller began to deplete home center
merchandise at McAllen and have customers place
their orders at San Antonio. By December 1967 the
home center operations at McAllen were completely
phased out.
In the spring of 1966 the Union began an
organizing campaign among Respondent's McAllen
employees. After a hearing on the Union's petition,
the Regional Director directed an election in a unit
of approximately 47 employees consisting of:
All employees, including warehousemen and
helpers, truckdrivers, and clerical employees,
employed at the Employer's facility at McAllen,
Texas, excluding all buyers, salesmen, guards,
watchmen and supervisors as defined in the Act.
The Union received a majority of the ballots cast in
the election held September 19, 1966, and was
certified as exclusive collective-bargaining
representative on September 26, 1966. Thereafter,
Respondent and the Union participated in
bargaining sessions on January 10, 1967, and
frequently thereafter until their last meeting on
April 19, 1968.
The complaint alleges that between the time of
the Union's certification and the last bargaining
session, Respondent on numerous occasions engaged
in conduct proscribed by the Act. Specifically, it
alleges Respondent violated Section 8(a)(1) of the
Act by soliciting employees to withdraw their
support of the Union; threatening employees with
loss of economic benefits because of employee union
support; promising increased benefits to employees
for withdrawal of their support from the Union; and
illegally interrogating employees about their union
sympathies and activities. It further alleges that
Respondent violated Section 8(a)(3) by discharging
employee Garcia because of his activities on behalf
of the Union, and violated Section 8(a)(5) by
refusing to bargain with the Union over checkoff,
refusing to make the Union an offer on wages,
unilaterally closing the home center without
notification to the Union and overall bad-faith
bargaining . Finally, the complaint in Case
23-CA-3079 alleges an additional violation of
Section 8(a)(3) based on Respondent's refusal to
reinstate upon their unconditional application
employees who participated in the strike which
commenced on February 11, 1968.
1. The Trial Examiner found, and for reasons
stated in his Decision we agree, that Respondent,
SWEENEY & CO. 209
through supervisor Villerreal, violated Section
8(a)(I) of the Act by promising increased wages and
other benefits to employee Islas if Islas would cease
his activity on behalf of the Union. Contrary to the
Trial Examiner, however, we find that Villerreal
further violated Section 8(a)(I) of the Act by his
statements to employee Guajardo.
The record reveals Guajardo is one of the seven
employees who work the midnight to 7 a.m. shift in
Respondent's produce department. Sometime in
1966 Respondent effected a 20-cent "night
premium" for employees who worked the 2 p.m. to
midnight shift in the grocery department. No
premium, however, was paid to night shift
employees in the produce department. Guajardo
testified that in February 1968 Villerreal told him
that while the Company was negotiating with the
Union, the Company could not consider the idea of
granting the premium pay to employees in the
produce department, but after the negotiations were
over or the plant was back the way it was before,
maybe the company would give the employees in the
produce department the 20-cent night premium.'
Unlike the Trial Examiner, we are of the opinion
that the import of Villerreal 's statement is that but
for the presence of the Union, produce department
employees would have received the long withheld,
night-shift premium. Accordingly, we reverse the
Trial Examiner and find this statement was a
violation of Section 8(a)(1) of the Act.
2. The General Counsel excepts to the Trial
Examiner's failure to find that Respondent
committed additional violations of Section 8(a)(1)
through the conduct of Ernest Hodges. In dismissing
the allegations pertaining to Hodges, the Trial
Examiner found Hodges was neither a supervisor
nor an agent of Respondent. Accordingly, the Trial
Examiner found Hodges' conduct not attributable to
Respondent and dismissed those portions of the
complaint without passing on the merits. We
disagree.
The record reveals that Hodges is one of the 10 or
11 individuals working the night shift. In the
absence of night manager Miller (from
approximately 5 p.m. until midnight), Hodges is
responsible for seeing that the work on the shift is
done as required. He testified that if an employee
were slow, "I might ask him was something wrong
or what his problem was." Sometimes he tells
'Villerreal in his testimony admits this conversation occurred, but denies
that night shift premiums were mentioned . Instead , he claims that the
discussion related to the 20-cent general increase the Company was
offering as a result of the new minimum wage laws. Guajardo's version is
credited as the more plausible account. The denial of night premium had
been a major grievance of the produce employees for about a year
Villerreal admits that this issue had been the subject of recurring
conversations during this period . He further admits to the conversation
with Islas which corresponds in material respects to Guajardo's account of
what Villerreal told him . Furthermore , it is unlikely that Villerreal would
have been talking about the 20 -cent general increase , as distinguished from
the 20-cent night-shift differential since Guajardo did, effective February 1,
1968, enjoy at least a 15 -cent-per-hour general increase , under the
Employer 's position with respect to the minimum wage changes.
employees to work faster. He has moved employees
from job to job and on occasion, if he determined
an employee had good reason for asking, he has
granted time off. He further testified that if work
remains to be done at the end of the shift and
employees want to leave, "I just tell them there is
work to be done." He is paid considerably more
than rank and file employees with whom he works
and receives the same amount of paid vacation as
Miller and Villerreal, admitted supervisors.
The record further reveals that Respondent's
employees consider Hodges as their supervisor and
their beliefs have been reinforced by the activities of
Respondent. Thus, on an occasion when employee
Garza hesitated at carrying out Hodges' instructions
to move charcoal Hodges told him he was fired.
Plant manager Isenberg, although intervening and
retaining Garza, told him that Hodges indeed had
authority to fire him. On another occasion when
employee Garcia got into a dispute with Hodges
about the order in which certain work should be
done, Miller told Garcia that Hodges "was in
charge" and Garcia should do what Hodges told
him.
Contrary to the Trial Examiner, we are satisfied
that these statements by acknowledged management
officials, when construed in the light of Hodges'
position as the sole representative of Respondent in
the grocery department on a regular basis and
during substantial periods on the night shift, were
clearly calculated to impress employees with the fact
that Hodges was their boss and had the power to
back his instructions through the exercise of
supervisory authority. In these circumstances,
including Hodges' responsibility for night shift
operations, his authority to assign and direct work,
grant time off, his apparent authority to discharge,
as well as his status as the only management
representative in the grocery department after 5
p.m. we find that Respondent is responsible for the
conduct of Hodges set forth below.'
Hodges testified that he had a conversation with
Garza in February 1968, and told Garza that the
employees at Respondent's unrepresented plants in
San Antonio and Laredo had received better
benefits than those at McAllen, and that McAllen
employees, without a union, might get better
benefits. Specifically, San Antonio and Laredo
employees were receiving 2 weeks' vacation and had
a credit union. Hodges freely admitted he_ was in
accord with the Company's opposition to the Union
and that in his conversations with Garza (and other
employees)"...I was expressing my feelings toward
the whole thing, the Union, and if my opinion would
have any effect on his opinion, well, so much the
better." On these facts, and those set forth in the
discussion of the refusal to bargain, infra, we are of
the view that Hodges' statements comparing the
'Howard Johnson Company. 172 NLRB No. 90; Technical Maintenance
Inc.. 172 NLRB No. 60.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits received by unrepresented employees with
lack of benefits enjoyed by those represented by the
Union and that benefits similar to those enjoyed at
Respondent 's nonunion plants might be granted if
the Union were eliminated, were calculated to
influence a withdrawal of Union support.
Accordingly, we find that by said conduct
Respondent violated Section 8(a)(1) of the Act.
3. The General Counsel has excepted to the Trial
Examiner's failure to find that Respondent violated
Section 8(a)(3) of the Act by discriminatorily
selecting Hector Garcia for discharge upon the
closing of its home center department on December
16, 1967 . In dismissing these allegations the Trial
Examiner concluded that closure of the department
was justified on economic grounds. He further found
that Respondent had not violated Section 8(a)(5) of
the Act since the Union was informed of the
decision to close the center and afforded the
opportunity to bargain with respect thereto. Thus,
he found Garcia's termination directly attributable
to the closing of the center and since there was no
longer any work available, he further found the
evidence insufficient to support a finding that the
discharge was discriminatorily motivated. We agree
that the termination of the center's operations was
economically motivated and that the Union received
prior notification of the closure and was afforded an
opportunity to bargain on that issue.` We find,
nonetheless , merit in the General Counsel's
exception to the Trial Examiner's failure to find
Garcia was selected for discharge because of his
Union activities . In reaching this conclusion, we are
guided by the following considerations.
The facts show that Garcia entered the
Respondent's employ in August 1959, and his
employment remained uninterrupted until his
discharge on December 16, 1967. When initially
hired, Garcia worked primarily at placing the state
tax stamp on cigarette packages. In addition, he
performed various other jobs throughout the
warehouse . In 1963, when Respondent ' s installation
of a cigarette stamping machine resulted in a
reduction in the amount of time required for
stamping cigarette packages, Garcia was also given
the responsibility of taking care of the home center
department. Additionally, the record shows that
since 1963 Garcia has been qualified to operate, and
has operated , various pieces of equipment in the
warehouse operation including the fork lift and
towmotor. In fact, he has worked at virtually every
job in the warehouse.
In 1967 , he was classified as an order puller and
paid the minimum wage of $1.40 per hour as were
the other 10 to 12 order pullers. Although he
continued spending considerable time in the home
center, because he was qualified to perform every
'We do not however adopt the Trial Examiner 's statements regarding the
applicability of N.L. R.B. v. Darlington Manufacturing Company . 380 U.S.
263. to the facts of the instant case.
job in the warehouse he spent the remainder of his
time in the role of a utility worker.
It is undisputed that during the time he spent in
Respondent's employ, Garcia was never discharged,
laid off, warned, or had his work criticized. Indeed,
on one occasion, Miller praised him for having
gotten a customer for the Company and
complimented him on his job performance.
Upon the advent of the Union in 1966, Garcia
became one of its leading adherents in the plant. He
was the Union's observer during the 1966 election
and was elected Union chairman after the Union's
victory. Upon the commencement of bargaining
with the Company, Garcia was one of the employees
on the negotiating team and assumed an active role
therein.
Respondent in October 1967, received directions
from the corporate headquarters in San Antonio to
close down the home center. It thereupon began its
phaseout. On December 16, 1967, Garcia was
summoned to Miller's office and told that due to the
closing of the center his services were no longer
needed and, hence , he was being terminated.
Respondent contends it declined to offer Garcia a
position elsewhere in the plant because all positions
were filled at that time.
In our opinion, Respondent's explanation that it
terminated Garcia because, if it had not, some other
employee would have to be discharged is not
reflective of the true motivation underlying Garcia's
layoff. The background evidence, clearly establishes
that Respondent , during the initial organization
drive, openly opposed employee efforts to secure
union representation. Shortly after the discharge of
Garcia, Respondent, through its supervisors,
engaged in unlawful efforts to induce employees to
withdraw their support of the Union. Garcia,
himself, was closely identified with the Union,
having served as a Union observer during the
election, and as an employee-member of the Union's
negotiating team which was engaged in bargaining
through the period of his discharge. The termination
occurred with no effort by Respondent to seek
alternative employment for him-and this despite the
fact that during his 8 years employment with
Respondent, Garcia, though paid at the basic
minimum wage, had a work history which shows a
level of competency that enabled him to perform a
variety of tasks in Respondent's warehouse, and
which was unmarred by formal discipline.
Nevertheless, at the time of the discharge,
Respondent's payroll included at least five
employees with less than 1 year of service. Two
other employees, with far less seniority than Garcia,
also worked part time in the Home Center, but were
retained after termination of this operation.
Furthermore, although the decision to terminate the
Home Center was made in October, Respondent in
November, and about 3 weeks before Garcia's
discharge, hired one Ramirez to perform a job for
which Garcia was qualified.' It also appears that
SWEENEY & CO. 211
notwithstanding the fact that Respondent's
employees were then working a 50-hour week,
Respondent elected to terminate Garcia, rather than
utilize this able employee, of long standing, as a
means of offsetting overhead expense. In our
opinion, the total circumstances amply establish that
Respondent's unwillingness to find an alternative to
the discharge of Garcia, can only be explained as
part and parcel of an effort to discourage employee
support of the Union by the discharge of a senior
employee with a good work record whose only
possible fault lay in his close identification with the
Union's efforts to secure representation of
Respondent's employees, and thereafter to negotiate
a collective-bargaining agreement. Accordingly, we
find, contrary to the Trial Examiner, that
Respondent discriminatorily selected Garcia for
discharge and thereby violated Section 8(a)(3) and
(1) of the Act.
4. The General Counsel has excepted to the Trial
Examiner's failure to find that Respondent engaged
in a course of bad-faith bargaining throughout the
negotiations. We find merit in this exception.
The first bargaining session was held on January
10, 1967, with negotiations thereafter on various
dates through December 13, 1967. On February 11,
1968, the employees struck. On April 19, 1968,
pursuant to the Union's request for a resumption of
negotiations, the parties again met, but no
agreement was reached. No further meetings were
held.
At the first negotiation session, Respondent stated
its opposition to any collective-bargaining contract
being retroactive to the date of certification, its
opposition to a maintenance of standards clause and
any provision concerning seniority, and its
opposition to checkoff stating that the collection of
dues was the Union's business. At the ensuing
sessions, the parties were able to reach agreement,
mainly through concessions by the Union, on
procedural provisions and matters of contract
language. Thus, accords were reached on the
agreement clause, management rights, the intent and
purpose clause, overtime after 40 hours of work
union visitation, jury duty, bulletin boards, hours of
work, grievance procedure and arbitration, and a
no-strike-no lockout clause. No agreement was ever
reached on the Union's demands concerning a wage
iiease , increased vacations, employer financed
health and welfare, additional holidays, overtime on
the sixth and seventh days of work, maintenance of
standards, unit work, union security, and night-shift
differentials.
The Trial Examiner, in dismissing the alleged
violation of 8(a)(5) and finding the Respondent
bargained in good faith, stated that:
The record in this proceeding of the negotiations
and the proposals by the Respondent, its
'Although testimony indicates that Ramirez was hired on a temporary
basis, he remained in the employ of Respondent at the time of the hearing
availability and participation on 14 different
occasions since the Union was certified, and its
willingness to sign an agreement, clearly
establishes that the Respondent's conduct in the
course of these dealings was in keeping with the
spirit of the Act.
We disagree.
The duty to bargain collectively, as defined in
Section 8(d), requires the parties to "meet at
reasonable times and confer in good faith with
respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an
agreement. . . ." Although this obligation does not
"compel either party to agree to a proposal or
require the making of a concession,"` Section 8(d)
does contemplate a willingness to enter negotiations
"with an open mind and purpose to reach an
agreement consistent with the respective rights of
the parties."' Simply entering "upon a sterile
discussion of union-management differences is not
sufficient."' Essentially, "the ultimate issue of
whether the Company conducted its bargaining
negotiations in good faith involves a finding of
motive or state of mind which can only be inferred
from circumstantial evidence."" Where, as in the
instant case, an employer has engaged in lengthy
negotiations, which produced little more than a
strike, the question is whether "it is to be inferred
from the totality of the employer's conduct that he
went through the motions of negotiation as an
elaborate pretense with no sincere desire to reach
agreement, or that he bargained in good faith but
was unable to arrive at an acceptable agreement
with the Union."'
In our opinion, Respondent's conduct during
course of negotiations, both at and away from the
bargaining table, evidenced no real intention of
entering an agreement but a desire to produce a
stalemate as a means of frustrating bargaining and
undermining the statutory representative. At the
outset of negotiations Respondent announced its
firm opposition to contract retroactivity,
maintenance of standards, seniority, and checkoff.
Respondent adhered to those positions throughout.
The areas of agreement were limited to such
provisions as management rights and no-strike
guarantees, matters of language and other terms
which were not reflective of improved terms of
employment in the collective-bargaining unit. With
respect to the critical economic issues , prior to the
strike Respondent was unwilling either to agree, or
make a concession to the Union's demands for an
improvement in overtime benefits, holidays, health
and welfare, overtime, premium pay for produce
'N.L R B. v. American National Insurance Co., 343 U.S. 395, 402, 404.
'L. L. Majure Transport Co. v. N.L.R.B.. 198 F.2d 735, 739 (C.A. 5);
Globe Cotton Mills v. N.L.R.B., 103 F.2d 91, 94 (C.A. 5).
'N.L.R.B. v. American National Insurance Co., supra. 402.
'N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131,
139-140 (C.A. I), cert. denied 346 U.S. 887.
'Ibid.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department personnel, vacations, and maintenance
of standards. On the issue of wages, Respondent in
October 1967, made its sole prestrike economic
concession, namely an offer of a 2-cent-per-hour
increase , which it indicated would be completely
absorbed by the new increase in the Federal
minimum wage scheduled for February 1, 1968.
Although Respondent, by letter dated January 19,
1968, advised the Union that it was planning to
offer the 20-cent increase required by Federal law to
those paid at the minimum wage, and also to grant
a like increase to those enjoying more than the
minimum rate, no similar offer was made to the
Union in the course of the 13 earlier negotiating
meetings , and this letter, sent just before the
effective date of the new minimum wage
requirements, can hardly be viewed as a proposal
emanating from the give and take of good-faith
collective bargaining. After the strike, which
resulted in replacement of all strikers, Respondent
though adhering to its former position in all other
areas , indicated that it would be agreeable to an
additional half-day holiday on Christmas eve as well
as a 5-cent night-shift premium for employees in the
produce department. At that time, a representative
of the Union pointed out that the Respondent's
concessions would result in a new contract costing
Respondent a mere $680 in economic improvements,
and shortly thereafter this last negotiation session
ended without further resumption of collective
bargaining.
The Board has stated that an employer's
proposals may be taken into account in assessing its
motivation in collective-bargaining negotiations."'
Thus, rigid adherence to proposals, which are
predictably unacceptable to the employee
representative, may be considered in proper
circumstances as evidencing a predetermination not
to reach agreement." In the instant case,
Respondent's position with respect to economic
issues, considered in the light of the employment
benefits enjoyed by its work force at the outset of
negotiations, was generally lacking in concessions of
value and is strongly suggestive of an intention on
its part to engage in sterile discussions, accompanied
by illusory and meaningless concessions, without
real intention of engaging in the type of bargaining
that could lead to execution of a labor contract. It
would be unreasonable to assume that Respondent's
attitude with respect to economic issues was taken
without anticipating that communication of its views
to the Union would create anything other than
immediate stalemate.
We do not, however, rely solely upon
Respondent's position at the bargaining table to find
a failure to bargain in good faith herein. For, other
evidence clearly reveals an intention on
Respondent's part to produce a stalemate and
"East Texas Steel Carting Company, Inc.. 154 NLRB 1080, 1081.
'Fitzgerald Mills Corporation, 133 NLRB 877, 882, enfd. 313 F.2d 260
A. 2), art. denied 375 U S 311
frustrate negotiations as a means of ultimately
eliminating the Union as statutory representative of
its McAllen employees . As indicated , Respondent in
addition to its McAllen facility operated warehouses
in San Antonio and Laredo , Texas . The employees
at these latter locations were unrepresented. In
February 1967, employees at McAllen and San
Antonio received the same base rate of $1 .40 hourly
and l week ' s vacation . Although Respondent in its
bargaining with the Union at McAllen at no time
intimated a willingness on its part to accelerate the
minimum wage increases scheduled to come into
effect in February 1968, or to make a
counterproposal to the Union's demands for
improved vacations , in the course of those
negotiations the unrepresented employees at San
Antonio were granted a 2-week vacation after 5
years ' service, and all had received the minimum
wage increases by November 1967. Furthermore,
despite Respondent ' s failure to make a significant
counter offer to the Union 's demand for a 10-cent
increase , in 1967 it granted such an increase to
Laredo ' s employees . It is apparent , therefore, that
Respondent actually conferred benefits on
employees at its unrepresented facilities, which it
was unwilling even to propose to the Union during
the course of negotiations at McAllen . At the same
time, Respondent , through its supervisors and
agents, utilized this disparity as a means of
exploiting the Union's fruitless efforts to secure a
contract . Thus , McAllen 's employees were told that
their counterparts at Laredo and San Antonio were
enjoying better benefits , which they would share in
were it not for the Union.
This conduct, which together with the discharge of
Garcia without regard for his length of service and
reputation as a worker , was part and parcel of an
overall scheme to disparage the Union in the eyes of
unit employees and undermine its representative
status . Considered in the light of the foregoing,
Respondent ' s inflexibility at the bargaining table
could only be viewed as interwoven with an unlawful
pattern of conduct calculated to frustrate
bargaining, avoid a contract , force a strike, and
through permanent replacement of strikers and
other means undermine the Union. Accordingly, we
find that Respondent , through its overall course of
conduct , failed to comply with the statutory duty to
bargain in good faith and thereby violated Section
8(a)(5) and ( 1) of the Act.
5. The General Counsel has excepted to the
failure of the Trial Examiner to find that the
strikers in Case 23-CA- 3079 are unfair labor
practice strikers . The record reveals that the
employees voted to strike because of Respondent's
discharge of Hector Garcia and because of their
belief that the Company was not bargaining in good
faith. Additionally, the record shows the strikers
applied unconditionally for reinstatement on April
19, 1968 , and were not reinstated by Respondent.
As we have found Respondent violated Section
SWEENEY & CO. 213
8(a)(3) of the Act by discharging Garcia and Section
8(a)(5) by its bad-faith bargaining, we find merit in
General Counsel's exceptions. We therefore find that
the strike of the Company's employees which
commenced on February 11, 1968, was caused and
prolonged by the Company's discriminatory
discharge of Garcia in violation of Section 8(a)(1)
and (3) of the Act and refusal to bargain in good
faith in violation of Section 8(a)(1) and (5) of the
Act and thus was an unfair labor practice strike at
its inception. Accordingly, Respondent's refusal to
reinstate the strikers upon their application was an
additional violation of Section 8(a)(1) and (3) of the
Act.' 2
Tim REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
As we have found that Respondent discharged
Hector Garcia in violation of Section 8(a)(3) and (1)
of the Act, we shall order that Respondent offer to
Garcia immediate reinstatement to his same or
substantially equivalent position with full restoration
to seniority and other benefits he would have
enjoyed had he not been discriminated against.
Although we do not require that Respondent restore
its home center operations at the McAllen facility,
the record reveals that Garcia can and has
performed several other jobs at the facility.
Accordingly, for purposes of this section of the
Remedy, "same or substantially equivalent position"
shall be construed to mean any of the jobs at
McAllen which Garcia formerly performed as a
utility man. As Respondent has discriminated
against the unfair labor practice strikers by refusing
to reinstate them upon their application, we shall
order Respondent to offer them immediate
reinstatement to their former or substantially
equivalent positions without prejudice to seniority or
other rights and privileges, discharging if necessary
any replacements. Respondent shall also be required
to make Garcia whole for any loss of income he
may have been occasioned as a result of the
discrimination against him and make the strikers
whole for any losses in wages they may have
suffered as a result of the discrimination practiced
against them since April 19, the day of their
unconditional application for reinstatement.
Backpay in the case of Garcia as well as the strikers
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, plus interest
at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
"Having found that Respondent violated Sec . 8(aX3) by refusing to
reinstate the unfair labor practice strikers , we find it unnecessary to pass
upon the applicability of the principles set forth in N.L.R.B . v. Fleetwood
Trailer Co.. 389 U.S. 375; The Laidlaw Corporation, 171 NLRB No. 175.
Having found that Respondent has refused to
bargain in good faith with the Union , we shall order
Respondent to cease and desist from such conduct.
The violations of Section 8(a)(1), (3), and (5)
found herein are of the type that strike at the very
heart of the Act and warrant an order requiring
Respondent to cease and desist from in any manner
infringing upon the exercise of employee rights.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A.
4): California Lingerie Inc., 129 NLRB 912, 915.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By implying to employees that the Union was
responsible for their not receiving increased wages
and benefits and by making to them promises of
benefits to induce their withdrawal from the Union,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminatorily selecting Hector Garcia for
discharge because of his activities on behalf of the
Union, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(1) and
(3) of the Act.
5. By refusing to bargain collectively in good faith
with the Union, Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(1) and (5) of the Act.
6. By refusing to reinstate unfair labor practice
strikers upon their unconditional application for
reinstatement, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(l)
and (3) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Sweeney & Co., Inc., McAllen, Texas, its officers,
agents, successors, and assigns, shall take the
following action:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing
employees in the exercise of their Section 7 rights by
telling them that they will receive greater benefits if
they withdraw from the Union.
(b) Discouraging membership in or activities on
behalf of Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local 173,
or any other labor organization, by discriminatory
selection of union supporters for discharge, or by
terminating the employee status of unfair labor
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice strikers by denying them reinstatement
upon their unconditional application to return to
work, or by in any other manner discriminating
against an employee in regard to his hire, tenure, or
other terms and conditions of employment.
(c) Refusing to bargain collectively in good faith
with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local 173,
as the exclusive bargaining representative of all its
employees in the following appropriate unit:
All employees, including warehousemen and
helpers, truckdrivers and clerical employees
employed at Respondent's facility at McAllen,
Texas, but excluding all buyers, salesmen, guards,
watchmen and supervisors as defined in the Act.
(d) In any other manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form, join, or
assist Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local 173,
or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request bargain collectively in good faith
with the above-named Union as the exclusive
bargaining representative of the employees in the
heretofore described appropriate unit and embody
any understanding reached in a signed contract.
(b) Offer to Hector Garcia 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 of earnings he may have suffered as a
result of the discrimination practiced against him in
the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Offer to strikers (listed in Appendix B to this
Decision) who participated in the strike commencing
on February 11, 1968, immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges, and make
them whole for any loss of earnings they may have
suffered as a result of the discrimination practiced
against them in the manner set forth in the section
of this Decision entitled "The Remedy."
(d) Notify the above employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary in determining the
amount due as backpay.
(f) Post at its McAllen, Texas, warehouse, copies
of the attached notice marked "Appendix A." ' '
Copies of said notice, on forms provided by the
Regional Director for Region 23, shall, after being
duly signed by Respondent's authorized
representative, be posted by Respondent
immediately upon receipt thereof, in conspicuous
places, including all places where notices to
employees are customarily posted, and maintained
by it for 60 consecutive days. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
This Notice is Posted by Order of the
National Labor Relations Board
After a trial at which all sides .had the chance to give
evidence , the National Labor Relations Board found that
we, Sweeney & Co., Inc., violated the National Labor
Relations Act, as amended, and ordered us to post this
notice and to keep our word about what we say in this
notice.
The law gives you the right
To form, join, or help unions ; To choose a union to
represent you in bargaining with us; To act together
for your common interest or protection; and To
refuse to participate in any or all of these things.
The Board has ordered us to promise you that:
WE WILL NOT interfere with your rights.
WE WILL NOT tell you that Local 173, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO is responsible for your not
receiving increased wages and benefits.
WE WILL NOT promise benefits to get you to
withdraw from Local 173, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO.
WE WILL NOT fire you because of your activities on
behalf of Local 173, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO.
WE WILL NOT refuse to bargain in good faith with
Local 173, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, upon its
request.
WE WILL NOT refuse to let you return to work
because you engage in a strike protesting unfair labor
practices.
The National Labor Relations Board found that we
fired Hector Garcia because of his union activities and
"In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
SWEENEY & CO.
that we had not bargained in good faith with the Union
and that as a result, the employees who took part in the
strike on February Il, 1968, were unfair labor practice
strikers. It also found that the strikers were entitled to
have their jobs back in April, 1968 when the Union
notified the Company the strikers were willing to return to
work. Since the Company did not permit the strikers to
return to their jobs, the National Labor Relations Board
found this a violation of the National Labor Relations
Act, as amended.
WE WILL bargain in good faith with the Union.
WE WILL offer to Hector Garcia reinstatement to a
job similar to that he performed before he was
discharged.
WE WILL pay to Hector Garcia any wages he might
have lost because of his discharge with 6 percent
interest.
WE WILL offer reinstatement to those employees who
went on strike and who were not reinstated to their old
jobs or similar ones, and pay them, with 6 percent
interest for any wages they may have lost as a result of
our refusal to reinstate them when they applied.
WE WILL write a letter to any of the
above-mentioned persons who are in the Armed Forces
of the United States and tell them they can apply for
jobs after they are discharged.
Dated By
SWEENEY & CO., INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board ' s Regional Office , 6617 Federal Office Building,
515 Rusk Avenue , Houston , Texas, Telephone
713-228-4296.
APPENDIX B
Adolfo Cantu
Jose Castillo
Rafael de la Garza
Frank de Luna
Julian de Luna
Jorge Escobar
Jose R. Flores
Florentino Garza
Higinio Garza
Moises Garza
Rafael Garza
Rudolf Garza
Frank Gonzalez
Florentino Gonzalez
Adan M. Gonzalez
Raul Gonzalez
Samuel G. Guajardo
Armando Islas
Fidel Martinez
Juan Mata
Jose J. Menchaca
Martin Mendez
Alberto A. Morales
Nicasio Olvera
Raul Reyes
Sam Reyes
Zacarias Rocha
Fidel Salinas
Frederico Zuniga
Adan Morales
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Trial Examiner: The complaint in
Case 23-CA-2914 is founded upon a charge filed by
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, Local 173, hereinafter called
the Union , on December 21, 1967, and the complaint was
215
originally issued on February 5, 1968, and amended on
April 12, 1968. This amended complaint alleges that
Sweeney & Co., Inc., herein the Company or Respondent,
violated Section 8(a)(1), (3), and (5) of the Act. On
September 13, 1968, pursuant to an additional charge by
the Union, the General Counsel issued a complaint in
Case 23-CA-3079 against the Respondent alleging further
8(a)(1) and (3) violations - coupled with a motion for
consolidation with Case 23-CA-2914. Hearings were held
before me in Edinburg, Texas, on various dates in April,
May, and in October, 1968, and all parties were
represented by counsel and participated fully at the
hearings. Oral arguments were waived, but briefs were
filed and the same have been given due consideration.
Upon the entire record in this case and my observation
of the witnesses, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now and has been at all times material
herein , a Texas corporation , having its principal office,
warehouse and place of business at San Antonio , Texas,
with additional warehouse facilities at Laredo and
McAllen, Texas , where it is engaged in the business of
selling groceries , foodstuffs, drugs, sundries , and other
related material at wholesale . The McAllen warehouse is
the only facility involved in this proceeding . Respondent,
in the course and conduct of its business operations during
the past 12-month period , which period is representative
of all times material herein , purchased goods valued in
excess of $50,000 from points outside the State of Texas
which were shipped directly from such points to its
McAllen , Texas , warehouse. The complaint alleges, the
answer admits , and I find that the Respondent is an
employer engaged in commerce within the meaning of the
-Act.
11. 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(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged that the Company violated the Act by
various statements and conduct on the part of their
supervisors involving the soliciting of employees to
withdraw their support from the Union, threatening
employees with loss of certain economic benefits,
promising wage increases , improved vacations, and other
benefits if employees would cease their support for the
Union, and illegal interrogation of employees concerning
their union activities. It is also alleged the Company
discharged Hector Garcia on December 16, 1967, because
of his activity for the Union, and that the Company
engaged in bad faith bargaining by refusing to make the
Union a proposal on wages and union security provisions
(checkoffs), by unilaterally and without notification
closing its home center operations at its McAllen
warehouse , and thereby terminating the employment of
Hector Garcia. It is further alleged that a strike, which
commenced February 11, 1968, was caused by and/or was
prolonged by the unfair labor practices of Respondent,
and on or about April 19, 1968, 29 employees who had
engaged in the strike made an unconditional offer to
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work in their former or substantially equivalent
positions of employment , and that since on or about April
19, 1968 , Respondent had failed and refused to reinstate
such employees . It is alleged that on April 24, 1968,
Respondent had refused to reemploy Adan C. Morales
who had also engaged in the strike and had made an
unconditional offer of reinstatement .' It is also alleged
that said refusal to reinstate the employees was because
these employees had joined or assisted the Union or
engaged in union or concerted activity, and was therefore,
a violation of Section 8(a)(3) of the Act. The subsequent
complaint in Case 23-CA-3079, alleges that on or about
April 18 , 1968, the Company had job openings available
which had been performed by the strikers , but advertised
for and hired new employees , and that the Company
failed and refused to reinstate the strikers who had made
an unconditional offer to return to work.
Respondent is a wholesale grocery supplier , and for
purposes here supplying some 45 grocery stores in and
around McAllen , Texas , and in the Lower Rior Grande
Valley. The grocery stores served by the Company range
in size from fairly large supermarkets down to very small
stores . The Company has mainly three principles
departments in its McAllen warehouse installation -
I.B.M., grocery , and produce . The I.B . M. department has
four employees ,. and their main responsibility is inventory
control of merchandise in the warehouse and customer
orders and billing . It appears from this record that the
grocery and produce departments are two separate
operations . The produce department supplies stores with
fruits and vegetables . Donicio Villarreal is the manager of
this department , and there are approximately eight
employees under his direct supervision . The working hours
of this department are from 12 to 1 p.m . until 8 p.m. or 9
p.m., depending upon the workload on Sunday, Monday,
Wednesday , and Friday ; and from 7 a.m. until 4 p.m. or 5
p.m., depending upon the workload , on Tuesday and
Thursday ; and, on Saturday , from about 4 a.m. to 12
noon.
The grocery department has from 20 to 25 employees
working in two shifts since March 1966 , when the night
shift was added. The home center department , within the
grocery operations , carried such items as kitchen utensils,
towels, blankets , and similar type items . In this
department there was also a cigarette stamping
department which handled customer needs for cigarettes
and performed the required stamping of tax decals on
each package . As pointed out the employees in the
grocery department consist of order pullers, who take
customer orders and pull them from inventory and
prepare for shipment ; checkers and shipping clerks, who
do order pulling also but , in addition , check the orders
pulled to see if they are correct and load the merchandise
on delivery vehicles ; unloaders who unload box cars and
trucks with incoming merchandise and receiving clerks to
check the invoices ; and warehouse employees (and forklift
and jeep or towmotor operators ), who place the
merchandise into inventory at locations designated by
code number by the I.B.M. department ., There are also
billing clerks , who coordinate customer orders and
billings . The day shift in the grocery department is
comprised of from 10 to 11 employees , who begin work at
7 a.m. and work until 5 p.m., except on Friday , when they
work until 4 p.m. The night shift , comprised of
approximately from 10 to 11 employees , begins work at
'All employees participating in the February strike are listed in
Appendix A, [Omitted from publication.]
2:30 p.m. and works until 12 midnight, or sometimes to 1
or 2 a.m., depending upon the workload, on Monday
through Thursday. On Sunday, the night crew begins at 8
p.m. and works until approximately 6 a.m., or as late as 9
a.m., depending upon the workload.
In the spring of 1966, the Industrial Union Department
of the AFL-CIO, on behalf of the Union, commenced an
organizing drive among Respondent's employees at its
McAllen warehouse. In June 1966, the Union filed a
Petition for Certification seeking to represent these
employees, and in July 1966, a Teamsters Local moved to
intervene. A hearing was held in the Representation
matter on July 19, 1966, and on August 16, 1966, the
Board' s Regional Director issued his Decision and
Direction of Election, in which he found as an appropriate
unit the following: "All employees, including
warehousemen and helpers, truckdrivers, and clerical
employees, employed at the employer's facility at
McAllen, Texas, excluding all buyers, salesmen, guards,
watchmen and supervisors, as defined in the Act." An
election was then ordered and held on September 14,
1966, and a majority of the votes were cast for the Union.
On September 26, 1966, the Union was certified as the
collective bargaining agent for the employees in the
above-described unit. The Respondent and Union
commenced negotiations on January 10, 1967, and,
subsequently, held meetings in 1967 on February 6, March
1-2, April 4-5, July 11-12, August 3, October 13,
November 1 and 16, December 13, and on April 19, 1968.
The parties stipulated in the record as to the dates of the
negotiations meetings, the beginning and ending times of
each meeting and those who were present.
The initial issue in this case bears on whether or not
Ernest Hodges and Donald Bennett are supervisors or
agents within the meaning of the Act.'
Hodges has worked for the Company for approximately
7 years, and was employed as a shipping clerk. He worked
the day shift until March of 1966, when the night shift
was set up in the grocery department. Hodges testified
that his duties as a shipping clerk on the night shift
include the taking of orders from I.B.M. and laying them
out for the order-pullers, that he marks the door at which
they are to be loaded depending on the size trailer needed,
and that he spends "most" of his time checking the orders
out to make certain they are correct. Hodges states that
he seldom has to ask anyone on the night shift (from 8 to
10 employees) to pull orders because it is largely routine
work and each employee is familiar with his job. Hodges
testified there have been occasions where night shift
employees in the grocery department would ask for time
off, and if the reason was sickness or "something like
'The only statements in the Representation Case concerning this matter
- was testimony by the Respondent 's McAllen warehouse manager,
Warren Miller, to the effect that neither Hodges nor Bennett had the
authority to hire or fire or to effectively recommend such action . Little or
no other testimony concerning the duties or authority of either man was
adduced by any party . The Regional Director, in his Decision of Election,
made no specific finding as to their supervisory status and did not mention
either man by name . Neither man's vote was challenged at the
Board-conducted election , and wherein the Union was certified to represent
Respondent's employees . The undersigned is not bound by the conclusory
statements of Manager Miller in the representation proceeding , wherein no
effort was made by the Union to litigate such employees' supervisory
status , and may make an independent determination of the supervisory
authority of Hodges and Bennett based on the evidence as presented in the
proceeding before me . See Standard Products Company, 159 NLRB 159,
162. See also Leonard Neiderriter Company, Inc., 130 NLRB 113, 115,
Southern Airways, 124 NLRB 749, 750.
SWEENEY & CO.
that" he would let him go " automatically ," and if time-off
was requested for other good reasons he would generally
let the man off and consult with Plant Manager Miller
about it or call Miller . He also related in his testimony,
that the employees do not require any indication from him
as to the time to leave at the end of the work shift, and
they do not inquire whether they can leave. Hodges
testified he has no authority to hire or fire employees nor
to recommend any such actions , and his authority to
discipline employees merely extends to talking to them,
and if no mutual agreement is reached they will then see
Plant Manager Miller about it. Hodges admitted he has
"moved employees around" when work in the drug
department is caught up and extra help was needed
elsewhere in the warehouse, and on occasions he has also
informed employees that there is additional work to be
done before leaving . Rudy Garza testified he received
permission from Hodges to leave work on numerous
occasions , however , Hodges testified that when this
occurred , Garza always told him that Miller had given
him permission to be off work . Garza also testified
concerning an incident which occurred the latter part of
1966 when Hodges had asked him to move some charcoal
from a location in the warehouse . Garza testified he told
Hodges he was not going to move the charcoal as Homer
Isenberg had previously instructed him to place them on
the north side .' Both Hodges and Garza became quite
excited and annoyed over this incident , and Hodges then
informed Garza he was fired , but Garza replied that
Hodges could not fire him because he had been hired by
Isenberg . Garza testified that Isenberg then came upon
the scene and told Garza that Hodges had the authority to
fire him but also informed him that Hodges would not
"bother" him any more . Hodges stated that he did get a
little angry and he did tell Garza he was fired but, ". . . I
was a little angry and I didn 't have the right to say that,
and I went to see Mr. Isenberg about it a little later, and
he took care of it from there ." It appears that Garza
continued to work up until the strike in February of 1968.
Hector Garcia stated that in late 1965 or early 1966,
Hodges told him he was needed downstairs in the
warehouse to help on various jobs, and Garcia informed
Hodges he had to take care of the home center
department first . Plant Manager Miller then walked by
and Hodges told Miller , "Hector is getting pretty smart
with me." According to Garcia , Hodges then informed
him that if he did not like the way he was running the
warehouse "why don ' t you clock out and go home."
Garcia also testified that Miller then states , "Well, he is
your boss , he can tell you what to do, Hector ." Garcia
further related that he considered Hodges his supervisor
on the night shift , that Hodges instructed the employees
what to do and shifted employees from one job to
another.
The credited evidence clearly shows that Hodges
devoted practically his entire time on the night shift in
checking the orders to see if what has been pulled was the
correct order . As pointed out, in cases where a particular
order is not picked up off the desk , he will ask another
order puller to pull it , however , this seldom occurs for, as
Hodges testified , "It's more or less routine work and
everyone knows their job and they go ahead and do it."
'Up until January 1967, Homer Isenberg was Respondent ' s general
manager at their warehouse in McAllen , but since then Isenberg has been
in a semiretired capacity and only fills in when Miller is absent, and at
times makes some outside sales along with buying products for the frozen
food department.
217
Hodges further testified that he merely "asked" employees
to do things and did not tell them , and emphasized that
other employees would also ask the help of others in
pulling the various orders . It was only on rare occasions
when Hodges had to tell anyone what to do. While Miller
is not present at the warehouse during all of the night
shift (after 5 p . m. till midnight ), he, nevertheless , would be
contacted by telephone if anything out of the ordinary
arose . It is admitted that Hodges let people off for
sickness , but this is a routine policy involving no
independent discretion, but for most other reasons he
would contact Miller if he was still at the warehouse, and
if he was not there would call or discuss it with Miller.
There is no credited testimony that Hodges has any
general or overriding authority to let employees off from
work and only very rarely will he excuse an employee, and
then only under routine circumstances or where Miller has
already given his permission.
The only purported supervisory authority exercised by
Hodges occurred on two occasions involving Garza and
Garcia , as previously noted herein . Both instances
adequately show that Hodges had no authority to hire or
fire employees , or effectively recommend such action.
With tempers flying , Hodges informed Garza that he was
fired . Isenberg then stated that Hodges had such
authority , but then immediately informed Garza that
Hodges would not "bother" hurt any more . It appears to
me that this incident was a most obvious example to
employees that Hodges actually had no authority real or
otherwise , to fire anyone, and furthermore, no power to
effectuate such a recommendation as, in the final analysis,
Hodges' outburst was directly and quickly refuted by
Isenberg on the spot , and Garza continued to work. It is
clear to me that Hodges was never vested with any power
to discharge or to effectively recommend the same. The
other situation involving Hector Garcia happened so long
ago it is difficult to ascertain its exact valuation and
apparently happened prior to the establishment of the
night shift . However, it is noted that the incident occurred
in the presence of Plant Manager Miller and, in the final
analysis, Garcia was merely told that if he did not like the
way things were running he could go home . As a straw
boss, leadman, or acting as a group leader - Hodges was
attempting to exercise some immediate control in getting
other work done, and it appears to me that Miller's reply
and on the spot backing of Hodges, was necessarily in
accordance with such endeavors in efforts to maintain
some semblence of work schedule in the warehouse. What
is overriding , however , is the fact that this incident again
shows that Hodges did not have the authority to
effectively recommend discharge . Hector Garcia continued
to work in the warehouse until the home center
department was discontinued in late 1967, as detailed
hereinafter.'
'Hodges was originally hired on a weekly salary basis; however,
beginning in January of 1966, he was placed on an hourly rate because of
wage and hour purposes. Leland Harris, comptroller of the Company,
testified that the Respondent had encountered experiences with several
wage and hour audits and the types of employees subject to overtime His
duties included periodic examination of the payroll, and during such an
examination of the payroll in late 1965, Harris noticed that Hodges was in
the warehouse as a nonsupervisory employee, and it was directed that
Hodges be changed to an hourly rate. He stated that shipping clerks in
Respondent's warehouses in Laredo and San Antonio are also paid only on
an hourly rate It appears that Hodges is entitled to 2 weeks' vacation,
whereas other employees receive l week. The reason for this is that the
Respondent's practice has been, and was when Hodges was hired, to give 2
weeks' vacation to salaried personnel. Since Hodges was hired on this
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Bennett started working for the Respondent in
August 1965, and his initial duties were to call on
customers or accounts in the McAllen trade area. In
February 1966, Bennett was transferred into the McAllen
warehouse as the day shipping clerk. As to the duties he
assumed in the warehouse, Bennett testified as follows: "I
was more or less in charge of, I say in charge, of trying to
get trucks out every morning that were loaded, get the
frozen foods on them, see that the cheese and frozen food
was put on them, and to take care of pulling orders during
the day, and checking in merchandise that was returned."
Bennett was then asked about the authority in his job, and
he replied, "Well, by authority, I wasn 't given any
authority as for as telling anybody really what to do. I did
have a couple of men that helped me out on pulling orders
and different things, and I could ask them all the time.
They knew what they were supposed to do, and it was just
a matter of uniform work that had to be done ." Bennett
stated that he spent three-quarters of his time pulling
orders, checking returns, and checking out merchandise,
and the remainder of his time was spent checking and
assigning new locations for merchandise,' would also help
"hunt" merchandise, and did some minor maintenance
and repair work. As indicated by Bennett's testimony, he
has different employees helping him in various aspects of
his job. One employee helped him on returns, a couple
other employees helped in pulling orders, and another
employee would pull all home center items, and other
drugs, frozen food, cheese, and other types of
merchandise.
Bennett testified that in his duties as shipping clerk in
the warehouse he never was given authority to hire or fire,
and never recommended that anyone be employed or
discharged. He further related that when employees asked
for time off he told them to check with Manager Miller,
and had no authority to grant a time off request. Bennett
also testified he did not route the delivery trucks, and the
drivers had a regular schedule to follow and which was
posted in the warehouse. There was testimony by
employee Jose Flores that Bennett directed him to change
his truck route on a few occasions. Bennett testified that
Miller had told him to make a change in the delivery, and
he merely relayed this message to Flores. Miller
substantiated the testimony of Bennett, and denied ever
telling Flores that he had to change deliveries because of
instructions from Bennett. Hector Garcia testified that
when he was not busy in the home center department,
Bennett assigned him to various other jobs in the
warehouse, and stated that Bennett and Miller told him
where to work, and also related that Bennett assigned
other employees to different duties. Garcia admitted that
he never knew Bennett to hire or fire anyone.6
basis, he received this amount of vacation and, when changed to an hourly
rate , this benefit was not reduced under company policies Hodges' hourly
rate in December 1967 was 20 cents above the next highest pad employee
outside of other clerks . However, as also pointed out, he has been with the
Respondent longer than some employees on the crew and has additional
duties requiring more knowledge and skill than other employees on the
night crew . All employees on the night crew in the grocery department
receive a 20-cent-per-hour premium pay. It appears that Hodges' duties as
shipping clerk have not changed since the election in September 1966, and,
as aforestated . he and Bennett voted unchallenged in that election
following a Representation hearing.
'It appears that most or all location assignment in the warehouse is done
by the I.B.M. department , and Bennett ' s only job is to make a visual
inspection to see whether numbered locations are cleared.
'This record shows that Bennett was initially hired on a weekly salary
basis : but after being transferred to the warehouse his pay was changed to
any hourly basis. This was done when it was noted he was no longer a field
The contention by the General Counsel, in summation
of this phase of the case , is as follows:
Both Hodges and Bennett receive rates of pay
substantially in excess of all of the other employees
working on their shift - in Hodges' case, 45 cents per
hour and Bennett 's case , 70 cents per hour. Unlike all
of the other employees who receive only one week's
vacation, both Bennett and Hodges are entitled to a
two-week vacation which is the same entitlement as the
acknowledged supervisors. Both men responsibly direct
the employees working under them, including the use of
independent judgment in moving employees from job to
job on a regular and recurring basis . In addition,
Respondent' s managers have informed employees that
both Hodges and Bennett were supervisors and had
authority to discharge employees who failed to comply
with their instructions. The mere fact that there is no
evidence that such authority was actually executed does
not diminish the existence of the supervisory authority.
Section 2(l1) of the Act defines a supervisor as:
any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign , reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances , or effectively to recommend such
action , if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical
nature , but requires the use of independent judgment.
[Emphasis supplied.]
Where the evidence fails to show, as here, that a
purported supervisor possesses one or more of the
necessary statutory requisites, such a person cannot be
classified as a supervisor within the meaning of the
statutory definition.'
man but was in the warehouse and because of wage and hour requirements,
the Respondent changed him to an hourly basis with overtime , as it had
done with Hodges, as aforementioned . As pointed out the Respondent's
policy is that all weekly paid employees are entitled to 2 weeks' vacation
and that when for some reason they are changed to an hourly rate their
benefits are not reduced . In this respect Bennett testified , as far as he
knew, he was only entitled to 2 weeks . Bennett was never actually taken 2
weeks or was unaware that he would be so entitled . G. C. Exh 11(b) dated
May 1, 1966, has a notation describing Bennett 's classification as "Buyer
and Supr ." This exhibit is a payroll change notice signed by Homer
Isenberg . Isenberg testified that "Buyer and Supr" indicated a retail
supervisor whose duties were to call on retail stores and work with them
on advertising and any other help that they might need in the retail
operation . The only supervision duties were with the Respondent's
customers and had nothing to do with Respondent 's employees
'The Senate in reporting its amendment to include a definition of a
supervisor clearly showed its intention to be the drawing of a line between
supervisors that are truly management and minor supervisors having no
such connections . S. Rep . No. 105 on S. 1126, said.
In drawing an amendment to meet this situation , the committee has
not been unmindful of the fact that certain employees with minor
supervisory duties have problems which may justify their inclusions in
the act. It has therefore distinguished between strawbosses , leadmen,
set-up men, and other minor supervisory employees on the one hand,
and the supervisor vested with genuine management prerogatives as the
right to hire or fire, discipline , or make EFFECTIVE recommendations
with respect to such action . In other words the committee has adopted
the test which the Board itself has made in numerous cases when it had
permitted certain categories of supervisory employees to be included in
the same bargaining unit with the rank and file . Bethlehem Steel Co.,
65 NLRB 284 (expeditors); Pittsburgh Meter Co., 61 NLRB 880 (group
leaders with authority to give instructions and to lay out the work),
Richard Chemical Works, 65 NLRB 14 (supervisors who are mere
conduits for transmitting orders ), Endicott Johnson Co.. 67 NLRB 1342,
1347 (persons having title of foreman and assistant foreman but with no
authority other than to keep production moving) . . . ."[Emphasis
SWEENEY & CO. 219
It has been consistently and repeatedly held, in cases
dealing with determination of supervisors , that it was of
absolute necessity that the record clearly show that one or
more types of authority set forth in the Act be present in
order to prove that a person possessed a supervisory
position . It is likewise has been consistently held that the
intention of an employer to confer supervisory authority
upon an employee is insufficient absent a clear
announcement by him to said employees of such
authority.'
The foregoing considerations and the record as a whole
establishes that while Hodges and Bennett directed and
assigned other employees in the warehouse, such
discretion must be regarded as performance of routine
functions which do not require the exercise of independent
judgment . Furthermore, even though a few employees
were occasionally granted time off when Miller was not
available - they acted within a very limited scope due to
illness or other obvious reasons of necessity, and it is well
established that the sporadic exercise of such limited
authority does not show they are supervisors.
Cosby-Hodges Milling Company, 170 NLRB No. 50. As
pointed out by the Respondent , Cosby-Hodges concerned
shipping clerks, checkers, and shipping trucks and loading
foremen who, in instances , performed and possessed more
supervisory indicia than Bennett and Hodges , and the
Board found them to be leadmen . In UTD Corporation
(Union-Card Division), 165 NLRB No. 48, the leadman,
held by the Board to be nonsupervisory distributed and
checked out the quality of work of other employees,
instructed new employees , set up machinery, did
production work, and if an employee's work was not up to
standard the leadman would call this to the employee's
attention and submit a report on it. These leadmen,
among other things , passed out checks and computed
rates of pay for incentive work. The Board in UTD noted
that during the night shift there is on hand a night
supervisor, but the leadmen are given detailed instructions
by the day shift foreman . From the above the Respondent
points out we have a somewhat parallel situation in the
instant case , due to the fact that during the period of time
the employees work at Respondent' s warehouse when
Miller is not present , but is easily accessible by telephone,
places quite similar circumstances as having a supervisor
present while employees do clearly routine work. It is also
noted that the leadman in UTD made from 20 cents to 25
cents more than other employees.
In Corey Brothers, Inc., 162 NLRB 770, 115, the
Board was confronted with a similar warehouse operation
as is present in the instant case . One employee involved
was a shipping clerk (Biazi) whose duties were very
similar to those in the instant case . The Board held that
Biazi was not a supervisor as he only gave routine
supplied.]
See also N.L.R.B. v. Budd Mfg. Co., 169 F.2d 571 (C.A. 6k E. B. Law
and Son. 92 NLRB 826 Crown Corrugated Container, Inc., 123 NLRB
318.
'For example Sioux City Brewing Company. 86 NLRB 1164, where it
was held that an employee without authority to hire, discharge, or
otherwise affect the status of other employees of his employer was not a
supervisor; Calument and Hecla Consolidated Copper Co, 86 NLRB 126,
where it was held that group leaders without the statutory requisites were
not supervisors; and Warren Petroleum Corp.. 97 NLRB 1458, where it
was held that gang foremen who do not possess or exercise the power of
effective recommendation or responsible direction over a crew were not
supervisors. See, for example , Continental Oil Company, 95 NLRB 358;
George Knight and Co., 93 NLRB 1193; United States Gypsum
Company. 91 NLRB 404.
instructions in the warehouse and was not held responsible
for the overall functioning of the warehouse in the sense
he was not concerned with seeing that enough employees
were present , that shipments arrived or that the inventory
be kept at a given level , and that the directions he gave to
employees were ". . . usually dictated by events over
which he has no control." As to the second employee
(Bardwell ), the Board notes in footnote 14 of its decision,
a situation like that which Hodges had with Rudy Garza
where, in a heated conversation , the employee was told to
"go home"; however, this decision was overruled as in the
instant case , and the Board noted ". . We do not view
this incident as establishing authority in Bardwell to
discipline ; if anything , it suggests the opposite."
The intention of the parties is also significant . Insofar
as the Respondent is concerned , it has always considered
Bennett and Hodges as nonsupervisory , as well as the
other clerical employees. The credited testimony in this
record discloses that Hodges and Bennett were never
authorized by the Company to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or
discipline employees or to responsibly direct them, or to
adjust their grievances or effectively recommend such
action ; that they devoted their time mainly to checking
and pulling orders or merchandise , and whatever requests
they made to coworkers were of a mere routine nature
which required the exercise of no independent judgment or
discretion in the performance of their duties sufficient to
warrant a finding that they responsibly directed the work
of other employees.
Upon the entire record in this case , I find that at no
time during their employment with Respondent were
Hodges and Bennett supervisors within the meaning of the
Act.
The General Counsel, in these complaints, alleged that
Hodges and Bennett , in addition to being supervisors of
Respondent, were its agents as well . The only testimony
bearing on agency is a meeting or conference in December
1967, at which Bennett and Slim Garza talked with
Respondent's attorney, Scott Toothaker, and wherein they
sought his advice regarding the Union. Attorney
Toothaker advised them he could not assist or give any
advice on this because of his employment with the
Company and they would have to seek assistance
elsewhere . As pointed out the testimony of both Hodges
and Bennett reveals that any contact they made with
employees, or any actions they took, were purely a
personal and independent action on their part, and there is
no evidence that Respondent knew of these matters except
for the conversation Bennett had with Toothaker and
there is no evidence this information was transmitted to
Respondent. The evidence fails to show that any of their
activities were done under the authority, either actual or
apparent, conferred upon them by the Respondent,
whether in advance or by subsequent ratification. See
Lexington Chair Co., 150 NLRB No. 1328; General Tire
and Rubber Co., 149 NLRB 474; Aero Corp., 149 NLRB
1283; Electric Motors & Specialties, Inc., 149 NLRB
1432; and Superior Tool & Die Co., 132 NLRB 1373. In
accordance with my findings and discussions above, I do
not hold the Respondent responsible for any acts or
statements of Hodges and Bennett.
Donicio Villerreal is in charge of the produce
department within the McAllen warehouse, and
admittedly a supervisor under the Act. Employee
Armando Islas testified that in early February, 1968,
Villerreal told him that Homer Isenberg had made a
mistake in not giving the men in the produce department
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the night premium pay , and the Respondent 's employees
in San Antonio were already getting 2 weeks ' vacation,
while those in the McAllen warehouse were only getting 1
week , and Villerreal went on to say that he would try to
get Islas 2 weeks ' vacation , better insurance , and the night
premium , if he voted the Union out. Villerreal admitted to
the conversation with Islas, and that he had told him the
employees in San Antonio and Laredo were receiving 2
weeks ' vacation and had gotten a credit union and other
benefits such as a better insurance policy , and that the
men in McAllen would get the same once matters got
straightened out. He further admitted telling Islas that
Isenberg told him that he had made a mistake in not
giving the night crew in the produce department the same
night premium that had been given to the employees in
the grocery department . Villerreal denied saying anything
about the men voting the Union out, but admitted stating
as long as the Union negotiations were going on their
hands were tied and nothing could be done about it but
once the matters got straightened out in McAllen, they
would be able to do the same thing that had been done in
San Antonio and Laredo.
Sam Guajardo testified that in February 1968,
Villerreal also spoke to him about the Union, and
informed Guajardo that he had talked to Miller about
getting the produce department a 20-cent night premium
pay, but that Miller had answered saying he could do
nothing as his hands were tied because of the negotiations,
and when they were back to the way they were before
maybe then the produce department would receive the
20-cent night premium pay . Villerreal stated he informed
Guajardo that he had seen a letter the Company had
received from the Union , wherein the Union had not
accepted the 20-cent increase . He further told Guajardo
that since the Union had rejected the 20-cent increase
there was nothing the Company could do about it.
Villerreal ' s statements to Islas about increases in
benefits which had been granted in San Antonio and
Laredo where no union represented Respondent's
employees , and then contrasting it with the situation in
McAllen where no increase in benefits had been yet made,
and relating this to the presence of the Union as the
bargaining representative, clearly is designed to hinder the
effectiveness of the Union , and indicating the desired
benefits would be obtained when the employees ceased
their union activities . The above must be deemed a
solicitation of an employee to cease his activity for the
Union and with the promise that in return employees
would receive increased wages and other benefits . This is
violative of Section 8(aXl) and I so find.
The General Counsel argues that the statement
involving Villerreal and Guajardo is another instance of
attempting to dissuade employees from supporting the
Union by offering a promise of a significant increase in
their wages if the Union was dropped . I am not in accord
with this contention , and find otherwise . Even accepting
Guajardo ' s testimony as to what transpired on this
occasion - it still falls short of an illegal interference by
the Company . In essence , Villerreal merely informed
Guajardo that the Company could not consider the
question of premium pay in the produce department while
the Respondent and Union were still mutually engaged in
negotiations.'
'For background purposes the General Counsel introduced statements
and documents to show that the Company was firmly opposed to the
Union from the beginning and to show that such opposition was a
recurring theme through the preelection period . G. C Exhs . 2, 4. 6, and 8.
General Counsel alleges that Respondent violated
Section 8 (a)(3) and (1) of the Act by terminating the
operation of its home center department on or about
December 1, 1967, and by terminating the employment of
Hector Garcia on December 16, 1967, who was mainly
employed in the home center department.10 The
Respondent argues that the Company had valied economic
considerations for closing the home center department,
and since Hector Garcia was the employee in charge of
the home center spending almost all of his time there, and
with the closing of the department he no longer had a job
and was accordingly terminated.
Hector Garcia started working for the Company at its
McAllen warehouse in August 1959. Between 1959 and
1963 his main job was placing state tax stamp on
packages of cigarettes , and he also worked all over the
warehouse handling various types of jobs . In 1963,
Respondent installed a cigarette stamping machine which
applied a decal tax stamp to the cigarette packages and
resulted in a substantial reduction in the amount of time
that it took to stamp the cigarettes . At that time, in
addition to his job of stamping cigarettes , Garcia was
given the additional responsibility of taking care of the
home center department , and he also was told that upon
finishing work in home center he was to assist the other
men in pulling grocery orders and unloading railroad cars.
It appears that between 1963 and 1967 , in addition to
stamping cigarettes and taking care of the home center
department , Garcia worked at virtually every job in the
warehouse . Garcia also operated various pieces of
equipment in the warehouse including the forklift for
stacking incoming merchandise and the towmotor which
was used in filling orders . After the Union began
organizing at the Company , Garcia took a very active
part , and he was the observer for the Union at the
election conducted on September 14, 1966 , and following
the election Garcia was also one of the employee members
of the union negotiating teams which conducted the
bargaining negotiations with Respondent , and which
started in January 1967 , as aforestated.
Garcia testified that in 1967 he was classified as an
order puller and was paid at the rate of $1.40 per hour,
which was the same rate as all of the other order pullers,
and there were approximately 10 or 12 other order pullers
working for the Company in its McAllen warehouse. He
stated that all during 1967 his duties remained the same,
that he was working a 52-hour week , that during the week
he would spend about 7 hours operating the cigarette
stamping machine, and his duties in the home center
department would take approximately 2 to 2 1 /2 days,
running about 18 to 20 hours scattered throughout the
week . Although Garcia was the only man on the day shift
handling the home center operation , two employees
working on the night shift , Jorge Escobar and Fidel
Martinez, also spent some of their time pulling orders in
the home center department.
Since this activity occurred , prior to the 10(b) period , no contention is
raised that such action be found to constitute an unfair labor practice, but
is submitted in an attempt to show Respondent 's subsequent actions in the
10(b) period and to disclose the degree of illegal activity followed by
Respondent since the initiation of the organizing attempt on behalf of the
Union. In these respects, I have fully considered the same in arriving at
my findings and conclusions herein.
"It is further alleged the Respondent terminated the operation of the
home center department and the employment of Hector Garcia without
having notified or consulted with the Union - violative of 8(aX5) of Ike
Act.
SWEENEY & CO.
During his period of employment he was never
discharged , suspended , laid off or given a written warning
about the way he was performing his work , and he never
received any complaint about the way he did his work.
Garcia testified that on one occasion Miller complimented
him on obtaining a new customer for the Respondent.
This record discloses that sometime prior to October
1967, a decision was made by the Company to close the
home center department in the McAllen warehouse, and
Miller received a letter from Respondent 's president,
dated October 16, 1967 ,11 advising him to arrange to
deplete the home center merchandise and have customers
place their orders from the San Antonio warehouse. The
letter sets out the basic business reasons and consideration
for making this change , and it also related to the
discontinuance of the cigarette stamping operation in the
McAllen warehouse . Miller then began making
arrangement to close the home center , and in late
November or early December , 1967, the merchandise in
the home center department at the McAllen warehouse
was gradually sent back to San Antonio and, of course,
Garcia was well aware of these events as he handled the
packing and other related works in connection with the
move . By letter dated November 30, 1967 , the Company
notified the Union it would discontinue the home center
and cigarette departments at McAllen , and that such
action might result at the permanent reduction of one or
two employees.' _
Miller testified that Respondent did not believe it was
doing a good job servicing its customers with home center
items , for there were only about 1,500 items in the home
center department in McAllen , whereas San Antonio
carried a much larger supply in their home center
department , and at times customers would have to make
separate orders from San Antonio and from McAllen. He
stated the San Antonio warehouse had a separate order
form which made it easier for customers to order from,
while the McAllen catalogue had its 1 , 500 items mixed in
with its other items making it difficult for the customers
to make their orders and this resulted in customers
receiving some shipments from McAllen and other
shipments directly from San Antonio , and the double
inventory was also costly . Miller further testified that
another consideration which prompted discussion to close
the department was that in the spring and summer of
1967, Respondent lost the business of three of its large
home center customers , and the three of four replacement
customers of stores had much smaller operations or
demands for home center merchandise . Miller also stated
that both the McAllen home center department and the
Laredo home center department were closed in December
1967.
On December 16, 1967, Garcia was called into Miller's
office, and was then informed that due to the closedown
of the home center department , the Company felt that
they no longer needed him . Garcia was given two checks
- one for the balance of the week then due him and the
other for 2 weeks pay in lieu of any notice of discharge.
Miller stated that the discharge did not have anything to
do with the Union , and Garcia said that it did as he could
do any kind of job in the warehouse.
Manager Miller testified that Garcia spent from 70 to
75 percent of his time in the home center department, that
at the time of discharge he did not have a job opening for
Garcia , and between December 16, 1967, and February
"G. C. Exh. 13.
"G C. Exh. 14.
221
10, 1968 , he did not hire any employee for warehouse
work.
On September 28, 1966 , the Union requested the
Company to bargain with it and on October 12, 1966,
Respondent , through its then attorney , Theo . F. Weiss,
submitted some of the information which had been
requested by the Union ' s telegram concerning the
commencement of bargaining . On December 6, 1966,
Toothaker notified the Union that he would handle the
negotiations , and it was ultimately agreed bargaining
would commence on January 10, 1967 . The main people
negotiating for the Union were Franklin Garcia, and
Harold Shapiro - International Representative for the
Union ." Bennie Campos , Hector , Garcia , and Sam
Guajardo were also present for the Union at most of the
negotiating meetings . Representing the Company were
Attorney Toothaker and Jarvis along with Plant Manager
Miller.
At the first negotiating meeting on January 10, 1967,
the parties started out by making opening statements. 14
The Respondent offered the offices, of Attorney
Toothaker as a place to meet , and indicated that although
its negotiating team had the authority to negotiate, any
final contract would have to be ultimately approved by the
Board of Directors and that all agreements were tentative
until the entire contract was resolved . The Union
responded that all agreements were also tentative and final
agreement would have to be approved by its membership.
The Company stated they were opposed to a contract
being retroactive to the date of certification , and stated
the Respondent was also opposed to a maintenance of
standards clause on the basis that the collection of dues
was union business . The Union asked that the Company
submit a counterproposal on this subject matter. The
parties then discussed the various clauses contained in the
Union's original proposal , but all agreed to hold economic
items until the latter part of the negotiations. The
Company informed the Union that its proposal concerning
grievance procedure was too involved because of the size
of the unit and the Union agreed to submit another
proposal on this item . Relative to arbitration, the
Company stated it would like to have a clause whereby
the selection of the arbitrator could be by some other
method than through the Federal Mediation and
Conciliation Service or the American Arbitration
Association , and suggested the possibility of using retired
judges as arbitrators . After a discussion on the hours of
work proposal , the Union thought its proposal was not
adequate and stated it would resubmit different language,
and in discussing the discharge and suspension article, the
Respondent stated that such matters could be inserted in
the work rules and not in the contract . The Company then
informed the Union that they hoped to negotiate a
contract without a seniority clause. At this initial meeting
the parties also mentioned or discussed leave of absence
- jury duty , funeral , and pregnancy leave , 16 vacations,
laundry and tools , bulletin boards, union visitation,
separability, management rights - the Company wanted
a more detailed clause, strikes and lockouts, and health
and welfare provisions . This first session can be classified
"Shapiro replaced Franklin Garcia on the Union's bargaining team on
October 13, 1967
"By this time the Union had submitted its original proposal - G. C.
Exh. 30.
"The Respondent advised the Union that the Company's policy was to
pay full time for employees who were off on jury duty, and its policy was
to allow time off without pay for the attendance at funerals.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a meeting for general discussions, questions and
answers from both sides, a session where information was
sought and given, and various clarifications were also
ascertained in order to make substitute proposals, and no
definite contract agreements , as such, were reached.16
At the next meeting on February 6, 1967, the parties
discussed Respondent's letter of January 26. Respondent
informed the Union that the increase had been put into
effect, and the Union stated that it had no objection to it.
The Company then submitted its counter-proposals on
preamble, intent and purpose, union visitation,
management rights and strikes and lockout - General
Counsel's Exhibit 32, and a discussion followed on these
subject matters. The Union again insisted on a
maintenance of standard clause and the Union objected to
the Respondent's proposal on union visitation. The
Respondent wished to include the Union as certified in the
agreement clause , but the Union only wished to include
the local union. The Union inquired about the status of
two or three employees and wanted to know how they
were classified. No contract agreements were reached in
this meeting.
On March 1 and 2, 1967, the parties held the next
negotiating sessions , and considerable time was spent in
discussion on various employee classifications. The Union
contended there were excessive classifications and
proposed the number be reduced." In order to prepare its
seniority proposal, the Union requested an up to date list
of employees and wage rates. The Company then prepared
and presented to the Union such a list - General
Counsel's Exhibit 33. The Company also presented to the
Union its counterproposal on jury duty, vacations, bulletin
boards, separability, health and welfare, leave of absence,
arbitration, grievance procedures, hours of work,
miscellaneous , holidays, and term of agreement
General Counsel's Exhibits 35(a) through 35(k). The
Union then presented an economic proposal. The Union
proposed that all employees receive a 10-cent
across-the-board increase , with certain classifications such
as over-the-road truckdrivers receiving $1.90 per hour;
local truckdrivers $1.70; I.B.M. $1.70, except for the
leadman, who would get $2.20; shipping clerks $1.85; and
that employees Lamas, Hodges and Bennett , together with
eight other employees, should be red circled in the
warehouse, and other clerks were to be red circled." The
Union also asked that the Company pay a night premium
rate for those employees on the night shifts, that the
health and welfare plan be paid entirely by the Company,
and also requested two additional holidays. The Company
pointed out the employees had just received an increase in
February, as aforestated, and that the Union's proposal
was fairly high, but that it would take it into
consideration with other economic issues . The Union
indicated that it was talking about a 1-year term, and
Respondent stated that it was not opposed to a 1-year
term, but thought that a longer term would be more
satisfactory. The Union informed the Company that it
would make further and other counterproposals. On or
about March 7, 1967, the Union delivered to the
Respondent the Union's new counterproposal which was
"On January 26, 1967 , the Company wrote the Union regarding what
Respondent proposed to do as to the increase in the federal minimum
wage, which was to become effective February I, 1967 The Respondent
proposed to maintain the same differential that an employee was then
receiving over the minimum wage after February 1. The letter stated that
the Company was willing to meet and discuss the matter , and unless
notified otherwise the Company would assume the Union concurred with
the increase G. C. Exh. 31.
intended to include all those items which were still open
and those items which were agreeable. General Counsel's
Exhibits 36 and 37.
At the negotiating sessions on April 4 and 5, 1967, the
parties discussed the agreement clause as proposed by the
Company and a mutual agreement on the same was
reached. A discussion was had on management rights as
proposed by the Company, and it was agreed that "just
cause" would be incorporated into the language. Some
partial agreements in language were also reached on the
intent and purpose clause, on the hours of work clause,
and on clause involving holidays. The parties also
discussed the discharge and suspension proposal of the
Union, and the Union withdrew its proposal with the
understanding that the right of Respondent to discharge
employees for good or just cause would be taken care of
in the management rights clause and in the work rules.
The parties could reach no agreements in respect to health
and welfare, premium pay on the 6th and 7th day of
work, arbitration, maintenance of standards, union
security, and call-in pay or overtime. The Union's
counterproposals of March 7, as aforestated, contained no
clause or provisions relating to seniority."
On July 11 and 12, 1967, the parties again assembled
for negotiations. They initially discussed language in the
wage proposal, and were able to reach agreement on such
but nothing on the rates. The grievance and arbitration
procedure were also discussed from the various proposals,
and some limited agreements were reached in these areas
subject to further counterproposal by the Company.=6 On
July 12, 1967, the parties talked about certain employees
the Union had questions on, and the leave of absence
proposals were then discussed with a few limited
agreements reached on this item. It appears that there was
also some limited accord reached on the change of
ownership clauses and proposals.
At the negotiating meeting on August 3, 1967,
arbitration proposals were again discussed (Section 1 had
been agreed to), and the Company presented a counter to
Section 2 - G. C. Exh. 59. The Company stated this was
an agreement which had been reached between the Union
and another company and thought it would work at
Respondent's company. The Union wanted to "hold" this
proposal. The parties then discussed the open item in the
change of ownership in the union proposal, Section (b),
and the Respondent stated that it had previously agreed to
Section (a), but was still opposed to the Section (b) part.
Discussions followed on whether or not supervisors could
work under certain situations and the Company submitted
"Under the Union's proposal the employees were separated into three
separate occupational groups: warehouse , truckdrivers and clerical. The
Company took the position that very few employees carried one
classification for a full day, and as a result there would be an overlap in
some of the classifications.
"The Union contended that certain employees had received prior wage
increases "wa)I out of line" in comparison with other employees in the
same classification - and these were the employees "red circled."
"The parties agreed to meet again on May 15 and 16, 1967 but these
meetings did not take place Prior to that date , Respondent was in contact
with the Union and it was suggested those dates be set for other
negotiations (Elsa Canning Company). It appears that the parties were
pushing for negotiations in Elsa Canning and it was then agreed to meet
on May 25; but this was also postponed due to conflicts in schedules in
other negotiations, and there were other similar and legitimate
postponements , as the record adequately reflects.
"In talking about grievance and arbitration the Company informed the
Union that it would accept either of the proposals which had been
previously agreed to between the parties in the Valley Co-Op Mill
Contract or the Tex-Steel Contract.
SWEENEY & CO.
a counterproposal on this - General Counsel's Exhibit
58, but no agreement was reached. Hours of work was
then-brought up, and by the Company making a few
changes to satisfy the Union, agreements were reached on
sections 1, 3, and 5 of General Counsel's Exhibit 35(i).
The Union agreed to overtime pay after 40 hours and the
method of payment. There was no progress on union
security, but the Company agreed to compensate
employees for 2 hours under call-in pay. The Union had
originally requested 8 hours so no final agreement was
reached. Discussions were also had on time and one half
for all time in excess of 8 hours, time and one half for
holiday work, and split shifts, but no accord reached.
Some mention was then made of the economic proposal
previously submitted by the Union, as aforestated, and the
Company replied that they would make an economic
proposal later."
The first topic taken up at the meeting on October 13,
1967, was the matter of insurance and the type of
coverage the Company was providing and its cost. Since
this was the first negotiating meeting for the Union's
International Representative, Harold Shapiro, it was
suggested the parties review the .entire proposals in
negotiations up to date to ascertain what had been agreed
upon and what were the open items and what were the
economic and noneconomic items. The parties then
discussed union visitation, jury duty, management rights,
bulletin boards, separability, holidays, leave of absence,
grievance procedure, and hours of work, and by
amendments agreements were reached on these topics with
minor exceptions. On the matter of grievance procedure
only one section of the proposals was left open, and there
were also a few details to work out on the leave of
absence subject matter. The parties also reached
considerable accord on arbitration as proposed by the
Company, but the Union wished to get additional
information on this. Vacations and separability clauses
were also mentioned, but no final agreements were
reached. The Union then presented another economic
proposal which was as follows: Wage classifications with a
10-cent across-the-board increase applied to each
classification; 2 additional holidays - the Company was
presently giving 5; vacations - I week after 1 year, 2
weeks after 5 years, 3 weeks after 15 years, 4 weeks after
25 years; and on health and welfare the Company was to
pay the entire cost of the Union's plan. The Union stated
that if the parties could agree on the above package with
the inclusion of a provision on union security -- then the
balance of the noneconomic items still in dispute could be
settled. The Company replied that this economic proposal
was "pretty steep," and the Union requested a
counterproposal. The Respondent then presented its
economic proposals and it consisted of a 2-cent-per-hour
wage increase, the same holidays as presently exist, 1
week's vacation, and agreed.to continue the present health
and welfare plan - G. C. Exh. 48. The Union expressed
their dissatisfaction with the Respondent's
counterproposal, and then inquired as to what would
happen with wages on February 1, 1968, when the federal
minimum wage would he raised to $1.60 an hour, and
Shapiro testified he was never able to get an answer to
this question. The Union then stated it would place the
Respondent's economic offer before the membership of
the Union for a vote. Shapiro testified that at the
"For several good and legitimate reasons the parties were unable to
meet until October 13, 1967, and in the interval the Company supplied the
Union with some additional information - G C. Exh. 46.
223
membership meeting this proposal was
unanimously rejected.
At the meeting on November 1, 1967, the parties began
discussion of the grievance procedure, as contained in
General Counsel's Exhibits 37 and 35(h) and reached
agreement on the entire grievance procedure article. The
Union agreed that 92nd Judicial District Court could
select arbitrators for matters in dispute as proposed by the
Company, and as result the parties reached total
agreement on the matter of arbitration. The differences on
leave of absence proposals were then taken up and mutual
accord on this item was nearly attained. The Union's
proposal on change of ownership was discussed next, and
after the Union withdrew the section (b) part which had
been open, this subject was settled and agreed to. The
parties then discussed hours of work, agreed to part of it,
leaving one section open. It appears that the separability
proposal was also discussed and then agreed to. Overtime
proposals entered into the negotiations, and the Company
agreed to pay time and a half after 40 hours, but would
not pay overtime for work performed on the 6th and 7th
day of any week. The Union then inquired as to the
Respondent's position on possible wage increases and their
position after February 1, 1968. The Company replied
that they were not in a position to offer any more than
contained in its counterproposal made on October 13,
1967, and Shapiro stated he was asking about the
"differentials" to be maintained after February 1, 1968.12
Shapiro testified that he also inquired as to the status of
employees working from midnight to 7 a.m. The Union
wanted these employees to receive a night shift differential
in pay similar to employees in the grocery department,
and who worked from 2 p.m. until midnight. Shapiro
related that the Company regarded the hours from 2 p.m.
until midnight as more disruptive than the shift from
midnight to 7 a.m. Shapiro then stated in clear terms that
the Respondent was not bargaining in good faith and the
meeting adjourned.
At the next meeting on November 16, 1967, a
representative of the Federal Mediation and Conciliation
Service attended, by mutual consent of the parties, and
since this was the first meeting for the Mediator he asked
both parties to review the status of the contract, listing the
remaining open items, agreed items, and separating the
items into economic and noneconomic items. The main
items still open were leave of absence, successorship,
no-strike, no-lockouts, miscellaneous, term of contract,
maintenance of standards, unit work, union security,
waiver of bargaining, vacations, holidays, hours of work,
health and welfare, and wages.23 The parties then entered
into a discussion on leave of absence when a dispute arose
over the length of notice to be given on the clause relating
to leave for an employee for Union reasons. The
discussion became quite heated, and finally the Mediator
suggested separate meetings. After their separate meetings
the parties returned for joint negotiations and the Union
accepted the Respondent's proposal pertaining to strikes
and lockouts and also agreed to several sections in the
miscellaneous proposal - General Counsel's Exhibit 35(j).
The Union then again raised the question about the
"Shapiro was referring to what the Respondent 's position would be if an
employee , presently making more than the minimum , would continue to
make the same amount above the minimum after the minimum was
increased in February 1968.
"There had been several extensive agreements in some of these subject
matters, as aforestated, but if an article or proposal had any disputed
section - it was marked open.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
differentials after February I, 1968, and the Company
answered that the wage increase previously submitted to
the Union would be absorbed by the increase in the
minimum wage as of February 1, 1968, and this meant
that employees who were getting less than $1.60 would
receive $1.60 in February, 1968, and on those employees
receiving more than $1.60 now, any increase would have
to be considered after that time. The Union then made
another revised economic proposal which was on a 1-year
basis with union security and checkoff; proposed one
additional holiday instead of two; 2 weeks' vacation after
5 years, 1 week after 1 year, 10 cents across-the-board
increase effective on signing of the contract; and a 21-cent
increase on February 1, 1968; night-shift premium for
seven employees; agreed to Respondent's health and
welfare insurance program; and proposed time and a half
for holiday work. The Company told the Union they
wanted to "put a pencil" to this revised proposal and
Respondent's officials in San Antonio were not
immediately available.
At the next negotiating meeting on December 13, 1967,
the Company had anticipated some discussion with the
Union about the home center department closing and its
letter of November 30, as aforestated, but the Union did
not raise the issue nor mention the letter. The Company
informed Shapiro that they had studied his last revised
economic proposal, but they were resubmitting the
Respondent's economic proposal made on October 13,
1967, and for a 1-year contract. The Union again asked
what would happen on February 1, 1968, and the
Company replied that those employees getting less than
$1.60 an hour would be raised to $1.60 an hour beginning
February 1, 1968. This meeting then adjourned.
By letter dated January 19, 1968, the Company
contacted Shapiro relative to February l when a minimum
increase was required by the Fair Labor Standards Act.
The letter stated that Respondent proposed to maintain
some differential resulting in an across-the-board increase
of 20 cents per hour for all employees. The letter was for
the purpose of advising the Union of this and inviting any
comment which they might have and stated the
Respondent was willing to meet and discuss the matter.
The letter also stated that since the effective date of the
amendments was February 1, 1968, the increases should
be put into effect at that time, unless they heard
differently from the Union by January 31, 1968. G. C.
Exh. 52. By letter dated February 3, 1968, Shapiro
informed the Company that the Union did not concur.
The Respondent was then notified by its attorney that the
Union had not concurred and advised that no change in
the wage structure should be made at that time, except
that all wages under $1.60 per hour must be increased to
$1.60 as of February 1, 1968, as required by law. On
February 8, 1968, the Respondent tried to call Shapiro
about this matter at his Brownsville, Texas, office, but he
was not in. Respondent's attorney, Scott Toothaker,
testified he then informed the Union's office in
Brownsville that he would talk to anyone in the office and
did speak with Dagaberto Barrera, and Barrera informed
him that there was no way to get in touch with Shapiro.
Barrera then asked what the problem was, and after an
explanation Barrera replied he could see no objection to
going ahead and giving the increases under the
circumstances, and the increases were thereafter
implemented. _'
"At the time in question Barrera was admittedly an agent of Local 173.
As indicated earlier herein, the employees went out on
strike on February 11, 1968, and on April 5, 1968, the
Company received a letter from the Union requesting the
resumption of negotiations.
At the negotiating meeting on April 19, 1968, the
Union inquired if the Company had changed its position
on vacations. The Company replied it was still offering
the same, and a discussion then followed concerning the
qualifying date for vacation eligibility. The Respondent
also maintained that every employee should receive the
same vacation - l week. The Union then asked whether
the 2-cent across-the-board was still on the table, and
Respondent stated it was not. It appears to be the
contention of the Company that it was absorbed by the
federal minimum increase as of February 1, 1968, and so
informed the Union. The Company also reminded the
Union that all employees received a 20-cent
across-the-board increase on February 1, 1968. The Union
inquired as to whether Respondent was still refusing to
grant the checkoff, and Respondent again restated its
position concerning this item. The Respondent then stated
they would submit a new proposal on the basis that all
noneconomic items could be agreed to. Accordingly the
Company offered a 1-year contract, proposed that it
would grant another one-half day paid holiday, that it
would retain the present vacation schedules with language
conforming with the existing policy, that it would continue
its health and welfare program, and would grant a 5-cent
night premium to the produce department. Shapiro stated
that he was "shocked" by this proposal, and informed the
Company they were attempting to get a contract by
merely paying $680. The Union then presented a
counteroffer proposing the following: Six cents increase
across-the-board vacations in the amount of 1 week after
1 year, 2 weeks after 7 years; accepted the Company's
insurance proposal and 5 cents differential for the produce
department; requested an additional half day holiday; and
reasserted its proposal on the checkoff. Respondent stated
that the Union's counteroffer was unacceptable. Shapiro
then read a statement terminating the strike - with all
boycott and picketing activity, and unconditionally offered
the strikers back to work. The Company replied that the
strikers had been permanently replaced. Shapiro then
stated the Union would drop its demand for a half a day's
holiday prior to New Years. The Company replied this
would not break the impasse.
Final Conclusions
Turning first to the allegations concerning the closing
of the home center department and the termination of
Hector Garcia. The economic factors, as aforestated,
make it clear that the operational problems which
Respondent encountered in attempting to adequately
supply its customers out of the McAllen home center
department, and which it could not effectively continue
under sound business practices, must be deemed the
dominant, compelling, and controlling reasons for closing
the department. This record clearly shows that the home
center department required double work in many
instances, was costly to operate, and that it was extremely
difficult for stores or customers to place orders due to the
fact that this department in McAllen had limited supplies
and inventories. In view of the undisputed fact that
economic reasons for the closing existed, coupled with all
the other events, evidence and circumstances in this
record, I cannot find that the closing of the home center
department was in any degree discriminatprily motivated.
SWEENEY & CO. 225
See Druwhit Metal Products Company, Etc., 153 NLRB
346; Cumberland Shoe Corporation, 156 NLRB 1130.
The fact that I have found one independent 8(axl)
violation involving Supervisors Villarreal and Armando
Islas , as previously detailed herein, does not justify a
finding of antiunion motivation so strong as to outweigh
the controlling and valid economic considerations.
Cumberland Shoe Corporation, supra.
In N. L.R. B. v. Darlington Manufacturing Company,
380 U .S. 263 , the Supreme Court held , inter alia, that a
permanent and bona fide partial closing of a business is
an unfair labor practice under Section 8(aX3) of the Act
only if the closing was "motivated by a purpose to chill
unionism " in the remaining segments of the business, and
the employer reasonably could have foreseen that the
closing would have such an effect . Moreover, as the
Supreme Court clearly indicated in Darlington permanent
closing of part of an employer ' s business even though
motivated by a desire to thwart the unionization of the
closed operation , is not an unfair labor practice unless
there is proof as well that the closing was ". . . motivated
by a purpose to chill unionism in any of the remaining
plants of the single-employer and the employer may
reasonably have foreseen that such closing would likely
have that effect." I submit that there is lacking a
preponderance of evidence in the instant case which would
support a finding that the closing of the McAllen home
center department was motivated by a purpose to chill
unionism at Respondent's other plants . In making this
determination I am guided by the Supreme Court's
holding in Darlington that it did not suffice to establish
that unfair labor practices charged there to argue that the
Darlington closing necessarily had an adverse impact upon
unionization in other plants of the Deering - Miliken
combination ; it was necessary to establish specifically the
existence of a motivation aimed at achieving the particular
prohibited effect. There is no evidence in this record that
contemporaneous union activity existed at Respondent's
other plants at a time when the decision was made in the
summer or fall of 1967, to close the home center in
McAllen . The employees of the Laredo warehouse are not
now, nor have they been during the period involved in this
proceeding , represented by any labor organization, and in
the fall of 1966 an election was conducted among the
employees working at the San Antonio warehouse to
determine whether they wanted to be represented by the
Teamsters Union. The Teamsters lost the election, and at
all times thereafter , the employees working at the San
Antonio warehouse have not been represented by any
labor organization . From the latter event it is obvious that
in 1966 the attempts to organize the Respondent's San
Antonio warehouse was "chilled" by the employees
themselves when a majority of them refused to support the
Teamsters in the election. So far as this record is
concerned the immediate advent of possible unionization
at San Antonio had already been decided and was in the
background by the time any decision was made to close
the home center in McAllen.
There remains for consideration the allegation that the
termination of Hector Garcia and the closing of the home
center, without notifying or consulting with the Union was
violative of 8(aX5) of the Act. The General Counsel
argues that the failure to give the Union any notification
or opportunity to bargain about either the decision to
close down the department , or about the consequences of
the close down with respect to whether a layoff was
warranted, or if so which employees would be laid off,
was another instance of the campaign of Respondent to
ignore the legal obligation imposed by the Act.
To my knowledge the Board has never held that an
employer cannot eliminate existing inefficiency in its
business operations until first securing the consent of the
Union. As the Board clearly set out in Dixie Ohio
Express Co., 167 NLRB No. 72, an employer has a right
to determine the need to reorganize its operations along
more efficient line, and the Act imposes upon it the
obligation to notify the union of its plans, and to afford
the union an opportunity to negotiate concerning the
changes , the implementation of the plan, and the effects of
the changes of employees whose job will be eliminated. On
October 16, 1967, Miller was notified that the department
here in question would be closed, and on November 30,
1967, he formally notified the Union of this development
and that such action might result in the permanent
reduction of one or two employees. Although Hector
Garcia was on the employee negotiating committee and
otherwise fully knew about what was happening, as
aforestated, the matter was never raised by the Union at
the November 1 and November 16, 1967, negotiating
meetings , and although the Union had received the
November 30, 1967, letter from the Company nothing was
said about it at the December 13, 1967, meeting or any
meeting thereafter. Shapiro testified that he did not see
the Company letter until after December 13, 1967, and if
he had known about it would have raised this issue. The
Respondent should not and cannot be prejudiced by
possible inadvertence within the internal operating
procedures of the Union's business office. Under these
particular circumstances the Company had every right to
reasonably believe that if the Union entertained any
thought or objections on the closing of the department
and reduction of employees, it would have brought forth
the matter at the negotiating meetings , as especially so at
the meeting on December 13, 1967. In relation to the
above the Company points out in its brief the following:
"What the evidence and General Counsel's case leaves
open is what would have occurred had the Union raised
the issue at the bargaining sessions in November and
December? Was the Respondent ' s decision to begin
closing the home center department an irrevocable
decision? Could the Union have raised questions and given
ideas that would have delayed or even changed the
situation in some material way? These questions cannot be
resolved , because the Union failed to raise the issue. Even
if by the Union's mistake, is the Respondent to be
charged with failing to offer to negotiate after sending
formal written notice and after a member of the
negotiating committee knew what was going on?
Respondent submits that the law cannot hold Respondent
responsible under these circumstances , even if required to
negotiate about the decision since the Union passed over
discussing the matter with it . See Lakeside Cement Co.,
130 NLRB 1365, 1374-75 (1961)."
In the final analysis here, the Company did not bypass
the Union with respect to closing its home center
department since opportunities were afforded to the Union
to bargain over it, and the Respondent notified the Union
of its decision with sufficient advance notice to afford the
Union an opportunity to bargain over the rights of the
employees whose employment status would be altered by
Respondent's managerial decision.21
"The closing of the home center department is, of course , only a partial
closing of the Respondent 's enterprise and not a complete going out of a
business by Respondent . Thus, we are not confronted with the question
whether a decision to go out of business completely is a mandatory subject
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning now to the specific allegation that Hector
Garcia was discriminatorily discharged on December 16,
1967. The General Counsel argues that in the month of
December 1967, no other permanent employee other than
Hector Garcia was discharged by Respondent even though
other employees had shorter length of service and were
receiving the same $1.40 per hour rate, and that
Respondent's contention that it had no other job available
for Garcia is refuted by the evidence of Respondent's
retention in its employ of employees with very short
periods of service. It is further pointed out by the General
Counsel, among other factors, that Garcia was a
satisfactory employee for 8 years, that he was familiar
with all operations in the warehouse, and that Garcia
could have been retained as a full-time order puller or car
unloader.11
The real thrust of the General Counsel's contention is
that the Company did not place Garcia in another job
within the general warehouse operations when the home
center was closed. The Respondent's answer to this
argument as duly reflected in the record, is that on
December 16, 1967, there were no immediate available job
open in the warehouse. In meeting this obstacle the
General Counsel then points out that the Company
retained at least five employees who had been working for
the Company, less than 1 year, and that Inocencio
Ramirez was hired as a car unloader in a temporary
status on November 20, 1967, after the decision was made
to close the home center. However, Miller testified that all
present employees at this time were performing their work
satisfactorily and, therefore, he had no grounds to
terminate any employee to open a job for Garcia.
This record shows that the Company had not
recognized seniority in its employment practices, and even
the status of the negotiations between the parties as of
April 19, 1968, was that there would be no seniority
provisions in the labor contract.2' Miller testified that no
employees were hired for the warehouse between
December 16, 1967, and until February, 1968, when the
strike began, and further stated that the keeping of Garcia
on another job would not have enabled the Company to
reduce its overtime hours." Miller also credibly testified
that in order to reduce overtime he would have been
required to replan his work schedule and hire additional
employees, but the retention of just one employee would
not have helped this situation. There is some testimony on
the interchange of jobs from time to time by employees,
in the warehouse. However, it is clear that Garcia spent
the majority of his working hours in the home center
department or work in direct relation thereto, as
aforestated, and this was his main and overriding
responsibility and job.
of bargaining under Section 8 (aX5) of the Act. In Fibreboard Paper
Products Corp. v. N L.R.B., 379 U.S. 203, the Supreme Court's decision
was limited to the type of contracting out involved in that case , and did
not explicitly deal with the question whether an employer must bargain
concerning a decision to terminate a portion of its operations . It seems to
me that in the instant case I need not reach or determine the Supreme
Court's full impact from the Fibreboard and Darlington decisions, because
of my findings, and among others, that the Union here was afforded ample
opportunities to bargain about the closing in question.
"Admittedly, the Respondent had full knowledge that Garcia was an
adherent for the Union.
"For background purposes , the Company presented evidence showing
the Respondent had experienced a similar closing in 1958 of the produce
department , and the closing was handled in the same manner. Five
employees employed in that department were terminated and given the
same termination pay.
"At the time in question the Respondent was paying overtime after 40
Since, as the record shows, the termination of Hector
Garcia was directly attributable to the closing of the home
center, and due to the fact the Company had no work for
Garcia and in order to keep him on would have had to
terminate another employee. I find that his discharge was
not discriminatorily motivated.
Other than what has been discussed heretofore, the
complaint in Case 23-CA-2914 further alleges the
Respondent violated Section 8(a)(5) of the Act by
negotiating with no intention of entering into a contract,
by refusing to make a proposal on wages since October
13, 1967, and by refusing to negotiate on checkoff or any
union security provisions.
At the initial meeting between the parties in January
1967, it was mutually agreed to hold economic matters
until the latter part of the negotiations, and the Union did
not present any economic proposals until the meeting on
March 1 and 2, 1967. At the meeting on August 13, 1967,
the Company stated they would make an economic
proposal later and on October 13, 1967, the Respondent
presented an economic proposal which covered wages,
holidays, vacations and health and welfare. The General
Counsel argues that the sum total of this proposal was to
retain the same holiday, vacation and health and welfare
benefits that the Company been paid previously, and
additionally only granted a wage increase of 2 cents per
hour. At the negotiating meeting on December 13, 1967,
the Company stated they were resubmitting the economic
proposal they made on October 13, 1967. On April 19,
1968, the Company outlined their counteroffer pertaining
to economics and proposed an additional 5-day paid
holiday, that it would retain existing vacation schedules
and its health and welfare program, and would grant a
5-cent night premium to employees in the produce
department. As indicated previously herein, there is also
the contention by the Union that they were never able to
ascertain what would happen on February 1, 1968, when
the federal minimum wage would be raised. It appears
that the Union made inquiries about this matter at three
or four meeting sessions . The credited testimony shows
that at the meetings on November 16, and on December
13, 1967, the Company gave some answers to this
question, as aforestated, and if the replies caused
confusion or misunderstanding it was probably because
the Union disagreed with the Respondent's proposal in
this respect. It is further noted that by this the Union had
also experienced the Respondent's reaction to the federal
minimum wage increase of February 1, 1967, as detailed
earlier herein, and the Union at that time expressed full
accord. Based on the above and in consideration of this
record as a whole, there is not actual basis which will
adequately sustain the allegation that the Company
refused to make a proposal on wages.
At the initial session between the parties the Company
informed the Union it was opposed to the checkoff
proposal, that this was interfering with the business of the
Union, and the Company was not interested in knowing
their employee members of the Union. At the negotiating
meetings on April 4 and 5, 1967, union security was again
discussed and the Respondent stated the Union "was in a
good position to collect their own dues," and that the
Union had two fully stopped offices in the McAllen area
to take care of collections. On August 3 and on
November 16, 1967, the parties again discussed union
security, and the Union stated that they were going to
hours, and day shift employees were working approximately 50 hours a
week.
SWEENEY & CO. 227
insist on a 12-month irrevocable checkoff. At the session
on April 19, 1968, this matter once again came up and the
Company restated its position - that they were
"philosophically" opposed to it , that the Union was new
in the area and the Company knew very little about them,
and in the first contract the Company could not agree to a
union security clause , but that possibly later on the
Respondent could agree on a checkoff provision. On one
or two occasions during the negotiations Shapiro asked if
the Company would agree to an agency shop, and in
relation thereto mentioned the States of Florida and
Indiana . The General Counsel argues that the Company,
by sticking to its claim that it was philosophically opposed
to the checkoff or other form of union security and by
refusing to consider any type of such clause, effectively
struck this subject of bargaining from the area of
negotiation and thereby demonstrated further evidence of
its bad faith.
Turning now to the overriding or general allegation in
Case 23-CA-2914, that the Respondent negotiated in bad
faith and without an intention of entering into a contract.
The law is clear that negotiations carried on in good faith,
where there has been an open exchange of ideas, proposals
and counterproposals , and an indication of willingness to
compromise , cannot be found to be violative of Section
8(a)(5) of the Act simply because on some of the issues,
even though they may be crucial , one or the other of the
parties has been unwilling to recede from its position so as
to yield to the contentions or demands of the other. The
record in this proceeding of the negotiations and the
proposals by the Respondent , its availability and
participation on 14 different occasions since the Union
was certified , and its willingness to sign an agreement,
clearly establishes that the Respondent ' s conduct in the
course of these dealings was in keeping with the spirit of
the Act.
The record here further clearly demonstrates that each
item in the various proposals , were , at one time or
another , openly discussed , and that full agreements were
reached on several clauses . Partial agreements, in one
phase or another , were also reached on numerous
proposals , as all aforestated heretofore . In several
instances during the negotiations the Union adopted the
proposals of the Company, but in other instances the
Company accepted modifications . Shapiro even admitted
that the parties finally reached total accord on proposals
dealing with grievance procedure , arbitration,
management clause , union visitations , jury duty,
separability, bulletin boards, and also admitted that
partial or limited agreements were reached on such items
as leave of absence , hours of work , vacations, change of
ownership , and overtime.
This record shows that when the Company opposed any
proposals by the Union it stated the reasons or basis for
their objections . On wages the Company maintained their
2-cent across-the-board proposal in 1968 on the basis that
employees had recently received a 20-cent increase under
the Federal minimum wage law; informed the Union on
several occasions as to the reasons why they opposed
checkoff; told the Union they opposed the agency shop
because of an opinion from the Attorney General of Texas
holding such was illegal; explained to the Union their
position in having a larger number of classifications; and
informed the Union of their reasons for initially refusing
to give employees in the produce department a night-shift
differential in pay.
The Company supplied several lists of their employees
and other information as requested by the Union; for
purposes of clarity they drafted their numerous
counterproposals in writing; they supplied the meeting
place for the negotiations; and when the two wage
increases were given to fulfill the requirements of the
Federal minimum wage law , the Union was notified
beforehand and given the opportunity to discuss the
matter and register any objections they might have. What
is also abundantly obvious in this record is the difficulty
encountered by the parties in maintaining continuous
continuity in their negotiations . Due to illness and other
circumstances the Union had to change their principle
negotiator in the middle of the stream so to speak, and in
at least one or two instances the Union had office troubles
in keeping track of communication from the Company.
The Supreme Court has pointed out that the employer's
obligation under Section 8(a)(5) and 8(d) to bargain in
good faith does not require the yielding of positions fairly
maintained , nor permits the Board, under the guise of
bad-faith bargaining, to require an employer to contract in
a way the Board might deem proper . Nor may the Board
. . directly or indirectly, compel concessions or
otherwise sit in judgment upon the substantive terms of
collective-bargaining agreements N. L. R. B. v.
American National Ins. Co., 343 U.S. 395, 402, 404.
Based upon the controlling legal guide lines and their
applications to the facts in the instant case , I have found
insufficient evidence to sustain the General Counsel's
allegations and contentions that the Respondent did not
bargain in good faith. There remains for consideration the
effect of my 8(a)(l ) finding and its impact upon the
Respondent's total conduct . This single incident involving
Villerreal and Employee Islas, as aforestated , must be
regarded as an isolated and minor violation. The
Respondent 's good faith in bargaining, established after
many months the conference table , must stand under all
the circumstances and events in this case , and its single
and isolated unfair labor practice away from the table was
sufficiently separated so as not to destroy the good
bargaining.
In accordance with my findings, conclusions, and
discussions herein , I hereby dismiss all of the 8 (a)(1), (3),
and (5) allegations in Case 23 -CA-2914.
On September 13, 1968, the complaint in Case
23-CA-3079 was issued alleging that Respondent had
violated Section 8(aX3) and (1) of the Act with respect to
30 designated employees by refusing to reinstate said
employees to their former or substantially equivalent jobs
after April 19, 1968 , when various jobs became available
at Respondent's McAllen warehouse operation.
On February 9 or 10, 1968 , the Company had 47
employees in positions covered by the Union's
certification . On February 11, 1968, as aforestated, 30 of
these employees went out on strike , and the Respondent
then started hiring new employees to replace the strikers.
Between February 11, 1968, and the Union's
unconditional offer of reinstatement and termination of
the strike on April 19 , 1968, the Company hired 46
employees to fill the positions left vacant by the strikers
and on April 19, 1968 , the Company had a full
complement of 48 employees."
The record further reveals that subsequent to February
11, 1968, there has been no significant change in
Respondent ' s operation or in the work performed by
employees in the various job classifications. No new
"Hired were 47 or 48 to fill the 30 jobs made vacant by the strikers, and
out of the 47 or 48 new employees hired during the strike period -
approximately 16 of them quit or were discharged.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments have been created nor have any been
eliminated , and no job positions have been abolished. At
the present time the Company has actually 50 employees
covered by the certification - 3 more than the number it
had on February 11, 1968.
Plant Manager Miller testified that when jobs became
available after April 19, 1968, he did not recall any of the
strikers nor did the Company make any attempts to
contact any of them. Miller admitted that on May 23 or
24, 1968, he received a letter which was signed by the
strikers, and in which they again offered their availability
for work. Miller also admitted that subsequent to April
19, 1968, he knew some of the strikers had contacted the
Texas Employment Commission seeking unemployment
compensation benefits. This record shows that
approximately 20 strikers filed claims with the Texas
Employment Commission, and the Company made
protests to their claims . On June 21, 1968, a hearing was
held on the above matter and in September 1968, the
Commission entered a decision entitling the claimants to
certain benefits. Therefore, during all the times after April
19, 1968, the Respondent was fully aware that most of the
strikers were actively seeking employment through their
claims with the Commission and by their May letter, and
although positions became available , Respondent made no
effort to contact or reinstate any of the strikers.
Miller stated that new employees were hired through an
employment agency , others through a newspaper ad, and
that the rest were hired when they appeared looking for
work at the warehouse . He testified that the decision was
made not to take the strikers back on the basis that their
jobs were filled by replacements. Miller further stated that
since April 19, 1968, 15 new employees have been hired to
replace strike replacement employees, but the job in which
such an employee was initially hired for - may not be the
job he is now or currently working at.30 This record shows
that many of the strikers had long service records with the
Company, and some training or experience is necessary in
certain jobs before a new employee can perform his job
satisfactorily. In fact, the record reveals that there was a
considerable turnover among the nonstrikers and strike
replacements , yet, although the regular employees on
strike were generally experienced in many of the jobs in
their respective departments, not a single striker who had
once been replaced was recalled despite the vacancies
which arose.
The Respondent argues that application for
employment and for reinstatement are two different
concepts , and in cases involving alleged discrimination in
rehiring economic strikers, it is necessary that applications
for employment be made, and it is held that a mass
request at a time when no vacancies existed is not
sufficient , nor a continuing application for employment.
The Respondent further contends the Supreme Court
decisions in N.L.R.B. v. Great Dane Trailers , 388 U.S.
26, and in N.L.R.B. v. Fleetwood Trailer Co., 389 U.S.
375, do not support the position of the General Counsel in
the instant case , and also maintains that replaced strikers
"Since April 19 , 1968, in jobs covered by the certification , the Company
hired the following employees : G. 0. Garcia, A. L. Garcia, E. Torres, C.
A. Muniz , Roberto Flores , A. Garza , Jr., S. Canto . Jr., Adam Garcia, R.
Z. Vela, Roberto Devela . R. G. Guzman . Jr., Armando Garcia, H.
Salinas, and R . Garza . Subsequent to the above date the Company has
had two vacancies in the day warehouse crew , three vacancies in the night
warehouse crew , one vacancy as drivers , and four or five vacancies in the
produce department . G. 0 Garcia worked until May 5 , 1968, E . Torres
worked up until July 6, 1968, and R . Z. Vela worked up until July 11,
1968. None of the employees in the I . B.M. department went out on strike.
are no longer employees.
Previously herein, I have dismissed all the allegations in
Case 23-CA-2914 and therefore , the strike in question
here must be deemed an economic one." In a number of
earlier cases the Board stated or implied that replaced
economic strikers were entitled only to nondiscriminatory
treatment as applicants for new employment , and that an
economic striker ' s right to reinstatement is determined at
the time application for reinstatement is made. However,
the Supreme Court in Fleetwood and Great Dane has
now held that the right to the job does not depend on its
availability at the precise moment of application , and that
strikers retain their status as employees who are entitled
to reinstatement absent substantial business justification,
and regardless of antiunion animus.
In Fleetwood , the employer was held to have violated
the Act by failing to reinstate strikers and by hiring new
employees for jobs which were reestablished when the
employer resumed full production some 2 months after the
strikers applied for reinstatement . In so finding , the Court
pointed out that by virtue of Section 2(3) of the Act, an
individual whose work ceases due to a labor dispute
remains an employee if he has not obtained other regular
or substantially equivalent employment, and that an
employer refusing to reinstate strikers must show that the
action was due to legitimate and substantial business
justification . The court further held that the burden of
proving such justification was on the employer and also
pointed out that the primary responsibility for striking a
proper balance between the business justifications and the
invasion of employee rights rests with the Board rather
than the courts . The Court also noted that an act so
destructive of employee rights, without legitimate business
justification , is an unfair labor practice without reference
to intent or improper motivation . Furthermore, the Court
explicitly rejected the argument , asserted by the employer
in Fleetwood that reinstatement rights are determined at
the time of initial application."
The underlying principle in both Fleetwood and Great
Dame , supra , is that certain employer conduct, standing
alone , is so inherently destructive of employee rights that
evidence of specific antiunion motivation is not needed.
Specifically in Fleetwood , the court found that hiring new
employees in the face of outstanding applications for
reinstatement from striking employees is presumptively a
violation of the Act, irrespective of intent unless the
employer sustains his burden showing legitimate and
substantial reasons for his failure to hire the strikers. A
similar parallel exists here which requires application of
the same principle . When job vacancies arose as the result
of the departure of permanent replacements , Respondent
could not lawfully ignore outstanding applications for
reinstatements from strikers and hire new applicants
absent legitimate and substantial business reasons,31
irrespective of intent . In Laidlaw Corporation, 171
NLRB No. 175, relying on the principles set forth in
"The strike was called on the premise or basis that the Company had
refused to bargain in good faith and had discriminatorily discharged
Hector Garcia.
"In the instant case a valid unconditional request for reinstatement was
made by the Union on behalf of all strikers on April 19, 1968 , despite the
fact that not all the strikers submitted individual applications at that time
or thereafter. As the Board recently stated, "under settled law, it is well
within the Union's authority , as the employees ' bargaining agent , to make
an unconditional application for reinstatement on behalf of the strikers ...
Trinity Valley from & Steel Co ., 158 NLRB 890.
"E. g., as may be justified by a change in a employer ' s operations or
where striker applicants lack requisite skills.
SWEENEY & CO.
Fleetwood and Great Dane, the Board held that replaced
economic strikers who had made unconditional application
for reinstatement and who had continued to make known
their availability for employment are entitled to full
reinstatement to fill positions left vacant by the departure
of permanent replacements. In so finding the Board
stated:
We hold, therefore, that economic strikers who
unconditionally apply for reinstatement at a time when
their positions are filled by permanent replacements: (1)
remain employees; (2) are entitled to full reinstatement
upon the departure of replacements unless they have in
the meantime acquired regular and substantially
equivalent employment, or the employer can sustain his
burden of proof that the failure to offer full
reinstatement was for legitimate and substantial
business reasons.
In the instant case, as pointed out, the Respondent had
positions available upon the departure of the strike
replacements and that the strikers, on at least two
occasions had made an unconditional application for
reinstatement. Respondent failed to establish that any of
the strikers had in the meantime acquired regular and
substantial equivalent employment or that failure to offer
reinstatement was for a legitimate and substantial business
reason. In accordance with the above, the Company has
violated Section 8(a)(3) and (I) of the Act by its refusal to
reinstate any of the striking employees to the jobs which
became available after April 19, 1968.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent described above have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices violative of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act by failing to offer reinstatement to the
certain strikers when replaced vacancies arose after April
19, 1968, I will recommend that Respondent offer to such
strikers whose jobs became available, immediate and full
229
reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the
discriminatory failure to reinstate them by payment to
each of a sum of money equal to that which each
normally would have earned as wages from the date of the
discriminatory failure to reinstate them to the date of
Respondent's offer of reinstatement , less the net earnings
of each during such period, with backpay and interest
thereon computed in the manner prescribed by the Board
in F. W Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. The order in
which these strikers would have been offered reinstatement
shall be governed by their departmental seniority. The
commencement of the backpay period can therefore be
determined by an examination of the seniority rosters and
the dates when new hires were made in the respective
classification and departments, all of which are present by
the exhibits in this record.
It will also be recommended that the Respondent
preserve and make available to the Board, upon request,
payroll and other records to facilitate the computation of
the backpay due.
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 engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating the employee status of strikers and
by failing to reinstate them when vacancies arose after
their unconditional request for reinstatement , Respondent
has discriminated with respect to their hire , tenure, and
terms and conditions of employment , thereby discouraging
membership in the Union, and has engaged and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By the foregoing conduct, Respondent has interfered,
with , restrained , and coerced its employees in the exercise
of their Section 7 rights and thereby has engaged and is
engaging 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 affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent did not engage in any unfair labor
practices alleged in the complaint , which are not
specifically found herein.
[Recommended Order omitted from publication.]