The Texstar Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1178 (N.L.R.B. 1962)

1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close , intimate, and substantial relation to trade, traffic , and commerce among
the several States, and such of them ac have been found to constitute unfair labor
practices , tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company engaged in unfair labor
practices in violation of Section 8(a) (1) and ( 3) of the Act, it will be recommended
that the Respondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent offer employee Raymond Strickland
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the date of offer of
reinstatement , and in a manner consistent with Board policy set forth in F. W.
Woolworth Company, 90 NLRB 289.
It will also be recommended that the Respondent preserve and , upon request.
make available to the Board , payroll and other records to facilitate the computation
of backpay.
It will also be recommended , in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record
in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Raymond
Strickland , thereby discouraging membership in the Union, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4 By engaging in the conduct set forth under section III , A, 1 and 2, above,
Respondent interfered with, restrained , and coerced its employees and has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
5 The Respondent did not discharge Richard Dupree, Walter Faircloth, Robert
G. Grice, Jarvis L. Johnson, Kenneth Johnson , Percy Poole, Bobby Raper, Jerry
Snead, and Joseph Webb in violation of Section 8(a)(3) of the Act.
6. Respondent did not refuse to bargain collectively with the Union in violation of
Section 8(a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Aztec Ceramics Company, a Division of The Texstar Corpora-
tion and International Brotherhood of Operative Potters,
AFL-CIO. Case No. 23-CA-1270. September 28, 1962
DECISION AND ORDER
On May 10, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
138 NLRB No. 122.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1179
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in other unfair labor practices alleged in the complaint. Thereafter,
the Respondent, the General Counsel, and the Charging Party filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions noted.
1. We agree with the Trial Examiner that by "unilaterally in-
creas[ing] wages considerably more than it had offered at the bar-
gaining table," Respondent thereby not only demonstrated "lack of
good faith in making even the limited offer" concerning wages but
also by "unilaterally granting many individual increases," it engaged
in conduct which "constituted flagrant refusal to bargain." These
findings are amply supported by the record, which demonstrates that
Respondent steadfastly maintained a position that it would not grant
any economic changes which would increase costs. The only excep-
tions were an offer to put the new minimum wage into effect 1 month
before required to do so by law, and an offer to grant, in exchange
for a 2-year contract and at Respondent's discretion sometime within
that period, a 71/2-cent raise to a limited number of employees who
in July 1961 were making in excess of the newly established minimum
wage of $1.15. However, with the advent of the strike and during the
months immediately following, Respondent admittedly granted to all
employees then making in excess of the new minmum wage an in-
crease ranging between 5 and 15 cents per hour, an amount far in
excess of any offer made to the Union at any time. In addition, with
regard to employees for whom Respondent refused to offer any in-
crease whatsoever, it granted an increase up to 15 cents per hour. It
defended such action on the ground that it was not equitable to have
experienced employees working for the same wage rate as new in-
1 The Respondent excepted to the entire Intermediate Report on the grounds that the
Trial Examiner was biased and prejudiced against the Respondent at the hearing and in
the Intermediate Report and that the Trial Examiner resolved all issues in favor of the
General Counsel's position. The Supreme Court has stated that even "total rejection of
an opposed view cannot of itself impugn the integrity or competence of a trier of facts."
N.L.R. B. v. Pittsburgh S.S. Company, 337 U.S. 656. Moreover, we have fully considered
the entire record and the Intermediate Report and have independently reviewed the
Trial Examiner's credibility findings. We perceive no evidence of bias or prejudice on
the Trial Examiner's part, nor do we find any basis for disturbing his credibility findings.
Accordingly, we are satisfied and find that the contentions of Respondent in this regard
are without merit. See Peter Kiewit Sons' Co., 136 NLRB 119 at footnote 1.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experienced employees-the very union argument it had previously
rejected. Moreover, all of these increases, substantially in excess of
any ever offered in bargaining sessions, were admittedly granted with-
out notice ever being given to the Union that Respondent was receding
from its former position taken at the bargaining sessions or that it
was putting such wage increases into effect.
Such unilateral action is a disparagement of the bargaining process
violative of the Act,' and when the unilaterally granted wage increase
is substantially greater than any offered during negotiations, such
conduct clearly manifests bad faith.'
2. We also agree with the Trial Examiner that the immediate and
direct cause of the strike which began on July 12, 1961, was the Re-
spondent's unlawful conduct with respect to the Union's request for
the seniority list. The record discloses that at the first bargaining
session held following Respondent's unilateral layoff in May the
Union requested the seniority list so that it could independently
check Respondent's claim that the layoffs had been in accord with
seniority. At the same time the Union protested to Respondent cer-
tain departures from such seniority which it had been reliably in-
formed were made to the detriment of active union adherents. There
followed a series of exchanges in letters and at meetings concerning
the relative seniority of certain individual employees and the Union
continued to demand and the Respondent to promise to produce the
entire seniority list used for layoff and recall. The Respondent failed
to produce the seniority list. Finally, at the July 11 meeting, the
Union asserted that there was clear discrunination in Respondent's
failure to recall certain laid-off employees while hiring new employees.
It asked Respondent for immediate reinstatement of all laid-off em-
ployees and for the data on which Respondent relied for its contention
that failure to recall was not discriminatory. Respondent agreed to
furnish the requested information by 4 p.m. that day so that the
Union could report to the local membership meeting scheduled for
4:30 p.m. When Respondent failed to supply the requested informa-
tion as indicated the union representatives proceeded to the meeting
and reported Respondent's failure to give an answer as promised and
recommended that a strike be called to try to force Respondent to re-
instate the laid-off employees. Several members spoke from the floor
on the unfairness of hiring new employees while laid-off employees
were still not recalled. A strike vote was held on the subject with the
unanimous decision to strike the next morning. Thus, the record
amply supports the Trial Examiner's conclusion that this unlawful
conduct of the Respondent was the immediate cause of the strike.
a See N.L.R B v. Benno Satz, et at. , 369 U.S 736.
N.L.R.B. v. Crompton-Highland Mille, Inc., 337 U.S 217.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1181
ORDER4
The Board hereby adopts the Recommended Order of the Trial
Examiner with the modifications of provisions 2(e) in accord with
footnotes 23 and 24, thereof, incorporating therein the further modi-
fication of the Remedy as noted at footnote 4, herein.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges discriminatory layoff of Pedro Ortega.
A The Trial Examiner failed to make reference to and did not provide in the remedy for
interest on backpay due employees listed in Appendixes A and B as requested by the
General Counsel The backpay obligations of Respondent shall include the payment of
Interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing
c€ Heating Co, 138 NLRB 716 The remedy recommended by the Trial Examiner is
amended accordingly.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges and amended charges in the above-entitled case were filed by the Opera-
tive Potters on June 24 and October 11, 1961, and January 5, 1962. Upon said
charges the General Counsel of the National Labor Relations Board issued and
served a complaint and amended complaint on October 13, 1961, and January 9,
1962. Answers were filed by the Respondent. The complaint alleges and the
answers deny that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended. Pursuant to notice, hearings were held in San Antonio, Texas, on Janu-
ary 22, 23, 24, and 25, and February 20, 21, 22, and 23, 1962, before Trial Exam-
iner C. W. Whittemore
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs Briefs have been received from all parties.
Disposition of the Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the conclusion of the hearing, is made by the following
findings, conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF, FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation, with principal office and plants in San
Antonio, Texas, where it is engaged in the business of manufacturing, selling, and
distributing ceramic tile.
During the year before issuance of the complaint the Respondent purchased and
had transported to its San Antonio plants, directly from points outside Texas, goods
and materials valued at more than $50,000. In the same period it sold and shipped
products valued at more than $50,000 from said plants directly to points outside
Texas.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
International Brotherhood of Operative Potters , AFL-CIO, is a labor organization
admitting, to membership employees of the Respondent.
in. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The events placed in issue by the complaint occurred in a setting, created by the
employer, of unusually vigorous and bitter hostility toward the Union involved, in
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a campaign plainly designed and intended to discourage the low-paid employees
from exercising their right to seek betterment of their economic position through
self-organization and collective bargaining. About 150 workers are involved, many
of them Latin-Americans of Mexican origin.
Union organization among the Respondent's employees began in the fall of 1960.
It progressed, despite employer opposition, to a Board election conducted on
January 20, 1961.
For a considerable period before the election management almost daily sent letters
to employees or distributed circulars overtly implying economic harm and suffering
if they voted for the Union. Many of the documents, in evidence, reveal a common
theme: an implied warning that if the Union won the Company would yield to
none of the Union's negotiating demands, the employees would be called out on
strike, the Union would desert them, and they would all lose their jobs and income.
An example is quoted, from a letter dated 10 days before the election:
All of the union's promises are empty and meaningless. Any employee who
falls for them does not know the whole story. Even if the union won the
election, if the company did not deem it advisable to grant the things promised
by the union, then the only thing the union would do would be to call the
members out on strike. The company has the legal right to employ new
people to take the place of striking employees and the same thing would
happen which happened at so many other places in San Antonio and elsewhere.
During the same preelection period supervisors interrogated employees concerning
their voting intentions and union meetings. It is undisputed that an assistant fore-
man, Vera Rennspies, told an employee (Campos) that management had a "spy"
at union meetings who reported those attending. It is also undisputed that Foreman
Gonzalez told employee Fernandez that at a supervisors' meeting Plant Manager
Grimes had informed them that the company president would not sign a union
contract, and would rather close the plant than give anything to the Union.
Grimes himself participated in this campaign of discouragement. One payday,
before the voting, he and others of the office staff stationed themselves near the
point where employees came to receive their checks. As employees came by they
were handed envelopes containing $3 in cash (which had apparently been withheld
from their checks) and were told that this amount represented their union dues.'
Despite management's intensive efforts to prevent it, a majority of the employees
voted for the Union at the January election, and on January 30, 1961, it was cer-
tified as the bargaining agent.
Out of this hostility stemmed conduct and events claimed by General Counsel and
denied by the Respondent to constitute illegal interference, restraint, and coercion,
refusal to bargain, discriminatory layoffs of 11 employees in March,2 and refusal
to reinstate some 60 employees, listed on Appendix A, attached hereto, in December
1961, after their unconditional offer to return to work from a strike caused by the
Respondent's unfair labor practices.
B. Interference, restraint, and coercion
Credible evidence establishes and the Trial Examiner finds that by the following
conduct of management representatives the Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act:
(1) Without consulting with or even informing the Union, after the election
management inaugurated and put into effect a new application form for hiring
which contained the question: "To what business associations and/or fraternal or
labor organizations do you belong?" It is undisputed that this form, containing
this unlawful interrogation, was used for several weeks.
(2) When new employee Belmarez was hired in June, Plant Manager Grimes
asked him if he knew anything about the Union, and warned him not to get "messed
up" with it, for it would do him no good.'
I General Counsel does not urge and the Trial Examiner does not find that events
occurring prior to the election were violations of the Act, since the original charge was
not filed until July 24, 1961 . Such events, however , throw revealing light upon later
management conduct which is in issue.
2 Mary Buckalew, Doris Heinemeyer, Ronnie Leonhardt, Jesse Alvarado, Frank Guiterrez,
Viola Willeford, Zeferina Briseno, Carrie Solis. Guadalupe DeLaCruz, Teofllio DeLaSanchez,
and Pedro Ortega
a As a witness Grimes merely said he did not recall "any conversation" with Belmarez
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1183
(3) When new employee Eloise Vargas was interviewed by Plant Superintendent
Cooper during the same month, Cooper asked her if she belonged to a union. When
she said "No," she was hired .4
(4) It is undisputed that upon being interviewed for hiring by John Burrows,
warehouse superintendent, employee Nava was told not to join the Union. Nava
was also told that while he could not expect more money at once, because of the
Union, in a few months "everything would be over" and all might be getting better
wages.
(5) About a month after the election the spray department supervisor, Alan
Whiting, warned employee Narro that employees who had voted for the Union
would be laid off while employees who had voted against it would get a raise in pay .5
(6) Foreman Ornelas, of the kiln department:
a. In June told employee Troncoso, upon his recall from a layoff in March,
that had it not been for the Union there would have been no layoff;
b. In March warned employee Moreno that if he did not follow his advice
not to "go with" the Union he would be fired;
c. Told employee DeLaCruz that employees who were in favor of the Union
would be laid off and those who were against it would retain their jobs.6
(7) In February or March Foreman Lopez, of the press department, queried
employee Ramos as to the number of union meetings he attended and how many
were present, and after the strike began, in July, told the same employee that the
Company would not sign a contract with the Union.7
(8) Assistant Foreman Vera Rennspies interrogated many employees in her de-
partment concerning their union activities and what had occurred at union meet-
ings. She warned one employee, Campos, that if the employees kept on with the
Union the plant would be shut down. She warned at least two employees (Acuna
and Briseno) that it would be better to be in the plant than out in the hot sun with
union signs. She asked employee Willeford if she had been elected to a union
office, and warned her that if she kept "playing around" with the Union she would
be laid off.8
(9) Foreman Delrin Rennspies of the same department told employee Briseno,
Sr., not long before the strike that employees who went on strike would be "thrown
out" of their jobs.9
C. The discharges and layoffs
In mid-March, without notice to employees as had been given in previous sea-
sonal layoffs, and without informing or discussing with the Union its planned action,
either as to method of selection or extent, the Respondent suddenly laid off about a
third of its working force. Although General Counsel does not contend that a layoff
at this time was not economically justified, he urges that both in the method of its
effectuation and in selection of individuals for permanent or temporary layoff, the
Respondent's action was retaliatory and unlawful.
Of the 11 employees involved, 6 were laid off but not recalled up to the time of
the hearing. Since new employees were thereafter hired, it is clear that their layoffs
amounted actually to discharges.
The cases of these six will first be considered.
4 Cooper denied asking this question of any girls hired in June. The denial is not
credited , particularly in view of the fact that during the same period the above -described
application form was used.
5 The Trial Examiner cannot credit Whiting's denial that he made this statement. He
admitted that he had discussed the Union with this employee , and that he told him he
"didn't care for unions ." Furthermore , as noted later in this report, Whiting 's warning
proved to be an accurate forecast.
e Ornelas' denials are not credited . His conduct after the election was consistent with
the Respondent's open campaign against the Union prior to the election , which manage-
ment never disavowed.
7 Lopez' denials are not credited , for the reasons noted in footnote 6.
8 The Trial Examiner cannot credit any of Rennspies ' many denials. She was an un-
convincing, petulant , pouting witness . As the record shows, when she said she did not
remember a certain incident called to her attention , upon continued pressing by Respond-
ent's counsel she would finally answer "No." The Trial Examiner considers her testimony
to be wholly unreliable.
8 Rennspies ' denial is not credited . In substance it was the same threat as that appear-
ing repeatedly in the preelection materials circulated by management.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Buckalew: Buckalew was one of the leaders in both union organization
and administration. She was recording secretary and a member of the employee
committee participating in contract negotiations with management. Grimes ad-
mitted that her union activity was "obvious."
She had long service as a sorter and packer in the department supervised by
Foreman Delrin Rennspies and his wife, the assistant foreman. She was called upon
to train new employees, and when in 1960 she asked for transfer to another building
the foreman declined to grant her request, telling her that he did not want his best
help sent there.
In October 1960 some 70 employees were laid off. Prior to the layoff a notice
was posted by management announcing its pendency and stating that the best and
oldest employees would be retained. Buckalew was not laid off.
On March 17, 1961, however, without prior notice Buckalew was handed her
check by the foreman and informed that she was laid off. It is undisputed that both
as a sorter and packer she was laid off out of departmental seniority, which the
Respondent claimed at negotiations was the selective factor.
It is also undisputed that upon being thus dismissed Buckalew went to Rennspies'
superior, Departmental Supervisor Childress, who told her that he did not know why
she had been laid off out of seniority.
Although others of the same department were recalled a few weeks later, Buckalew
was not, and at the time of the hearing had not been reinstated.
The Trial Examiner finds wholly implausible and without merit the claim of the
Respondent's witnesses as to why this employee was laid off out of seniority and
why she was not recalled. Their testimony clashes violently. Delrin Rennspies
cnaracierized her as a "poor" worker. Grimes, to the contrary, said she was a
"good" worker. Rennspies claimed that back in December 1960, "I asked her to
go to the fettling department and she refused." Buckalew flatly denied that she ever
refused an assignment. Her explanation to the effect that when the foreman on this
occasion asked her if she would go into this department, she replied that she would
if he insisted but preferred not to because of the cold-and that no further comment
or request was made, finds corroboration in a written statement furnished by the
Board by Childress which states, on this point:
In December, 1960, when the Fettling Department needed extra help Mary
was approached to go back and help out-she did not wish to do so-no issue
was made of the matter.
Furthermore, at a negotiating conference when the Union's protest against her
layoff was discussed, Grimes told her he believed her denial that she had ever
refused an assignment, and admitted that he should have investigated.
Contradictions in the testimony of management witnesses, in addition to the fact
that she was admittedly laid off out of seniority, deprive of merit the claims of
management as to Buckalew's layoff. On the contrary, the Trial Examiner concludes
and finds that this employee, a known union leader, was effectively discharged in
order to discourage union membership and that such action was unlawful
discrimination.
Ronnie Leonhardt: Like her friend Buckalew, with whom she lunched, Leonhardt
was an employee of long service, having worked for the Respondent since 1952, with
a break in such service in 1958. She was an experienced sorter and packer of tile
who worked in the warehouse, a building apart from that housing other sorters
and packers. She was not under the supervision of Delrin and Vera Rennspies.
but of Foreman Rodriquez.
Although others had been laid off during the preceding seasonal layoff in 1960,
Leonhardt was not.
That management was aware of her union adherence is reasonably inferred from
her open association with Buckalew and her attendance at union meetings which,
as found above, Vera Rennspies told another employee were reported by a "spy."
On March 17, for the first time, Supervisor Childress told her she was considered
to be in the regular "sorting department" and laid off. She has not been recalled.
The Respondent's claim that her layoff was merely an economic measure and
because there were others with more seniority lacks merit on its face. She worked
alone in this department, and when she was released two employees from the other
building were transferred to perform her work. Furthermore, within a few weeks
management hired new employees, inexperienced in work which Leonhardt for many
years had been performing satisfactorily-a fact admitted by Grimes.io
10 As in the case of Buckalew, management witnesses exhibited a remarkable lack of
agreement on essential matters, weakening measurably any reliance upon their testimony.
Grimes would have it believed that Leonhardt was in the regular sorting department
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1185
The Trial Examiner is convinced and finds that Leonhardt was actually laid off and
denied reinstatement, thus being effectively discharged, because of her union activity
and association with Buckalew, a known union leader.
Doris Heineineyer: Although this employee was not employed until January
1960, as a "pick-up" girl in the spray room and as a "fettler," she was so satisfactory
a worker, apparently, that she survived both seasonal layoffs in that year, in February
and October (As noted heretofore, at the October layoff management posted a
notice to the effect that its best help was being retained.)
She attended union meetings and associated openly with Buckalew. It is undisputed
that she told Assistant Foreman Vera Rennspies that she thought the Union was a
"good thing," and that shortly before her layoff in March 1961, Supervisor Carle of
the spray department told her he had heard that she was warning other employees
they would be laid off if they did not join the Union. She denied the accusation
and Carle accepted her denial. It is clear, and is found, that management believed
Heinemeyer to be an active union adherent.
She was laid off in March and has not been recalled. When she asked her foreman,
Gonzalez, if she would be recalled he told her he did not know.
Within a few weeks new employees were hired in the spray department. Learning
of the new hires, Heinemeyer and Viola Willeford, another employee whose layoff
is discussed below, went to the plant and asked Superintendent Cooper why they
had not been recalled. Cooper gave Heinemeyer various evasive answers, and finally
told her that perhaps he liked the color of the new girls' fingernails.ii
Other management witnesses, in a notable effort to smother the real reason for
laying off and denying reinstatement to this employee, cast unsavory aspersions
upon her character. In substance, they made it appear that since October 1960,
Heinemeyer had done little work but spent her time talking to a spray man, who came
to her station.
In the opinion of the Trial Examiner it is significant in the appraisal of such
testimony to note that her foreman, Gonzalez, was not called as a witness by the
Respondent, although he was in San Antonio at the time and had visited the plant
a few days before other management witnesses testified.
Furthermore, although it was established by Grimes that early in 1961 manage-
ment began issuing written disciplinary warnings, it was admitted by the Respondent's
witnesses that none was ever given to Hernemeyer
There being no merit to the Respondent's claims as to this employee, it is reason-
able to infer, and it is found, that her layoff was in fact a discriminatory discharge,
designed to discourage union activity.
Viola Willeford. Employed as a tile packer in 1958, Willeford's workmanship was
sufficiently well rated to keep her from being laid off during the seasonal reductions
in 1959 and 1960
She was active in the union organization and attended union meetings . Assistant
Foreman Rennspies was well aware of her union adherence, and the day after the
election of union officers told her she thought she would be "elected president."
Soon after the January Board election Willeford was summarily transferred from
her regular lob of packing special orders and assigned to the more arduous task
of packing for two tables and helping at others. Early in March Vera Rennspies
told her that if she kept "playing around" with the Union she would be replaced.
This warning became effective on March 17, when she received her final paycheck.
Other packers with less departmental seniority were retained. She has not been
recalled.
Apparently recognizing the futility of a defense based upon seniority and ability,
for the first time at the hearing Grimes claimed that sometime before her layoff
she had refused to go to the "fettling" department. Willeford flatly denied the
accusation Through Rennspies the Respondent endeavored to magnify a trivial
incident to the stature of insubordination. The employee admitted that many weeks
before her layoff Vera Rennspies did approach her about going to this department.
Willeford asked if the transfer was to be permanent . Rennspies said it would be
under the Rennspies Vera Rennspies, however, bluntly declared that Leonhardt was not
in the sorting department and not under her supervision.
"The finding rests upon the testimony of the two employees involved . Cooper ' s denial
that he referred to "fingernails " is not credited According to him , he told her "we were
calling the laid -off people back as we need them in the order of ability, seniority , as jobs
opened up we called them back." Since it is undisputed that several new girls , without
either seniority or demonstrated ability, had previously been hired for this department it
is clear that this claim is likewise without merit
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only temporary. When Willeford started to go, Rennspies told her she had changed
her mind, and she need not go.
Had the employee actually refused work assigned to her, it is reasonable to believe
that she, a known union adherent, would promptly have been fired-or at least
the incident would have been recorded by a written warning. No such document
was introduced.
That the claim of insubordination was but a belated afterthought is indicated by
Grimes, who at first said he did not recall her layoff and "would need prompting."
The unreliability of his testimony is further demonstrated by the fact that at one
point he explained the failure to recall her before the strike (which began in July)
on the ground that there was no work for her, and only when confronted by
company records did he admit that in fact four packers were recalled, while
Willeford was not.
The Trial Examiner is convinced by a preponderance of credible evidence that
Willeford was actually discharged because of her union activity.
Jesse Alvarado: This employee, who began working for the Respondent in 1958,
until after the Union won the election despite management's bitter opposition was
considered so satisfactory a worker that he survived seasonal layoffs until March 1961.
It is undisputed that when he threatened to quit in July 1960, Supervisor Carle
told him he was doing a good job and prevailed upon him to stay by giving him a
raise.
Yet at the hearing management witnesses-with the notable exception of his own
foreman, Gonzalez-gave testimony to the effect that he had long been a shirker
of his own work and that he continually made other employees perform his duties.
If their obviously exaggerated criticism of Alvarado were to be accorded no more
than half value it would defy reason to understand why he was permitted to remain
on the payroll, survive previous layoffs and be given a raise. The Trial Examiner can
place no reliance upon such testimony. It lacks the support of his own foreman
who, as noted above, was not shown to be unavailable as a witness.
On the contrary, it is found that Alvarado was effectively discharged to rid the
plant of an active union leader. He was elected vice president of this organiza-
tion in February, a fact which, it is uncontradicted, became known to his foreman
upon that individual's inquiry of Fernandez, another employee. It is reasonably
inferred that management utilized a seasonal layoff to curtain its intent to weed
out known union leaders and adherents. Alvarado was a victim of this unlawfully
discriminatory action.
Frank Guiterrez: This employee, also a union officer, was laid off on March 27
from the laboratory department and since then has not been recalled.
That his layoff was discriminatory-in that it was not in accordance with the
Respondent's policy and practice-is established by Grimes' testimony. In addition
to his laboratory service, Guiterrez was an experienced spray department worker.
Accepting the claim that in the laboratory department he lacked seniority, he was
given no opportunity to be transferred back to the spray room. Grimes admitted
that employees were shifted from one department to another.
When this inconsistency was brought to his attention Grimes then said that
Guiterrez was not recalled because he was being "saved" in layoff status for recall to
the laboratory. Yet new employees, without experience in either department, were
thereafter hired for both the spray department and the laboratory. Supervisor
Whiting admitted that he was a "good" worker.
The Trial Examiner is convinced that this employee's permanent layoff constituted
an effective discharge, and that the unlawful motive causing it was that demonstrated
in similar action visited upon other union leaders.
Credible evidence shows that his union activity was known to his foreman, Hi-
dalgo, who was consulted as to the layoff by Grimes. Shortly after the event
Guiterrez was asked by his foreman if he had been elected to a union office and he
admitted the fact.12
In addition to the foregoing six cases of discriminatory discharges, the complaint
places in issue the layoff and subsequent recall of five employees, which will next
be considered.
Zeferino Briseno: This employee, with seniority extending back to 1958, was laid
off on March 17, 1961, although at least one other packer with less seniority (Berry)
was retained. No credible evidence was produced by the Respondent to warrant
the departure from departmental seniority in her case. She was recalled, however,
on June 5.
32 Hidalgo's equivocal denial that the employee had revealed to him the identity of
union officers: "No, sir, I never did talk to him about the union much," is not credited.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1187
That her layoff, although it proved to be temporary, was motivated by an unlawful
purpose, is established by her credible testimony that shortly before the layoff she
had told Vera Rennspies that she "preferred" the Union when asked what she thought
about it. The assistant foreman then asked her if she preferred to "go out in the
hot sun." And shortly after her recall Rennspies warned her that if she again
talked about the Union she would again be fired.13
Carrie Soles: This employee also worked in the Rennspies' department, as a packer.
Her seniority extended back to 1957. Although three or four other packers with less
seniority were retained, Solis was laid off on March 28, and not recalled until the
last of May. She had never before suffered seasonal layoff.
Solis attended union meetings, at which, as noted heretofore, Rennspies said
management had its spy. And when Vera Rennspies asked her if she went to such
meetings, she replied that she did.
The Respondent endeavored to have it appear that Solis was laid off because of
absences many months earlier. If she had been, as Rennspies characterized her,
"undependable" because of previous absences, then no explanation was offered for
her recall. As a witness Solis admitted having been absent on occasions because of
illness, but her testimony to the effect that she had always had permission and had
provided explanation from doctors is not controverted. The Trial Examiner finds
no merit in the Respondent's belated effort to cover an obviously discriminatory
layoff by this pretext.
The inference is reasonable, and it is found, that like other known union adherents
in the same department, Solis was unlawfully laid off to discourage union member-
ship and activity.
Pedro Ortega: This employee was laid off from the press department on March 17,
together with the other "off-bearer" in that section, by Foreman Lopez. It is General
Counsel's claim, based upon the employee's testimony, that employee Villegas, from
another department, who had never worked in the press section, was transferred to
do Ortega's work, and that such transfer and layoff of Ortega constituted discrimi-
nation. Foreman Lopez, however, testified that Villegas did not come to work for
him until after Ortega had been recalled early in June. Thus a question of fact is
posed which might well have been resolved had company records been introduced.
They were not. Although another question of fact has heretofore been resolved
against Lopez [section B(7)] some doubt is also cast upon Ortega's testimony by
the reasonable query as to how he, laid off and away from the plant, knew that
Villegas was doing his work in the pressroom. Under these circumstances the Trial
Examiner cannot find that General Counsel has sustained his burden of proving
actual discrimination on March 17 against Ortega.
Guadalupe DeLaCruz and Teofilio DeLaSanchez: Both of these employees worked
as helpers in the kiln department. Both were laid off on March 22, together with
all other helpers in that section, by Foreman Ornelas. DeLaCruz was recalled on
June 14, and DeLaSanchez on June 7. There appears to be no real dispute as to
the fact that a number of helpers, with less seniority than these two, were recalled
to work some 3 weeks or more before they were, and it is upon this fact that
General Counsel urges discrimination. DeLaCruz accepted the recall, and returned
to work. DeLaSanchez had obtained other work during his layoff period and did
not return.
While the Trial Examiner believes that the record fully supports the contention
that both helpers suffered discriminatory treatment, in that their recalls were delayed
until after those of others with less seniority, the state of the record does not permit
a finding as to precisely the dates when each should have been recalled. It is clear,
from DeLaCruz' testimony, that by the time he returned several others who, it is
undisputed, had less seniority than he, were already at work. As to one of these
Ornelas admitted that he "could have been" recalled on May 12.
Credible testimony establishes, however, and it is found that Ornelas well knew
that both employees involved were union adherents and that he discriminated against
them in the matter of recall in order to discourage union membership and activity.
Before the layoff he had told both of them that union members would be laid off
and that those who were against the Union would be retained.
Summary: The preponderance of credible evidence establishes, and the Trial Ex-
aminer concludes and finds that (1) each of the 11 employees named above, except
18 As noted heretofore Vera Rennspies was an unreliable witness. As to the "hot sun"
incident, she said, "I don 't remember what started that particular deal that we got to
talking about it being hot ." And when asked if she had told Briseno after recall that if
she talked about the Union she would be fired, Rennspies answered equivocally: "No, sir,
because I wouldn't have the power myself to do it, anyway."
662353-63-vol. 138-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pedro Ortega, was discriminated against in order to discourage union membership
and activity; and (2) by such discrimination the Respondent interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed by the Act.
D. The refusal to bargain
General Counsel's complaint, brief and the evidence adduced by him may be
quickly summarized as a challenge of the Respondent's conduct both at the bargain-
ing table and its unilateral action on matters properly included in good-faith
bargaining. He urges that the Respondent not only refused to bargain in good
faith but also that it engaged in "bad faith" or "sham" bargaining.
The negotiations themselves will first be considered.14
1. Dilatory tactics
Meetings were held on eight dates before a strike was voted on July 11:
February 22, March 1, 8, and 23, April 14, May 10 and 11, and the morning of
July 11. Five of these eight (unless the Trial Examiner has inadvertently erred in
reviewing the reports submitted by Fryburger, described in the footnote below)
were only short morning sessions, each of less than 2 hours' duration. On the other
dates Weiss did not attend the afternoon sessions. Only two meetings were held on
successive dates-May 10 and 11, and these were arranged by a Federal mediator
The Union repeatedly urged that more frequent and more extended meetings be held
in order that agreement might be reached, but Weiss as repeatedly refused, claiming
that his other business would not permit it. The record amply reveals that during
the afternoon sessions when Fryburger substituted for Weiss little of importance
was accomplished, and that his contribution consisted mainly of a rehash of Weiss'
positions taken during the morning session-a fact which corroborates Grimes'
statement concerning the fact that Weiss was in charge on the Company's behalf.
(Grimes made this statement in response to the union representatives' vigorous protest
against the delays in negotiations )
Accepting the times noted in Fryburger's reports (and again unless the Trial
Examiner's addition is inaccurate) Weiss was actually present at negotiations less
than 12 hours during a period of about 5 months. And less than 20 hours were spent
at all sessions.
With all due respect to Attorney Weiss' commitments in other fields, the Trial
Examiner is of the opinion that the Respondent failed to fulfill its obligations
prescribed by the Act-to "meet at reasonable times," and by restricting such
meetings to times when its counsel was not busy representing other clients. Although
another section of the Act-8(b)(1)(B)-restrains a union from coercing an
employer in selection of his bargaining representative, this prohibition does not
empower that representative to let his other and private obligations unreasonably
govern the performance of his client's duties under the Act. Certification by the
Board imposed upon the one employer the obligation to meet at reasonable times
It did not authorize an unknown number of other employers in effect to become
absentee participants in the negotiations.
14 The findings as to these negotiating meetings are based mainly upon the credible and
forthright testimony of the two union spokesmen , Rail and Rowbottom Both were ex-
amined at length , on direct and cross The Respondent ' s account of these meetings,
however , was not adduced through Attorney Weiss ( who, Grimes informed union repre-
sentatives , was in charge for the employer ) but chiefly by calling to the stand Weiss'
associate , Fryburger , and through him introducing into evidence it series of written re-
ports he had submitted to management concerning the meetings Fryburger admitted
that these documents were neither verbatim minutes nor the actual notes from which
they were later prepared . The record shows that the Trial Examiner received them as
reports made and submitted to the employer by Fryburger , and that "that is all they
are received for." There having been no agreement between opposing counsel that such
documents might be deemed as in lieu of oral testimony under oath on matters therein
covered , in the opinion of the Trial Examiner they are to be accorded no more weight
than any self-serving document transmitted from an attorney to his client . Especially is
this so under circumstances uncontroverted here: (1) the documents were not made avail-
able to the Board before the hearing, although Fryburger admitted that a Board repre-
sentative during investigation requested from him "all information pertaining to the
negotiating sessions ," and (2 ) as noted heretofore , long before the Union finally became
the lawful bargaining representative the "client" had by clear implication repeatedly
informed all employees that negotiations through the Union would bring them no benefits.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1189
Of course, "reasonable times" is a term not precisely defined. Nor is the Trial
Examiner aware that either the Board or the courts have said that, to meet the
law's requirements, a certain number of meetings within a given period must be held.
In the absence of such definitive standard, it may not be held that the Respondent's
dilatory tactics in merely putting off meetings or declining to meet as often as the
Union desired were per se violations of the Act. Here, however, and particularly
when considered in the context of the Respondent's concurrent unfair labor practices,
the extremely limited time the Respondent would devote to collective bargaining is
clearly an important factor establishing a failure to negotiate in good faith 15
2. Negative negotiations
The Trial Examiner believes it would unduly prolong this report to describe in
minute details the full course of negotiations, although the meetings were com-
paratively few in a long period of time Careful review of both the oral testimony,
subjected to vigorous cross-examination, and Fryburger's reports, leads to the
summary conclusion that while the Union on many major points relating to working
conditions made appreciable concessions, the Respondent from beginning to the
last refused to grant a single immediate and monetary benefit to the employees
Concessions made by the Respondent were minor and mainly of a language nature.
Weiss consistently and persistently refused to grant any demand which bore upon
economic issues. (It may hardly be considered a "concession" of marked nature
when, after the minimum wage level was increased by law, Weiss agreed that the
employer would abide by it 1 month before he had to ) He specifically disavowed
any claim that the Company could afford no financial adjustment in wages, vaca-
tions, and paid holidays, contending only that it was company "policy" not to in-
crease costs This claim of "policy" may not be considered as having been made
in good faith and must be severely discounted in the context of preelection implied
refusal to grant union requests for benefits, and Weiss' blunt comment at the March 8
meeting:
. . . if these people made twice that much they would still live under the
same conditions and spend it before the following payday, . . . the people were
in most cases not worth the money they were receiving, . were a lot of
loafers and drunks, and . . . were not good workers in the first place 16
The single minor and apparent concession made by the Respondent concerning
wages, other than its previous offer to abide by the law a month early, was offered
at the final morning meeting on July 11. It proposed that it would grant a 71/2 cents
hourly increase sometime before January 1963, to 75 percent of the employees
earning more than the minimum wage of $1.15 This proposal, however, was ren-
dered meaningless and futile by the provision that the Union sign a 2-year contract
without a wage-reopener clause. The selection of 75 percent of the few employees
receiving more than the minimum was left to the employer. And the lack of good
faith in the making of even this limited offer was shortly thereafter demonstrated
when, as noted more fully below, the Respondent in fact and unilaterally increased
wages considerably more than it had offered at the bargaining table.
The Trial Examiner believes that the Court of Appeals for the Fifth Circuit has
aptly characterized bargaining table conduct such as exhibited in this case, in N.L.R.B.
v. Herman Sausage Company, Inc., 275 F. 2d 229, where it said:
. .. bad faith is prohibited though done with sophistication and finesse. Con-
sequently, to sit at a bargaining table, or to sit almost forever, or to make
concessions here and there, could be the very means by which to conceal a
purposeful strategy to make bargaining futile or fail. Hence, we have said in
more colorful language it takes more than mere "surface bargaining," or
"shadow boxing to a draw," or "giving the Union a runaround while purporting
to be meeting with the Union for the purpose of collective bargaining."
In short, the Trial Examiner concludes and finds that the nature of the negotiations
by the Respondent from the first meeting to the last constituted a refusal to bargain
in good faith and amounted to "sham" or "bad faith" bargaining.17
15 International Powder Metallurgy Company, Inc, 134 NLRB 1605
16 The quotation is from Rail ' s credible testimony. Weiss did not deny making this
statement . The Trial Examiner does not consider Grimes ' testimony to the effect that he
did not hear it made , and Fryburger 's denial that it was voiced as effective refutation of
Rail's testimony.
17 In many aspects this case is similar to that heard by the same Trial Examiner several
years ago-Reed & Prince. Upon the facts there presented the Court of Appeals for the
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Layoffs and seniority list
As found heretofore, the Respondent in mid-March suddenly and without prior
notice either to the employees or to the Union measurably cut back its working force
by one-third or more. Although the privilege of deciding that an economic layoff
is required belongs to the employer, absent an emergency or other reasonable ex-
planation it is the employer's duty at least to notify and discuss with the employees'
lawful representative the methods of selecting employees to be laid off, before the
event. No substance may be found in a claim that because there had been previous
seasonal layoffs, the March 1961 reduction followed past practice, and therefore
was not a proper subject of collective bargaining. A new element had intervened
since the October 1961 layoff-an obligation to deal with the Union concerning all
matters affecting employment. The Respondent cannot maintain that the decision
had been made before this obligation had been, by the Board's certification, placed
upon it. Grimes admitted that he had been instructed by his superiors to cause the
layoff only a few days before March 17-a month and a half after certification,
and after three negotiating meetings had been held.
At the March 23 meeting, having learned of the severe cutback in the number
of employees it represented, the Union raised the question vigorously. Grimes said
that he believed departmental seniority had been the guiding factor in selection of
individuals. The union representative then requested that it be provided with such
seniority list.
No seniority list was then or thereafter submitted to the Union.18
The Trial Examiner concludes and finds that by failing to consult with the Union
concerning the layoff of March and by its failure to provide the Union with a seniority
list, obviously a necessary item to assure itself that the employer's declared policy
had been followed, the Respondent further failed to bargain in good faith.19
4. Changes in working conditions
The credible testimony of several witnesses establishes and the Trial Examiner
finds that shortly after the Union won the election and thereby became their bar-
gaining representative, the Respondent altered working conditions and rules. Such
changes were made without consultation with the Union. They include:
(1) Contrary to practice until then, employees in the packing and sorting de-
partment were informed that individual production records would be kept. And
just before the strike began Foreman Rennspies informed employees that if they
failed to meet production "quotas" they would be fired.
(2) Also contrary to practice some of the packers were required to pack for two
or more sorters. At the beginning of the strike, however, when union adherents had
left the plant, the practice was resumed of one packer to a sorter.
(3) Contrary to the custom before January 1961, supervisors deprived employees
of the privilege of bringing coffee and refreshments to their work places, and em-
ployees were prohibited from leaving their station except for lunch and breaks.
(4) A new rule was invoked requiring employees to clock in and out when going
outside the plant for lunch.
(5) A new rule was established prohibiting employees from entering the plant
more than 10 minutes before starting times.
(6) As noted above in section B (1), management inaugurated a new application
form containing a query about union membership. Not only was such interrogation
First Circuit, in Reed & Prince Manufacturing Company, 205 F. 2d 131 , certiorari denied
346 U.S. 887, commented:
It is true, as stated in N L R.B. v. American National Ins. Co., 1952, 343 U S.
395, 404, . . . that the Board may not "sit in judgment upon the substantive terms
of collective bargaining agreements " But at the same time it seems clear that if
the Board is not to be blinded by empty talk and by the mere surface motions of
collective bargaining , it must take some cognizance of the reasonableness of the posi-
tions taken by an employer in the course of bargaining negotiations.
18There is no dispute that a seniority list was never provided. It Is Fryburger's lame
claim that no such list was ever requested . Circumstances deprive this claim of reason-
able belief . Once management declared , as Grimes admitted , that seniority was the guid-
ing factor , no semi-intelligent union representative would fail to ask for the supporting
information . And a fair reason why the seniority list was not submitted is revealed by
earlier findings in this report to the effect that in many cases of layoff and recall
seniority was not followed.
See Tennessee-Carolina Transportation, Inc, 108 NLRB 1369 , and Gulf Atlantic
Warehouse Company, 129 NLRB 42.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1191
an independent violation of Section 8(a) (1) of the Act, but also, since it was effectu-
ated without consultation with the Union, a violation of Section 8(a)(5). As the
record shows, it was used not only for new employees, but also for regular employees
in temporary layoff upon their recall. It would appear fundamental that hiring and
recall are the first essentials in employment.
As noted, these and other changes in working rules and conditions were made
by management without consultation with the Union. That their imposition was
retaliatory appears to be a reasonable inference.
In any event, effecting such changes unilaterally was plainly an act of bad-faith
bargaining.20
5. Individual bargaining
The Trial Examiner finds merit in General Counsel's contention that the following
conduct of management also constituted flagrant refusal to bargain:
(1) The same hiring application form referred to above required the applicant
to agree to a probationary period of 90 days. The question of such period was at
the same time on the bargaining table.
(2) After the strike began Assistant Foreman Pacheco went to the home of a
striking employee, Regalado, urged him to return to work and stated that if he did
he would probably be made a foreman, as he had himself been promoted.
(3) Before Regalado had joined the strike, but after it began, it is his credited
testimony that Grimes told a number of employees then working that the Company
wanted to give them a raise, if approved by its attorney.
(4) Shortly after the strike began, also, Foreman' Lopez promised employee
Ramos a raise in pay.
(5) As commented upon above, in September and while the strike was still in
progress, management unilaterally granted many individual increases.
Management's approach to individual employees, as above described, on matters
properly within the scope of collective bargaining, was of a pattern-outlined even
before the election-with its other attempts to shunt the Union into a role of
ineffectiveness 21
6. Summary
Pursuant to the Board's certification, it is concluded and found that at all times
since January 20, 1961, the Union has been and now is the exclusive bargaining
agent, for purposes of collective bargaining of all employees in an appropriate unit
consisting of:
All production and maintenance employees, of the Respondent, including
warehouse employees, but excluding office clerical employees, guards, watch-
men, plant clerical, professional employees, and supervisors as defined in the
Act.
It is further concluded and found that, since February 3, 1961, when the Union
first asked negotiations, the Respondent has failed and refused to bargain in good
faith with the Union as required by the Act, and that by such refusal, by the un-
lawful discrimination against employees described in section C herein, and by the
conduct described in section B herein, the Respondent has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
E. The unfair labor practice strike
On July 11, 1961, at a union meeting the members voted to strike. In view of the
long list of unfair labor practices engaged in before that date, described in preceding
pages, no lengthy discussion appears necessary as to the cause of the strike. There
2OIn Armstrong Cork Company v. NLRB., 211 F. 2d 843 (C.A. 5), the court said:
Good faith compliance with Sections 8( a) (5) and (1) of the Act presupposes that
an employer will not alter existing "conditions of employment" without first con-
sulting the exclusive bargaining representatives selected by his employees, and grant-
ing it an opportunity to negotiate on any proposed changes.
See also Winter Garden Citrus Products Cooperative, 114 NLRB 1048, enfd . 238 F. 2d
128 (C A. 5).
In Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, the Supreme Court said:
Bargaining carried on by the employer directly with the employees, whether a
minority or a majority, who have not revoked their designation of a bargaining agent,
would be subversive of the mode of collective bargaining which the statute has
ordained. . . .
See also Kohler Co., 128 NLRB 1062 , enfd . In part 300 F. 2d 699 (C.A.D.C.).
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can be no doubt that the "cause" began even before the election, when the employer
forecast events which it thereafter made certain would occur. It steadfastly con-
ceded none of the Union's material demands, it gave and took away unilaterally,
and discriminated unlawfully against union adherents
In short, the Trial Examiner concludes and finds that the Respondent, by its un-
lawful conduct, caused the strike which began on July 12, 1961. (The Trial Ex-
aminer agrees with General Counsel's contention that the final "straw" was man-
agement's failure to provide certain information regarding the layoffs by an hour
agreed upon at the final meeting, July 11. Realistically, however, if fables may be
viewed as real, it was the full load and not the last straw which caused the camel's
collapse.)
After that date and on several occasions a union representative communicated
with the Federal mediator (in whose hands negotiations had been up to the date
of the strike) concerning the possibility of further meetings with the Respondent.
No meetings were held
On December 13, 1961, counsel for the Union informed the Respondent that the
strike was called off, and made an unconditional offer on behalf of all striking em-
ployees to return to work. On the same date individual employees listed on
Appendix A sent in letters applying unconditionally for reinstatement. It appears
that some few have been reemployed since then. Whether or not they have been
reinstated, with full rights and privileges, the record does not reveal. In any event,
by letter of December 18 to the Union counsel for the Respondent refused im-
mediate reinstatement
It is concluded and found that, because of the unfair labor practice nature of
the strike, the Respondent was under the obligation to accord all such applicants
immediate reinstatement, discharging, if necessary, all new employees hired since
July 11, 1961. By refusing so to do, the Respondent further violated Section 8(a)(3)
and (1) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It has been found herein that the Respondent unlawfully discharged certain em-
ployees, discriminated in regard to the recall of other employees, and did not im-
mediately reinstate, upon an unconditional offer to return to work following an
unfair labor practice strike, the employees named in Appendix A It will be recom-
mended that the Respondent offer all such employees, found to have been discrimi-
nated against and who have not been reinstated, 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 by reason of the discrimination against them,22
by payment to each of them of a sum of money he or she would have earned as
wages, absent the discrimination, from the date of the discrimination to the date of
recall or offer of reinstatement, as the case may be, in the manner prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289.
In view of the extended and continued nature of the Respondent's unfair labor
practices, it will be recommended that it cease and desist from in any manner
infringing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Operative Potters , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
-^In the case of DeLaCruz, as noted above, the record does not reveal precisely what
date he should have been, absent discrimination, recalled The discriminatory period
may be determined during compliance proceedings.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1193
2. All production and maintenance employees of the Respondent, at its San
Antonio, Texas plant, including warehouse employees, but excluding office clerical
employees, guards, watchmen, plant clerical, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
3. By virtue of Section 9(a) of the Act the said Union has been since January 20,
1961, and now is, the exclusive representative of all employees in said appropriate
unit for the purpose of collective bargaining with respect to rates of pay, wages,
hours of employment and other terms and conditions of employment.
4. By refusing, since February 3, 1961, to bargain collectively in good faith with
the said labor organization as the exclusive representative of all employees in the
said appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
5. By discriminating as to their tenure of employment against employees Mary
Buckalew, Doris Hememeyer, Ronnie Leonhardt, Jesse Alvarado, Frank Guiterrez,
Viola Willeford, Zeferina Briseno, Carrie Solis, Guadalupe DeLaCruz and Teofilio
DeLaSanchez, and by refusing immediately to reinstate employees listed on Ap-
pendix A, thereby discouraging membership in and activity on behalf of the above-
named labor organization, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices in violation of Section 8(a)(1) of the Act
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record, the Trial Examiner recommends that Aztec Ceramics Company,
a Division of The Texstar Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Operative
Potters, AFL-CIO, as the exclusive representative of all its employees in the follow-
ing appropriate unit:
All production and maintenance employees, including warehouse employees,
excluding officer clerical employees, guards, watchmen, plant clerical, professional
employees, and supervisors as defined in the Act
(b) Instituting changes in the terms and conditions of employment in the ap-
propriate unit without first consulting with and bargaining with the aforementioned
exclusive representative concerning wages, hours, and conditions of employment
(c) Interrogating employees concerning their union membership activities and
sympathies; threatening employees with loss of employment if they join the Union;
and promising a wage increase or any other benefits to discourage union membership
or activities.
(d) Discouraging membership in the International Brotherhood of Operative
Potters, AFL-CIO, or any other labor organizations, of its employees by laying off.
discharging, or refusing to reinstate any of its employees because of their union
membership or activities; or in any other manner discriminating in regard to hire
or tenure of employment, or any term or condition of their employment.
(e) In any other manner interfering with, restraining, or coercing employees in
the the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities
2 Take the following affirmative action:
(a) Upon request, bargain collectively with International Brotherhood of Opera-
tive Potters, AFL-CIO, as the exclusive bargaining representative of the employees
in the above-described appropriate unit, and embody any understanding reached in
a signed contract.
(b) Offer immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and privi-
leges, to all those employees who were on strike on and after July 12, 1961, listed
in Appendix A hereto and who have not already been reinstated to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges , dismissing if necessary any persons hired by the Respondent on or
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after July 12, 1961, who were not in the Respondent's employ on that date; offer
employees listed in Appendix B, who were discriminatorily laid off and/or refused
recall, except DeLaSanchez, immediate and full reinstatement to their former and
substantially equivalent positions without prejudice to their seniority and other
rights and privileges.
(c) Make whole the employees listed in Appendixes A and B for any loss of
pay they may have suffered or may suffer because of Respondent's discrimination
against them, in the manner set forth in the section entitled "The Remedy."
(d) Make available to the National Labor Relations Board or its agents for
examination and comments all payroll records, social security payment records, time-
cards, personnel records and reports and all other records necessary for determina-
tion of the amounts of backpay and interest due and the right of reinstatement
under the terms of our order herein.
(e) Post at its plant at San Antonio, Texas, copies of the attached notice marked
"Appendix C." 23 Copies of said notice, to be furnished by the Regional Director
of the Twenty-third Region, shall, after being duly signed by the Respondent, be
posted by it immediately upon receipt thereof and maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps should be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material. Notify
the Regional Director for the Twenty-third Region in writing within 20 days from
the date of the service of this Intermediate Report what steps the Respondent has
taken to comply herewith 24
21 In the event that these recommendations be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
u In the event that these recommendations be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Alfredo Acuna Joel T. Garcia Pedro Ramos
Lilia A. Acuna Jesse T. Gomez Manuel Regalado
Joe Alderete Avelino Gonzales Pablo S. Reyna
Epifanio Alvarado Ramon Gonzales Alberto Rodriguez
Jesse T. Alvarado Olga Huebner Marcial Rodriguez
Jose Balmarez Pedro Lopez Martin Ruan
Antonio Briseno Frank P. Martinez Pedro Saenz
Antonio Briseno, Jr. Santos Martinez Candelario B. Sanchez
Julia Briseno Adolfo Moreno Maria M. Sanchez
Zeferina Briseno Rose Mary Moreno Gabriel Santellan
Francisca Campos Raymond L. Narro Jesse Santellan
Maria Campos Arthur Nava Mary R. Santellan
Agapito S. Castillo George Nava Raoul Serenial
Jesse Celaya Beatriz Ochoa Carrie Solis
Alice G. Chavez Margarita Ochoa Armanelo F. DelToro
Guadalupe DeLaCruz Pedro Ortega Eliza DelToro
Rosendo Estrada Tino Pacheco Arturo Troncoso
Maria Estrada Ascension Patlan Matilde Troncoso
Fidel Farias Catalina G. Perez Jesus Trevino
Richard R. Fernandez Dionicio Ramirez Eloise C. Vargas
Adelina Garcia Manuel Ramirez Consuelo V. Zapata
APPENDIX B
Zeferina Briseno Carrie Solis Frank Guiterrez
Viola Willeford Jesse T. Alvarado Guadalupe DeLaCruz
Mary Buckalew Doris Heinemeyer Teofilio DeLaSanchez
Ronnie Leonhardt
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1195
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in International Brotherhood of Oper-
ative Potters, AFL-CIO, or in any other labor organization , by discharging,
laying off, or refusing to reinstate any of our employees because of their union
membership and activities , or in any other manner discriminate in regard to
hire or tenure of employment, or any term or condition of employment.
WE WILL NOT institute changes in the terms and conditions of employment in
the appropriate unit herein described without first consulting with and bar-
gaining with the aforementioned labor organization , the exclusive bargaining
representative of such employees.
WE WILL NOT interrogate employees concerning their union membership, ac-
tivities , and sympathies in a manner violative of Section 8 (a) (1) of the Act;
nor threaten them with loss of employment if they join the Union ; nor promise
wage or other benefits to discourage union membership.
WE WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist the above -named or any other labor organization , to bar-
gain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
WE WILL , upon request, bargain collectively with the above -named labor
organization as the exclusive bargaining representative of the employees in the
appropriate unit described below , and embody any understanding reached in a
signed contract.
WE WILL offer immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other rights
and privileges, to all those employees listed in Appendix A attached hereto
and who have not already been reinstated to their former or substantially equiv-
alent positions , dismissing if necessary any persons hired by the Respondent on
or after July 12, 1961 , who were not in the Respondent 's employ on that date;
and similarly offer immediate and full reinstatement to all employees listed on
Appendix B, attached hereto.
WE WILL make whole the employees listed in Appendixes A and B, for any
loss of pay they may have suffered by reason of the discrimination against them.
The appropriate unit is:
All production and maintenance employees , including warehouse em-
ployees excluding office clerical employees , guards, watchmen, plant
clerical , professional employees and supervisors as defined in the Act.
AZTEC CERAMICS COMPANY, A DIVISION
OF THE TEXSTAR CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board 's Regional Office, 650
M & M Building , 1 Main Street, Houston, Texas, Telephone Number, Capitol 2-7201,
Extension 041, if they have any question concerning this notice or compliance with
its provisions.