Akin Products Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1270 (N.L.R.B. 1952)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fessional and technical employees , watchmen , and supervisors as de-
fined in Section 2 (11) of the Act.
WE wrLL offer Harvey Leon Christian 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 pay suffered as a result of the discrimination against him.
All our employees are free to become or remain members of INTERNATIONAL
ASSOCIATION OF MACHINISTS , or any other labor organization . We will not dis-
criminate in regard to their hire and tenure of employment or any term and
condition of employment because of membership in or activity on behalf of any
such labor organization.
STANDARD CABLE 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.
AKIN PRODUCTS COMPANY and CITRUS, CANNE RY WORKERS AND FOOD
PROCESSORS UNION No. 24473, AFL. Case No. 39-C,1-108. June
3011952
Decision and Order
On October 22, 1951, Trial Examiner Peter F. Ward issued his In-
termediate 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 and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
and the Respondent filed exceptions to the Intermediate Report; the
General Counsel also filed a supporting brief.
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 [Chairman Herzog and Members Houston and Murdock].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case,' and hereby adopts the findings, conclusions, and recomluenda-
1 Together with his exceptions, the General Counsel filed with the Board a motion to
correct the record. The motion is based on errors in transcription, as set forth in a letter
from the official reporter addressed to the Trial Examiner on August 4, 1951. Copies of
both the official reporter's letter and the General Counsel's motion were mailed to the
Respondent, and by letter dated December 6, 1951, the Board's Executive Secretary Invited
the Respondent to state its position on the motion. No response has been received from the
Respondent. The motion is hereby granted, the record is hereby corrected accordingly,
and the official reporter's letter is hereby received in evidence.
99 NLRB No. 39.
AKIN PRODUCTS COMPANY 1271
tions of the Trial Examiner , but with the following additions and
modifications.'
1. For the reasons stated in the Intermediate Report, the Trial
Examiner's ruling denying the Respondent 's motion to dismiss the
complaint on the ground that the charging Union 's compliance with
the filing requirements of Section 9 (f), (g), and ( h) of the Act was
not shown on the record, is affirlned. In any event , we are adminis-
tratively advised that , when the complaint issued on May 15, 1951,.
the Union was, and it now is, in full compliance with those require-
ments.
2. The complaint alleges that in 1950 the Respondent unlawfully
discriminated against 10 female employees , either by laying them off
or by refusing to hire them . As to two of these-Mmn'uella Alvarado
and Elfida Farias-, the Trial Examiner dismissed the complaint on
the ground that there is insufficient evidence to support the allegation.
Although the General Counsel excepted generally to the Trial Ex-
aminer's conclusions , he did not file specific exceptions as to these 2
employees . Neither of them appeared at the hearing and the record
contains no direct testimony linking them with the general antiunion
activity of the Respondent . We therefore adopt the Trial Examiner's
recommendations in this respect , and we shall dismiss the complaint
as to Alvarado and Farias.
The Trial Examiner found that the' Respondent violated Section
8 (a) (3) by laying off and refusing to rehire Olivia Garcia. He
made no finding as to Frances Guajardo . With respect to the remain-
ing six women , although he found that at the time they were laid off
or refused employment their supervisor voiced the Respondent's in-
tention of eliminating union adherents from its working force, the
Trial Examiner concluded that there was insufficient evidence to sup-
port the allegation of illegal discrimination in employment . Except
for the case of Olivia Garcia, we disagree with the Trial Examiner's
conclusion , for, as appears in full detail in the Intermediate Report,
the record is replete with direct, uncontradicted , and properly credited
testimony that all eight of these women were themselves given to
understand that the reason for their discharge or rejection was their
union activity.
The Respondent's determination to stamp out any thought of con-
tinuing union activity among its employees is so clearly and meticu-
lously set forth in the Intermediate Report as to require little comment
here. The coercion upon the women employees was exerted through
Footnote 1-Continued
The Intermediate Report contains a number of minor errors , for the most part inac-
curacies in reporting portions of the record testimony. We deem it unnecessary to correct
each of these errors , as they are not sufficiently material to affect our decision herein.
' The request of the Respondent for oral argument is hereby denied, as the record and
the exceptions and brief adequately present the issues and the positions of the parties.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Faustina Salinas, who, in all material respects, was their immediate
boss. The only woman supervisor who could converse fluently with
female workers in Spanish, Salinas regularly selected employees from
the applicants for employment, directed their work, changed their
assignments, and decided the order of their release at the end of each
season or at times of temporary slack. In short, so far as the un-
skilled female hands were concerned, she exercised practically inde-
pendent control over their fortunes at this plant. The numerous
instances of interrogation, threats of discharge, and outright state-
ments of dismissals by her as retribution for union adherence, stand
completely uncontradicted.3 She did not testify.
The Respondent's winter season slackens appreciably in January
of each year. The record shows that for the successive weeks ending
January 4, 11, 18, and 25, 1950, over-all employment stood at 200, 195,
177, and 90 employees, respectively. How many of these were women
does not appear, but it is clear that they were in the majority.
On January 16, 1950, Salinas laid off Olivia Garcia, because, as she
told Garcia then and there, "Mr. Akin did not want workers of the
Union in his plant." Maria' Villareal, who had been with the Re-
spondent as far back as 1941, found her time card missing from the
card rack one day in January, and was told that Akin had removed
the cards of the union employees. Maria Guerra was laid off on
January ' 16. When she asked Salinas why she had been selected,
Salinas answered that "Mr. Akin was not going to employ those in
the Union, only old worke`:rs." Salinas also laid off Maria Urrutia on
January 14. When Urrutia asked why, she was told by Salinas :
``we were laid off because we belonged to the Union." At about the
same time, Salinas also laid off Olivia Rodriguez, saying that there
was no more work and that only a smaller group was to be retained.
Rodriguez then spoke to Mike Santana, another supervisor, who said
that "if the girls wanted to have 75¢ per hour, they would not even
have 400," and that they "should not blame anyone except the Union."
We reject the Respondent's assertion that the release of these five
women was occasioned only by the reduction in force incident to a
normal falling off of business . It is not claimed that the general lay-
off was related to the employees' union activities. Nevertheless, how-
ever short-lived their remaining period of employment might .have
been in that particular season, and whatever their normal chances of
survival in a nondiscriminatory layoff, it is clear, and we find, that
the Respondent selected them at that time for the purpose of deterring
S Among the many statements by Salinas which the Trial Examiner found to be inde-
pendent violations of Section 8 (a) (1) was her statement to Olivia Garcia in December
1948 that if union organizers approached the employees, the women were to send them first
to see Mr. Akin, the owner of the company. Because this incident occurred more than
6 months before the filing of the original charge in this proceeding , we make no finding es
to this conversation . See Section 10 (b) of the act.
AKIN PRODUCTS COMPANY 1273
them, as well as the other employees, from persisting in their self-
organizational activities. The unequivocal admissions by the very
person who hired and discharged them, coupled with the many other
instances of illegal interrogation and threats directed to the same
employees, make any other conclusion unreasonable. The fortuitous
coincidence of a slackening season cannot serve as a license for the
employer to engage in discriminatory conduct clearly violative of
the proscriptions of the Act .4 We find that by discharging Olivia
Garcia, Maria Villareal, Maria Guerra, Maria Urrutia, and Olivia
Rodriguez in the course of its January 1950 season, the Respondent
violated Section 8 (a) (3) of the Act.
Following a spring season, the Respondent's plant reopens at about
the beginning of November of each year. By November 1, 1950, 25
women had been hired. In the successive weeks following, the number
of women rose to 37, 39, and then 40; it remained at 38 up to the week
ending December 6, and then started to taper off.
Olivia Garcia applied to Salinas for employment several times
before November and was refused. A number of other girls were
hired during this period. On one occasion, on about November 6,
while Garcia was waiting to be put to work, Salinas placed seven
women at the workbenches and, in the presence of all, seized the AFL
buttons which Garcia was wearing and said "Look." Finally, Salinas
told Garcia that she could talk to Akin if she wished. Garcia did
not succeed in seeing Akin until about December 6; she was accom-
panied by Frances Guajardo, who had also been refused employment
by Salinas. In response to their request for work, Akin said that he
would go on vacation before hiring anyone sent to him by the Union 6
Villareal also applied for work in November; she was wearing her
union button and was accompanied by 2 other women applicants, who
wore no buttons. Villareal was refused work but the other 2 were
employed a day or two later. Por f oria Cantu also sought work in
November, as she had in the past. Salinas refused to hire her and
told Cantu that there was no work for people in the Union. In like
fashion, she told Manuella Rodriguez, who applied at the same time,
that there was no work for her because "she was in the Union".
Urrutia also returned in search of work in November. She, too, wore
her -union button and was refused employment, although other women
then at the plant seeking work were hired. And finally, Olivia Rod-
riguez also applied in October. Salinas told her to wait around; she
hired 10 other women while Rodriguez waited in vain. Rodriguez
returned in November, and Salinas again asked her to stand by; this
4 W. C. Nabors Company, 89 NLRB 538, enforced N. L. R. B. v W C Nabors Company,
196 F. 2d 272 (C. A. 5).
6 Guajardo ' s version of Akin's statement that day varies somewhat from that of Garcia.
This variance is of no significance , as the Trial Examiner properly credited Garcia, and
as Akin did not specifically deny having made the statement either way.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, while Rodriguez waited, Salinas put 7 other women to work
and then and there called the attention of all the other women to the
AFL button which Rodriguez was wearing.
In denying the allegation that the employees named in the complaint
were laid off or refused work because of their union sympathies, Akin
contended that the selection followed other criteria. Inconsistently,
however, he listed these as seniority in employment over the years,
willingness to work, and, for the purpose of obliging Salinas, prefer-
ence to her relatives. Apart from Akin's bald assertion, the record
does not show that any one of these tests was followed with any con-
sistency. Older employees were released and new ones retained.
Evidence on the comparative "willingness" of the many women work-
ers is completely lacking. And, as for Salinas favoring her relatives,
such a basis for selection, on the record in this case, could scarcely save
the Respondent from the consequences of her antiunion activities. In
any event, it was Salinas who did the choosing and, as she was never
called to testify,-any finding as to her intentions must rest only,in the
evidence before us.
The Trial Examiner was satisfied, and he properly found, that in
selecting the women to work for the November season, Salinas made
every effort to weed out union members or adherents. He could hardly
have found otherwise in the light of the again explicit admissions by
Salinas to the various applicants, and Akin's approval of her antiunion
policy in his statement to Garcia and Guajardo, when he refused to
override Salinas' rejection of their applications. Indeed, the Trial
Examiner not only found the evidence strongly indicative of antiunion
motivation in the November rejection of each of the six women who
applied, but as to some he was convinced that Salinas' statements to
them at the moment of refusing them employment was intended to
discourage their union activity. For example, in discussing the case
of Villareal, he says that "the record clearly discloses that Salinas took
an active part in eliminating Union members from employment," and
that "such may have been her intention in November 1950." As to
Cantu, the Trial Examiner specifically finds that Salinas' statement to
this employee that there was no work for union people "was put forth
for the purpose of discouraging membership therein [in the Union]."
Again, in considering the evidence on Urrutia, he states : "Upon the
record it is clear that Salinas missed no opportunity to make it clear
that Respondent wanted no union members as its employees." s
"Similarly , in passing upon the January discharge of Maria Guerra, as to whom the
Trial Examiner also recommended dismissal , he says : "the fact that Guerra was informed
at the time of her layoff that Akin was not going to employ those in the Union merely
indicates that Salinas and Foreman Santana were of the opinion that she was a union
member."
AKIN PRODUCTS COMPANY 1275
Despite this evidence, the Trial Examiner felt constrained to find no
violation as to these November applicants, substantially because there
was not enough work for all the women who returned for that season.
Again, as in January, the record does show that there was insufficient
work for all the available help. Our disagreement with the Trial
Examiner centers therefore upon what relevance, to the issues raised
in the complaint, should be accorded the fact that the Respondent could
not hire all applicants or retain an existing staff. Unlike the Trial
Examiner, we deem this fact of little significance in determining the
Respondent's real motive in the selection. Where, as here, it appears
affirmatively that certain employees were rejected because of their
union activity, it can be no defense to the complaint that the Employer
could not hire both the women it did select and the ones it rejected.
As the Board has long held, an Employer may not utilize an economic
reduction in its over-all employment as a means for discriminating
against those employees who were union members or otherwise active
on behalf of the Union.' Accordingly, we find that the Respondent's
refusal to employ Olivia Garcia, Frances Guajardo, Maria Villareal,
Porforia Cantu, Manuella Rodriguez, Maria Urrutia, and Olivia Rod-
riquez in about November 1950, in each instance constituted a viola-
tion of Section 8 (a) (3) of the Act.
3. We also disagree with the Trial Examiner's conclusion that the
complaint allegation of discriminatory discharge as to Reynaldo
Hernandez is not supported by the record. Hernandez was hired at
the peak of the season. After he had worked 1 day, his foreman,
Houston, asked him whether he belonged to the Union, and received
an affirmative reply. The next day Houston told Hernandez that
there was no more work for him and discharged him.
During December 1949, when this incident occurred, the plant was
in full operation; there was no appreciable reduction in the number
of employees, totaling about 200, until the middle of January. Her-
nandez had worked throughout the preceding season, always doing
unskilled work, and changing from one assignment to another as the
varying needs of the plant operation required. Even assuming, as
the Respondent asserts, that there was no more crate lifting to be done
on the day Hernandez was discharged, no reason is shown why he was
not used on general work as in the past. He was not told in this
instance that he was hired on any basis other than the usual seasonal
work.
His sudden discharge immediately after revelation of his union
membership is explained by other evidence in the -record. When
7 Brown's Tie and Lumber Company, 66 NLRB 637. See also Swtnerton and Walberg
Company, 94 NLRB 1079.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hernandez returned for his pay, the day after his discharge, and
asked his foreman whether there would be more work for him, Houston
mentioned no possibility of occasional recall, nor did he speak of
temporary employment, the status which the Respondent placed on
Hernandez at the, hearing. Instead Houston said that Hernandez
"was not going to get any more work done there." Also, at about this
time, Salinas openly checked into the union membership of the female
employees, and told them that Akin wanted her to identify the union
members because he did not want "workers of the Union." And, in
the following month, when Hernandez' brother, Raul, was also dis-
criminatorily discharged, he was told by Santana, his foreman, that
Akin had learned that Raul's father and brother (Reynaldo) belonged
to the Union.
We think it is clear in these circumstances that Reynaldo Hernandez
was not discharged because of lack of work but rather, consistently
with the Respondent's proven antiunion resolve and with the other
illegal discharges found, for the purpose of eliminating another union
member from its payroll. Upon the foregoing facts, and on the record
as a whole, we find that the discharge of this employee constituted a
violation of Section 8 (a) (3) of the Act.
4. The complaint alleges that the Respondent's refusal in November
1950, to hire six of the women named in the complaint also violated
Section 8 (a) (4) of the Act. The Trial Examiner ignored this
aspect of the case. The General Counsel filed general exceptions to
the Trial Examiner's failure to find all the violations alleged in the
complaint, but in his comprehensive brief made no argument in support
of an 8 (a) (4) finding.
As set forth in the Intermediate Report, between the January dis-
charges and the November events the Union instituted and carried
through to completion a representation proceeding in the Board's
Regional Office: The Union lost the election. Apparently, the 8 (a)
(4) allegation rests on the theory that the discrimination practiced by
the Respondent in November was caused, in part, by some role which
the November applicants may have played in the representation case.
The record is barren of any evidence showing either that any of these
women participated in the representation proceeding, or that the
Respondent's refusal to hire them in November was in any way related
to that activity by their Union. Accordingly, as there is no evidence
supporting this allegation, we shall dismiss the complaint to that
extent.
The Remedy
We agree with the Trial Examiner's conclusion that the unfair
labor practices found disclose an underlying attitude by the Respond-
ent to thwart its employees' right under Section 7 (a) of the Act
AKIN PRODUCTS COMPANY 1277
generally. Like the Trial Examiner, therefore, we shall order the
Respondent to cease and desist not only from the illegal conduct
shown, but also from in any other manner infringing upon the self-
organizational rights of the employees.
The record shows that apart from a small group of maintenance
workers, the bulk of the Respondent's employees are drawn each
season from the neighboring towns, and that they do not all maintain
a continuous employee status. A general call, described as a grape-
vine system, is circulated from mouth to mouth a day or so before the
plant opens. The women who desire work appear at the plant on the
opening day and the Respondent, acting primarily through Faustina
Salinas, selects the number it needs. If more than the women present
are required, another grapevine call goes out. Otherwise, the women
who are not needed are told to return the next day or are kept on call,
again through the same vague mouth-to-mouth communication system.
As stated above, it does not appear that the Respondent follows
any established method for selecting its employees in any one season,
or that any system of seniority prevails. So far as appears, after the
discrimination here found, the Respondent continued its business
with a reduced personnel. Because of the loose system of hiring,
without any definite or predictable employer-employee relationship,
our customary order of reinstatement would be inapplicable.,, Never-
theless, the broad extent of the Respondent's unlawful conduct in
denying employment to certain employees because of their desire to
exercise the rights guaranteed by the Act, requires a remedial order
including some provision of reinstatement for them. We shall, there-
fore, order the Respondent to place the names of the eight women
here involved on a preferential hiring list and offer each of them em-
ployment in their former or substantially equivalent positions, with-
out regard to their seniority or other rights and privileges previously
enjoyed, at the start of its next seasonal plant operation following
issuance of this Decision and Order.9
As to Raul Hernandez and Reynaldo Hernandez, no reason appears
for deviating from the Board's established reinstatement policy.
Raul, a truck driver, had worked regularly for 3 years, and Reynaldo,
a general laborer, for the entire season before his discharge. It was
not shown that these two employees were drawn for any amorphous
pool of workmen, comparable to that from which the women workers
are selected. We shall, therefore, order the Respondent to reinstate
these two employees in accordance with the usual Board practice.
See, for example , Brown's Tie and Lumber Company, 66 NLRB 637, and Bermite
Powder Company, 66 NLRB 678.
@ Compare the Board's reinstatement provision in Consolidated Western Steel Corporation,
94 NLRB 1590.
1278 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
We shall also order the Respondent to make whole all 10 of these
employees for any losses incurred because of the discrimination against
them for the period from the date of the discrimination to the Re-
spondent's offer of reinstatement, less net earnings, losses and earn-
ings to be computed in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."" Because the Trial
Examiner dismissed the complaint as to 8 of these employees, no back
pay is awarded to them for the period between the dates of the In-
termediate Report and this Order. It is possible that 1 or more of the
8 women involved might have been laid off in January 1950, or re-
fused employment later in November of that year, in the general
reduction in the work force, even if the Respondent's selection on each
occasion had been made on a nondiscriminatory basis. This possibil-
ity will be taken into consideration in determining the amount due to
the employees in compliance with our Order herein.
The Board also expressly reserves the right to modify the back-pay
provision and to make such supplements thereto as may hereafter
become necessary in order to define or clarify its application to a
specific set of circumstances not now appearing.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Akin Products Company,
Mission, Texas, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Citrus, Cannery Workers and
Food Processors Union No. 24473, AFL, or in any other labor organi-
zation of its employees, by discharging or refusing to employ any of
them because they have become members or have been acting on behalf
of any labor organization, or by discriminating in regard to their
hire or tenure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
'10
The exact dates of the discrimination appear on the record only as to some employees.
Thus, the evidence shows, and we find, that Maria Urrutia was discharged on January 14,
Raul Hernandez on January 15, and Olivia Garcia and Maria Guerra on January 16. As
to the other instances of discrimination , the record only shows that Reynaldo Hernandez
was discharged in December 1949, Maria Villareal in January 1950, and Olivia Rodriguez
in February 1950, and that Olivia Garcia, Olivia Rodriguez, and Frances Guajardo were
refused employment in October 1950 , Maria Urrutia , Porforia Cantu, and Manuella
Rodriguez in November 1950, and Maria Villareal on the last day of November 1950. We
shall not require additional evidence at this time as to the precise dates of some of the
discriminations , as they may appear on the basis of facts disclosed when compliance with
this Order is undertaken. Joy Togs, Inc, 83 NLRB 1024. In the event such information
is not available , the back-pay period shall be computed from the last day of the month in
which the discrimination occurred.
AKIN PRODUCTS COMPANY 1279
labor organizations, to join or assist Citrus, Cannery Workers and
Food Processors Union No. 24473, AFL, or any other labor organi-
zation, 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 of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Raul Hernandez and Reynaldo Hernandez, immediate
and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and offer to Maria Urrutia, Olivia Garcia, Maria Villareal,
Olivia Rodriguez, Frances Guajardo, Porforia Cantu, Maria Guerra,
and Manuella Rodriguez, full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights and privileges, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Make whole each of the afore-mentioned employees in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy." 11
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amount of back pay and the right of rein-
statement under the terms of this Order.
(d) Post at its plant at Mission, Texas, copies of the notice attached
to this Decision and Order and marked "Appendix." 12 Copies of this
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
31 Except for the cases of Raul Hernandez and Olivia Garcia, however , in accordance with
the Board's usual practice , the period from the date of the Intermediate Report to the
date of the Decision and Order herein is to be excluded in computing the amount of back
pay awarded.
1R 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director- for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS HEREBY FIIRTHER ORDERED that the complaint be, and it hereby
is, dismissed, insofar as it alleges that the Respondent discharged
Manuella Alvarado and Elfida Farias in violation of Section 8 (a) (3)
of the Act, or in any manner violated Section 8 (b) (4) thereof.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in CITRUS, CANNERY
WORKERS AND FOOD PROCESSORS UNION No. 24473, AFL, or in any
other labor organization of our employees, by laying off our em-
ployees or refusing to employ them, or by discriminating in any
other manner with regard to their hire or tenure of employment,
or any term or condition of employment, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist CITRUS, CAN-
NERY WORKERS AND FOOD PROCESSORS UNION No. 24473, AFL, or
any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Raul Hernandez and Reynaldo Hernandez im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to any seniority or other
rights and privileges previously enjoyed.
WE WILL offer each of the following named employees full re-
instatement to their former or substantially equivalent positions,
or to the position for which they applied, without prejudice to
any seniority or rights and privileges previously enjoyed.
Maria Urrutia Frances Guajardo
Olivia Garcia Porforia Cantu
Maria Villereal Maria Guerra
Olivia Rodriguez Manuella Rodriguez
AKIN P110DUCTS COMPANY 1281
WE WILL make whole each of the above-named employees for
any loss of pay suffered as a result of the discrimination against
them.
All our employees are free to become or remain members of the
afore-mentioned union, or of any other labor organization, or to re-
frain from such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
AKIN PRODUCTS COMPANY,
Employer.
Dated-------------------- By ------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days and must
not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Citrus, Cannery Workers and Food Processers
Union No. 24473, AFL, herein called the Union, the General Counsel for the
National Labor Relations Board, herein respectively called the General Counsel
and the Board, by the Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued an amended complaint dated May 15, 1951, against Akin Products
Company, Mission, Texas, herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act Copies of the complaint, the charges, and notice of hearing were
duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended prior
to and during the hearing, alleges, in substance, that the Respondent: (1) On
or about the dates set opposite their names discriminatorily discharged nine
employees;' (2) from on or about October 1950 through December 1950, did
discriminate against eight employees,' in that it refused to rehire them because
they filed charges and gave testimony under the Act, and/or because they joined
in union and concerted activities for the purposes of collective bargaining of
other mutual aid or protection; (3) by its officers, agents, employees, and super-
visory employees, including Faustina Salinas, Ray Houston, Miguel Santana,'
I Reynaldo Hernandez-December 1949 ; Raul Hernandez-January 8, 1950; Maria
Espinoza Villareal-January 15, 1950, Olivia Garcia-January 16, 1950; Porforia R.
Cantu-January 16, 1950; Manuella Alvarado-January 16, 1950: Maria Urrutia-Janu-
ary 1950; Maria Guerra-January 1950; Manuella Rodriguez-January 1950
2 Olivia Garcia, Elfida Farias, Maria Urrutia, Maria Guerra, Porforia R Cantu, Olivia
Rodriguez, Maria Villareal, Manuella Rodriguez
a Frequently In the record referred to as Mike Santana
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'ngaged in certain described acts of interference, restraint, and coercion against
its employees;' and (4) by the acts described above the Respondent interfered
with, restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On May 21, 1951, the Respondent filed its answer to the amended complaint
wherein it admitted certain allegations therein but denied the commission of
the alleged unfair labor practices.
Pursuant to due notice a hearing was held in Edinburg, Texas, between July
10 and 18, 1951, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were
represented by counsel and the Union was represented by its general organizer.
All parties participated in the hearing and were afforded an opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. The parties were afforded an opportunity to and did argue
before the undersigned upon the record. The parties were advised that they
might file briefs and/or proposed findings of fact and conclusions of law with
the undersigned. A brief was filed by counsel for the Respondent.
During the hearing, the undersigned reserved rulings on motions by counsel
for respondent to dismiss the complaint for various alleged reasons; to strike
certain testimony ; and also reserved ruling on the motion of the General Counsel
to strike Respondent's Exhibit No. 3.
Respondent's motions are as follows: (a) To dismiss complaint because of no
showing that the Union or its officials were in compliance with the provisions
of Section 9 (f), (g), and (h), of the Act on the date of the issuance of the
complaint on January 26. 1950; (b) to dismiss the complaint as to
all amendments made to the amended complaint at the outset of the
hearing since such amendments were not based upon a proper charge; (c) to
strike all testimony ; the complaint ; and all other evidence in the record as
barred by the provisions of Section 10 (b) of the Act; (d) to strike General
Counsel's Exhibits Nos. 1-A, 1-C, 1-G, and 1-L, consisting of the charge, the
amended charge, the second amended charge, and the third amended charge
from the record for the reason that no showing was made that the
persons whose signatures were attached to such charges had authority to execute
the same on behalf of the Union; (e) that the complaint be dismissed for the
reason that the General Counsel failed to prove that the Union was a labor
organization under the Act ; and (f) the General Counsel's motion to strike
Respondent's Exhibit No. 3.
4 The alleged acts are, in part, as follows : ( a) Salinas ' interrogation of an employee on
or about December 1949 concerning her union affiliation ; ( b) Houston 's interrogation of
an employee in December 1949 concerning the latter 's union affiliation ; ( c) Santana's
statement to an employee on or about January 8 , 1950, to the effect that Respondent's
president , Akin , would have no one around the plant who was a member of the Union ;
(d) that in December 1950, Salinas questioned a number of employees as she passed down
the production line , concerning their union affiliations , and at the same time informed them
that Akin did not want union people in his plant ; ( e) on or about January 16, 1950,
Santana informed a number of employees that because of the Union "they" would have
no more work for the employees, and for the latter to go and ask the Union for work,
(f) on or about January 1950, Salinas stated to an employee , in substance , that she was
trying to find out what employees were union members because the "boss" wanted to know
so he could fire them ; ( g) on or about December 5, 1950, Akin stated to an employee
that he would close the plant and go on a vacation before he would "work an AFL boy
or girl" ; ( h) on or about June 21, 1951 , Salinas told a group of employees , in substance,
that Akin would close the plant if the Union won the election ; and (i) also on or about
June 21, 1951, after a Board-conducted representation election, Salinas interrogated the
employees as to how they had voted in the election.
AKIN PRODUCTS COMPANY 1283
As to motion (a), the undersigned is of the opinion that inasmuch as a question
of compliance under Section 9 (f), (g), and (h) is not litigable in the instant
action and is subject to the administrative determination of the Board only,
that the determination on this issue should be and it is hereby referred to the
Board. In McComb Mfg. Co.,' the Board said :
Nor do we find merit in Respondent's contention that the Trial Examiner
should have sustained its motion to dismiss the complaint on the ground
that the record contained no proof of compliance by the Union or its parent
organization with the filing requirements of Section 9 (f), (g), and (h)
of the Act at the time the complaint was issued. The Act does not, as a
condition of the exercise of its jurisdiction, require pleading and proof by the
Board that the Union has complied with these requirements. N. L. R. B. v.
Greensboro Coca-Cola Co., 180 F. 2d 840 (C. A. 4), March 6, 1950, 25 LRRM
2499; N. L. R. B. v. Red Rock Co., 187 F. 2d 76 (C. A. 5), February 15, 1951,
27 LRRM 2355; N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6),
March 23, 1951, 27 LRRM 2534. However, the Board is administratively
satisfied that both the charging Union and the A. F. of L., its parent
organization, have been in compliance at all times material hereto. See Sun-
beam Corporation, 94 NLRB No. 134; Swift & Company, 94 NLRB No. 137;
cf. Highland Park Manufacturing Company, 71 S. Ct. 489.
Motion (a) to dismiss is denied.
As to motion (b), wherein counsel for the Respondent contended that the said
amendments were not based upon a charge ; that it was taken by surprise ; and
that the amendments should be stricken. Section 102.17 covering amendment to
complaint reads as follows :
Sec 102.17. Amendment.-Any such complaint may be amended upon
such terms as may be deemed just, prior to the hearing by the regional
director issuing the complaint ; at the hearing and until the case has been
transferred to the Board pursuant to section 102.45 upon motion by the
trial examiner designated to conduct the hearing; and after the case has
been transferred to the Board pursuant to Section 102.45, at any time prior
to the issuance of an order based thereon, upon motion, by the Board.
Moreover, it appears that counsel for the Respondent mistakes the purpose
of the charge. As stated by the circuit court in N. L. R. B. v. Kingston Cake
Company, Inc.,6 (C. A. 3) (decided September 5, 1951) :
The vice of the objection, however, is that it misconceives the function of
the charge. The purpose of the charge is not to define the issues to be tried
with the precision which is sought normally in pleadings and law suits. The
purpose of the charge is to give the Board a preliminary basis for determin-
ing whether to proceed in the investigation of the case. For this purpose,
it is of course not essential that it be precise. Indeed, it would hardly be
consistent with the general investigatory nature of the action on the charge
to confine the subsequent complaint to its allegations. Kansas Milling Co.
v. N. L. R. B., 10 Cir. 1950, 185 F. 2d 413; Union Starch & Refining Co. v.
N. L. R. B., 7 Cir. 1951, 186 F. 2d 1008; Consumers Power Co. v. N. L. R. B.,
6 Cir. 1940, 113 F. 2d 38; cf. Joanna Cotton Mills Co. v. N. L. R. B., 4 Cir. 1949,
176 F. 2d 749. Moreover, at the very least this charge puts the Company on
notice that the employee challenges its basis for dismissing him. (Footnote
6 2S NLRB 596.
6 95 LRRM 2571.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
omitted.) We find a legally sufficient relationship between the subject
matter of the charge and the allegations of the complaint.
Motion (b) to strike is hereby denied.
As to motion (c), a motion to strike all testimony, the complaint, and other
evidence as being barred by reason of the fact that the amended complaint charges
violations of Section 8 (a) (1) and (3) of the Act occurring more than 6 months
prior to the issuance of the charge. Respondent contends in effect that the
amended charge sets up a different legal and factual situation from the one
contained in the original charge; hence the amended charge cannot be related
back to the original charge. Respondent further contends that the complaint
based upon the amended charge violates Section 10 (b) of the Act since the acts
complained of occurred more than 6 months prior to the filing of the amended
charge.
The undersigned rejects Respondent's argument, for it is clear that both the
original and amended charges are based upon allegations of violations of Section
8 (a) (1) and (3) ; without any change in the legal theory upon which the Board
proceeded.
As was stated in the American Shuffleboard Co. v. N. L. R. B., (C. A. 3)' (de-
cided August 16, 1951) ;
A charge is not a pleading. The function of a charge under the Act is
merely to provide the spark which starts the machinery of the Act running.
See Kansas Milling Co. v. N., L. R. B., 185 F. 2d 413 (C. A. 10, 1950) ; Labor
Board v. I. & M. Electric Co., 318 U. S. 9, 18 (1943). The Board proceeds to
make an inquiry and it is on the basis of that inquiry that a formal com-
plaint is issued by the Board. 29 U. S. C. A. Sec. 160 (b), 161. Even if we
were concerned with the formal pleading, rather than a mere charge, we
think the amendment would be held to relate back to the original date See
Rule 15 (c), Federal Rules of Civil Procedure.
Motion (c) to strike is hereby denied.
As to motion (C), a motion to dismiss for the reason that General Counsel
failed to prove that the Union, was a labor organization under the Act. This
motion must be dismissed for two reasons, (1) the Board has heretofore taken
jurdisdiction of the parties herein 8 in which case the Board found, contrary to the
contention of the Respondent herein, that the Union therein and herein was
entitled to have the Respondent's employees vote upon the question as to whether
or not the Union should be designated as bargaining representative of the em-
ployees in an appropriate unit; and (2) the Union, by the credited and uncontra-
dicted testimony of its business representative, E. C. DeBaca, gave competent
testimony concerning the Union as a labor organization upon which the under-
signed has based the findings set forth in section II, above. Motion (e) to
dismiss is hereby denied.
As to the motion by the General Counsel to strike Respondent's Exhibit No
on the grounds of immateriality ; lack of proof of foundation ; and
as being in the nature of hearsay. The said exhibit purports to be a list
of all persons applying for work on June 5, 1951, for employment during the
1951 spring season for tomato canning at Respondent's plant. Since-such list
contained none of the names of complainants herein, the Respondent contends that
it is evidence that no complainant made application for work at that time, which
was the time when Respondent was accepting all applicants due to a shortage of
available workers.
° 28 LRRM 2489.
8 91 NLRB 203.
AKIN PRODUCTS COMPANY 1285
The record discloses , however, according to Akin's testimony that Manuella
Alvarada , named in the amended complaint as a complainant ," worked through-
out the entire 1951 tomato season at Respondent 's plant, or until July 16, 1951,
the day before the instant hearing closed Al,varada's name does not appear
upon Respondent ' s Exhibit No. 3, thus indicating such exhibit may be inaccurate.
While the undersigned makes no particular finding based upon such exhibit
it will be retained in the record as disclosing a contention of Respondent
Motion to strike Respondent ' s Exhibit No. 3 is hereby denied.
The undersigned further rules that as to any other motion or motions to
dismiss or to strike , upon which ruling may have been reserved by the under-
signed , and not ruled upon hereinabove , that such motions be , and they are
hereby, denied.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE 13USINESS OF THE RESPONDENT
The Respondent, Akin Products Company, is a Texas corporation with its
principal offices and place of business located at Mission, Texas. It is engaged
in the business of canning vegetables such as tomatoes, beans, beets, spinach,
carrots, black-eyed peas, etc. The Respondent estimates its purchases to be
in excess of $200,000 per year; the major portion of such purchases was for
vegetables, all of which were purchased in the State of Texas. During the same
yearly period the Respondent estimates its sales to have been in 'excess of
$750,000, of which such sales, in excess of 50 percent was sold outside the
State of Texas. The Respondent concedes that it is engaged in commerce
within the meaning of the Act" The undersigned accordingly finds that
Respondent is engaged in commerce as defined by the Act and that it will effectu-
ate the policies thereof by the Board's assumption and exercise of jurisdiction
herein.
11. 111E LABOR ORGANIZATION INVOLVED
Citrus, Cannery Workers and Food Processors Union No. 24473, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Intel ference. restraint, and coercion
1. Chronology of events
The undisputed and credited testimony in the record discloses that the Union
began to organize employees of the Respondent at its Mission, Texas, plant, on
or about February 15, 1948, and continued such organization down to and
including November 1950 "
Under date of January 26, 1950, the Union filed and served a charge alleging
violation of Section S (a) (1) and (3) of the Act; a first amended charge, also,
" Alvarada was not called as a witness by the General Counsel nor did she otherwise
enter an appearance in the hearing.
10 The findings in this section are based upon a stipulation of the parties entered into
at the hearing. The Board has heretofore asserted jurisdiction of Respondent See 91
NLRB 203.
"The witnesses who testified concerning their union membership fixed the dates of
their joining the Union between the dates above set forth.
215233-53-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleging 8 (a) (1) and ( 3) violations of the Act, was filed and served on Re-
spondent on May 1, 1950; on September 18,.1950, complaint was issued alleging
violations referred to in the first amended charge ; a notice of hearing fixing
October 10, 1950, as the date for hearing the complaint, was subsequently
changed and hearing adjourned to October 12, 1950; on October 11, however,
hearing was indefinitely postponed.
In the meantime the Union had filed a petition for certification on June 1,
1950; a hearing was had on said petition on August 22, 1950; and on October
31, 1950, the Board issued its Decision and Direction of Election directing that
an election be held at a time to be fixed by thet Regional Director during the
peak season of employment at Respondent's plant 12
The second amended charge was filed and served on Respondent on November
24, 1950; the third amended charge was filed and served on March 8, 1951, both
of which charges alleged violation of Section 8 (a) (1) and (3) of the Act.
On May 15, 1951, an amended complaint and a second notice of hearing'' was
issued and served on the Respondent and the Union.
2. The activities of Faustina Salinas 14
The Respondent is engaged in the business of canning vegetables, some fruits,
and some fruit juices. Its operations are seasonal and normally, depending
upon weather conditions, growing conditions, and demands for its products,
the Respondent's season opens in or about October or November of each year.
At or shortly before the season is opened, the Respondent causes word to be
passed out that it will open on or about a certain day or date. A number of the
older employees living in different localities pass ,the word along via the "grape-
vine" that the plant will open at such and such a time. On 1 or 2 days before
the expected opening day those wishing to work during the coming season report
to the plant where, normally, Salinas takes their names and social security num-
bers and tells them on what day to report. On the day that the plant gets under
way Salinas, with the assistance of some two or three checkers, assigns the em-
ployees to the line or lines then put in operation and thereafter oversees and
checks the work of those women 16 who perform the different functions. While.
different vegetables and fruits are canned , it appears that the tomato line em-
ploys the most women and that on this operation the workers are paid on a
piece-rate , rather than an hourly, basis.
After the advent of the Union and its attempt at organization commencing
in 1948, Salinas made it a practice to and did discuss the Union with the em-
ployees under her direction. According to the undisputed and credited testi-
mony of Maria Villareal, Faustina Salinas informed the women that it was not
necessary for them to join the Union in order to have work in the plant ; and
later in December 1949, when working on the conveyor in the greens, informed
12 Such election was eventually held on June 21, 1950. Votes in favor of the Union, 48 ,
against the Union, 80.
11 Such notice set the date of hearing as June 21 , 1950. The hearing was subsequently
adjourned to July 10, 1951.
14 One of the main issues in the instant case is the contested status of Faustina Salinas
as a supervisory employee ; the General Counsel contending that the record discloses that
Salinas is a supervisory employee for whose actions the Respondent is responsible ; and
the Respondent contending that Salinas is merely an interpreter who speaks both English
and Spanish rather fluently , and whose duties are that of a checker.
13 It appears that only women are engaged on the vegetable, fruit, and fruit juice
operations.
AKIN PRODUCTS COMPANY 1287
Villareal that Akin did not want workers that were in the Union. In this con-
nection , Villareal testified :
Q. All right. Will you tell us what was said in that conversation?
A. Faustina told me that Harold (Akin) did not want workers that were
in the Union, he did not want them in the plant.
Q. Anything else said?
A. No. I went home because my card was not there ; I went to look for
it ; they told me that Mr. Akin had taken the cards of those he did not want
to work there.
Q. Did Faustina Salinas ever ask you if you were in the Union?
A. Yes sir, she asked me.
Q. What did you tell her?
A. I told her that, yes, I told her that, yes, I was.
Olivia Garcia, who had joined the Union on or about February 5, 1948, and
had worked for Respondent during the seasons 1943 to 1946 inclusive and from
1948 to 1950 inclusive, testified that the products worked on by her were toma-
toes , peeling of tomatoes, packing or canning, green beans, beets, carrots, pota-
toes, spinach, and black-eyed peas. During all the seasons that Garcia worked
it was her practice to go to the plant when the season opened and had never
been sent for.
Garcia testified that in December, 1949, Fiiustin 16 was going around and
asking the employees one by one which were in the Union. She asked Garcia
if she was in the Union and the latter replied "yes." Garcia testified :
Q. (By Mr. Wolf) Mrs. Garcia, about that conversation you had with
Faustina Salinas in December of 1949, will you tell us all of the details?
A. Mr. Akin and Faustina Salinas were talking. Afterwards, Faustina
went to the line where we worked ; then, she went to where I was on the line,
and told me that Mr. Akin said that some men were coming to town about
the Union, and if some day those men of the Union should come to his plant,
and if those men of the Union wanted us to sign some cards, that we should
tell them, tell the men of the Union to go first and talk to him.
Q. When was that conversation?
A. December of 1949-excuse me-it was December of 1948.
Garcia testified that she had a further conversation with Salinas in December
of 1949, which took place on the conveyors on beans. She testified :
Q. What was said in that conversation?
A. She went around asking us one by one who was in the Union, and she
came to where I was ; I told her I was in the Union and then she said that
Mr. Akin did not want workers of the Union in the plant and she said-(an
interruption occurred), Witness concluded as follows:
When she had finished asking us, she went over and talked to Mr. Akin
who was standing to one side ; I turned and saw Mr. Akin standing to one
side ; she went over and talked to him.
Q. What happened then?
A. She told me that Mr. Akin told her that likely as not, she herself, was
in the Union.
11 Salinas will be referred .to by either her Christian or surname, depending upon which
name was used by the witness
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Wolf) What else happened?
A. Then, she said she told Mr. Akin she was not in the Union ; if she
wanted more money to tell him , but she was not in the Union.
Q. When you were laid off in January of 1950, Mrs. Garcia , who told you
that you were laid off?
A. Faustina told me I was laid off ; she told me that she was very sorry
to lay me off; Mr. Akin did not want workers of the Union in his plant."
While as is set forth in more detail below in section I;, Garcia, although
believing that she was discharged in January of 1950, was , contrary to the usual
practice , sent for when the spring opening occurred in April of 1950. Mike
Santana called at Garcia 's home and told her that there was work and that she
should come and she did return to work in April of 1950 and worked until June 5,
at which time the peeling of tomatoes ended'8
When the plant opened in the fall of 1950, Garcia went to the plant, asked
Faustina for work, and was informed that they did not have any work for her ;
she returned on October 16 and October 30 and again contacted Faustina who-
informed her that they were not going to employ any more people . On November
6, 1950 , according to Garcia , she went to the plant . She testified :
I arrived and I asked her if she did not have work for me She said, "No,"
and she hired 12 workers ; she went through the line and picked out different
girls, gave them work, and she did not hire me.
Q. What were you wearing that day?
A. This button-
Q. Is that an A$L button?
A. Yes.
Garcia stated that on November 6 she stayed around a little while longer and?
Faustina hired seven more people and put them to work, after which she re-
turned to Garcia and said, "Look," Faustina then took hold of Garcia's AFL
button ; and again Garcia asked Faustina for work, but to no avail. Faustina,
then told Garcia that the former would not give the latter any work but that
she could talk to Mr. Akin. Garcia went to Akin's office and asked the latter's-
secretary if he was there and she informed her "no," that he was in San,
Antonio. Later, in December of 1950, Garcia went to Akin's office, met him,
and told him that she came looking for work. She testified :
Q. What else was said , if anything?
A. Then he said that he did not have work, that the green beans had not
been any good because it had not rained; the tomatoes were very expensive,
that they were not going to peel tomatoes that year , and what they was
going to do was a little bit of juice ; then he told me-then I told him that
Faustina had not wanted to give work to me, and she had told me to come-
to Mr. Akin, (if) he gave me work, it would be all right. Then Mr. Akin
said , "Olivia, I know my business, as you may know yours , but to the boy-
or girl that has reported to me, I do not give work and the day that they
make me employ a boy or girl of the Union that has reported to me, that
day I close the doors of my plant and go on a vacation."
11 Garcia' s testimony will be further referred to in section III. B. below
18 Garcia had been named as one of those discriminatorily discharged in the charge filed!
by the Union and served upon Respondent on January 26, 1950.
AKIN PRODUCTS COMPANY 1289
Garcia testified that on this occasion she was wearing a union button70
Porforia Cantu testified that she had worked for Respondent starting in ap-
proximately 1948 and worked for 3 years in season thereafter . She joined the
Union in 1949. Prior to her layoff in January 1950, Cantu had a conversation
with Salinas concerning the Union , which conversation took place in 1949, and
Cantu testified she did not know how long before January of 1950 the conversa-
tion took place nor did she give the details of such conversation.
Following the layoff in 1950, Cantu applied for work in November 1950 at
which time she saw Salinas. Cantu testified :
Q. What did Faustina tell you?
A. That there was no work for those of the Union.
When Cantu was asked if she wore a union button when working, she answered
"yes, now in the beans" ; and subsequently fixed the time as working in the beans
.as of November 1950.20
Manuella Rodriguez, a sister of Mrs. Cantu, testified that she joined the Union
the same time that her sister did. Cantu testified that she joined in 1949, but did
not fix the month. Rodriguez worked for Respondent during the seasons of
1948, 1949, and 1950. She worked during the tomato season of January 1950 and
apparently did some work after the close of the tomato season and was laid off in
February 1950, by Salinas. During November 1950 she applied to Salinas for
work and was advised by the latter that "she did not have any work because I
was in the Union." She testified :
Q. If you know, how did Faustina know you were in the Union?
A. She asked me.
Q. When?
A. 1950.
Q. What part of the year?
A. Last year 1950.
Q. Was it before you were seeking employment in November of 1950?
A. Yes.
Q. How long before then?
A. I am not sure when it was, before; I went into the greens and I went
in the green beans.
is In this connection Akin testified :
Q Now, there. is some testimony, I believe, in which Olivia Garcia and Frances
Guajardo in December of 1950 came to your office and personally talked to you about
getting a job. Do you recall their coming to your office and talking to you?
A. Yes, sir.
Q. Tell us, if you will, what was said and by whom at that time.
A. Well, Olivia did the talking ; she asked me for work, and I told her that we
didn't have any work at,that time, and she•asked•me why; I said, "Well, I don't need
any girls," and she was very insistent and wanted to know why I didn't want to put
her to work. I told her we just didn't need any girls at that time, the line was full
and that we just didn't have any work for her."
It will be noted that Akin made no reference to Garcia 's statement that he had , as stated
above, informed Garcia ". . . and the day that they make me employ a boy or girl of the
Union that has reported to me, that day I will close the doors of my plant and go on
vacation "
2° On redirect examination , Cantu testified that she had worked on green beans at the
,Respondent 's plant, and when asked whether it might have taken place in April or May,
following January 1950, she replied that she did not remember.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maria Urrutia first sought employment with Respondent in November of 1949;
she got in touch with Faustina Salinas who agreed that she would put her to work
and thereafter took her social security number and assigned her to conveyor work.
She at no time discussed employment with Akin prior to 'calling' on ' Salinas.
In December 1949, Urrutia has a conversation with Salinas concerning the Union ;
the conversation was held at the conveyor which carried the tomato runs and
while Urrutia was working; on this occasion Salinas asked her if she belonged
to the Union and stated that all of those that belonged to the Union were going
to be fired. Urrutia testified :
Q. Was anything else said?
A. Because Mr. Akin had told Mike Santana " and Mike Santana had
told her (Salinas) to find out who were in the Union.
Urrutia did not tell Salinas anything concerning her union membership at that
time and Salinas continued questioning other employees concerning their union
membership.
Urrutia was laid off in January of 1950 and was advised of such layoff by
Salinas. Urrutia testified :
Q. What did she tell you at that time, if anything?
A. That we were laid off because she knew we belonged to the Union.
Q. Was anyone else present?
A. Others that were laid off that day.
In November of 1950, Urrutia went to the plant, contacted Salinas, and asked
for work but was told by Salinas that she had no other work, although according
to Urrutia, Salinas had put others to work on this occasion. On the occasion of
going to the plant in November of 1950, Urrutia wore her union button and
testified that she joined the Union in 1949 and thought the month was January.
On cross-examination Urrutia admitted that she had not told Salinas, Santana,
Sampson , or Akin that she had joined the Union.
Maria Guerra started to work for the Respondent in November of 1949; and
in that month joined the Union. When she went to the plant looking for work
she got in touch with Salinas, after which Mike Santana "told them" to give her
work because she was a sister of Manuella Rodriguez. Guerra was employed
and put to work that day and did not see or talk with Akin. She testified :
Q. I will ask you, Mrs. Guerra, to state whether or not you had a con-
versation concerning the Union with Faustina Salinas in December 1949?
A. Faustina said ; come and told us, said Mr. Akin sent her to ask us which
ones were in the Union, that she was to choose 16 workers ol< the old ones
and that he did not want workers of the Union.
The above conversation took place while Guerra was at work peeling tomatoes.
She was laid off on January 16, 1950.
Guerra further testified :
Q. Who, if anyone, told you you were laid off?
A. Faustina told me I had no more work ; and I told her not to lay me off
because I had seven children and I needed the work.
Q. Was anything else said?
A. She told me that Mr. Akin was not going to employ those in the Union,
only old workers.
s s * a a s s
"Admittedly a supervisory employee.
AKIN PRODUCTS COMPANY 1291
Q. I ask you, did you talk to Mike Santana?
A. Yes, I asked Mike Santana because he was one of the ones that gave
us work , fires people ; that is why I asked him if he did not have work for
me. Then he said he was not giving work to those who were in the Union,
that we should go and ask for work from the Union because Mr. Akin did
not want those of the Union there.
s s •
Q. (By Mr. Wolf) Mrs. Guerra, on the day you were laid off and you
talked to Mike Santana about the layoff, will you state for the record what
was said at that time?
A. He said he had no work for those in the Union, for us to go and ask
for work from the Union and that the Union could pay us 75 cents an hour.
Q. Did you seek employment at the Akin Products Plant after that, Mrs.
Guerra?
A. No, because it is very far, but I have telephoned to Faustina.
Q. And you asked her for work when you called her?
A. And she said that later she would let me know, she would let me know
through my brother, but she never let me know.
Q. How many times did you call her by telephone?
A. Four times.
Olivia Rodriguez first worked for the Akin family in 1941; :: she worked for
the Respondent in the fall of 1949 including December ; at which time she had
not as yet joined the Union. During December, on an occasion when Rodriguez,
Salinas, and others were eating supper in a railroad car, Salinas asked those
present which ones were members of the Union and stated that she wanted to
know because those that were in the Union were going to lose their "work."
Rodriguez further testified :
Q. Anything else said?
A. That having read the sign 3 there, we didn't need to enter the Union ;
that why should we want to have a union in order to have work.
When Rodriguez went to work in 1949 Faustina Salinas was not present on
that day and Mike Santana was the one who hired Rodriguez.
27 The record indicates that in or about 1941 a partnership composed of Lee Akin and Sons
operated a vegetable canning business in the plant later operated by Akin Products Com-
pany, a corporation, beaded by Harold Akin. The latter was one of the sons in the partner-
ship referred to herein.
53 A number of witnesses referred to the "sign" which was not described in the record
but merely referred to as the "sign" under an apparent assumption that everyone knew
what the sign was. The undersigned is of the opinion that such sign may have been a
posted statement by the Respondent to the effect that employees were free to join or refuse
to join a labor organization. However, no finding can be based upon the undersigned's
assumption in this instance. Akin personally admitted having posted the sign, but did not
describe it. He testified :
Q Did you ever post a sign concerning the Union?
A. I did.
Q. What year was it posted?
A. I can't remember years or dates ; I know I posted the sign, that is all.
Since it is clear from the record that Salinas discussed the Union and the "sign" with
employees before the mid-January terminations, it follows that Akin must have been aware
of the Union's organizational activities at the time be posted the sign, notwithstanding his
positive testimony that he first heard or learned of such activities when he received a copy
of,the charges, which was dated and issued January 26, 1950.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rodriguez had joined the Union on January 26, 1949, and when she was laid
-off or terminated in 1950, Salinas was the one who advised her. Rodriguez
testified :
Q. Who, if anyone, told you you were laid off?
A. Faustina told us that we had no more work because the work was at
an end, that they were going to keep a few working, and those with the
machines would finish the work with the beets.
Q. Was anything else said?
A. Various ones of us asked her why she didn't leave us if some few were
going to be left on, and then Mike (Santana) said for her not to hire any
of us-"that Mike said for us not to blame anybody but the Union." u
Q. (By Mr. Wolf) Mrs. Rodriguez, did you talk to Mike also the day
you were laid off?
A. Just when he turned around and said that to us.
Q. And what was it that he said?
A. That we should not blame anyone ; if we wanted to have 75 cents an
hour, that we were not going to earn even the 40 cents an hour.
Q. Did he say anything about the Union?
A. Just that we should not blame anyone except the Union.
Rodriguez worked on the tomato packing during the January pack of 1950;
and after the tomato pack closed down worked about a week on beets and was
then laid off.
During October 1950, she went to the plant in an attempt to get work and saw
Salinas, who informed her that she, Salinas, was going to employ just 10 people
"and that we should continue to come around so if there was work, she could
give us work." Thereafter and in November 1950, Rodriguez, in company with
several others including Olivia Garcia, went to the plant seeking work and con-
tacted Salinas. Rodriguez testified:
Q. What was said at that time?
A. We asked her if she would hire us; and she said for us to wait a
little bit, and then she hired seven and we asked why she did not give us
work, and she saw the button, and said the person has the same name of
the button of A. F. L., and said, "Look, you have my name on."
Salinas then advised those seeking work on this occasion to call on Akin.
Olivia Garcia first went to the office and asked for Akin and was informed that
he was not there, that he was in San Antonio (Texas) ; shortly thereafter Rod-
riguez went to the oflice, made the same inquiry, and also received information to
the effect that Akin was in San Antonio.
The events above described occurred on an occasion in November when Rodri-
guez, Garcia, and Manuella Rodriguez jointly sought employment. On this
occasion each wore AFL union buttons 25
Frances Guajardo worked for Respondent in 1948 for about 2 weeks. In
1950, she went to Respondent's plant seeking employment, in or about October,
and saw Faustina Salinas who told her that she had "no place for her."
In or about December 5, 1950, Guajardo returned to the company plant in
company with Olivia Garcia seeking work. It was on this occasion that Salinas
a+During this answer the interpreter interrupted and asked permission to ask the
question over which he did and which explains the break in the answer.
25 While Rodriguez testified that she wore a button first in 1949 on redirect examination,
she qualified and corrected her testimony to the effect that it was in November 1950 that
she wore the union button at the plant and that this was the only time.
AKIN PRODUCTS COMPANY 1293
referred Guajardo and Garcia to Akin. In this connection Guajardo testified:
Q. (By Mr. Wolf) And did you ever return to the Akin Products Plant?
A. I didn't for a long time ; I did return one time, Olivia ( Garcia) and L
to ask for work from Mr. Akin.
Q. All right . What happened then?
A. Well, we asked him for work ; and he said he didn't have any work
that day ; he said business was not good enough ; tomatoes were too high-
priced. He was going to can tomatoes, too, that year, only a little. He
said, "I know my business. Any girl or boy that reports to me, I will not give
them work . If some day they ( Union ) make me give boy or girl employment
that -reported to me, I will close the plant 26
While Guajardo refers to a visit with Salinas on one occasion with reference
to work and with Akin on another occasion, from the testimony on cross-exam-
ination, it appears that the visit made to Salinas was in October 1950 and the
visit to Akin was on December 6, 1950; and according to Guajardo it was the
first and only time she had ever been in Akin 's office.
Maria (Socorro) Guerra-' was employed by Respondent in June of 1951.
On June 20 , 1951, the day before the union election was held, Guerra had a
conversation with Faustina Salinas concerning the Union , which conversation
took place in the plant during working hours and some four or five women
employees were present . Guerra testified :
Q. All right . Will you tell us what was said in the conversation?
A. Faustina asked me for whom I was going to vote; I told her for Mr.
Akin and later she said that was all right, to be sure to put the cross on
the "no," and she said that if the Union won, Mr. Akin would close the
plant , and that is what we did not want, to earn less or keep on working
because they were saying there that if Mr. Akin won, the prices would go
down ; and she told me that that was not the truth, and I told her that if
now he not won the election , he brought down prices on the buckets of
tomatoes , what would he do now. We were getting 25 cents and it had gone
down to 18 cents.
Q. Was anything else said?
A. She said that if I wanted to continue working to vote for Mr. Akin.
Guerra testified that after the election she returned to the plant and was
working peeling tomatoes , but because of a minor accident , work was stopped
temporarily . Guerra further testified :
Q. Did you have any other conversation with Faustina Salinas about the
Union after that?
A. No, no more until after the election.
Q. Were did the conversation take place?
A. We were peeling tomatoes , there where we were peeling tomatoes.
Q. That was after the election?
A. Yes, I was peeling tomatoes.
Q. Was it the day after election?
A. Yes, after the midday, when we went back to work.
Q. What was said at that time?
A. She said that Mr. Akin was going to know who voted for him and
who voted for the Union.
"'in this connection , see testimony of Olivia Garcia hereinabove and her version of Akin's
statement at that time.
s'+ Not to be confused with the Maria Guerra referred to as a claimant in the complaint.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Anything else said?
A. And later she knew that I had voted for the Union because she had
seen my ballot ; she told a number of the girls, not me.
Guerra testified that the time she went to work in 1951 she was hired by
Faustina ; she did not contact Akin with reference to employment ; nor had
she ever seen him, and that her work was directed by Faustina 2'
Guerra further testified that Faustina is the one who directs the checkers, "she
is the one that orders them there where we are working." Guerra testified
that she has seen Akin back in the plant ; but not very often, "sometimes he
goes to see how the work is going" ; she testified :
That he (Akin) never corrects anybody that has not been doing their work
properly? That I have-no, because Faustina is the one that tells us that
and the other one is Mr (Nanson) Sampson.
* s a ' e r o r
Q. Does he direct your work back there? (Sampson)
A. No, our work, no, but sometimes he gets peelings out of the tomatoes
or on the greens, then comes back and tells us not to put green ones or
peelings in them.
s t c • * s w
Q. If you know, Mrs. Guerra, does Henry Sampson direct the men?
A. I don't know, but I think so ; he and Mike Santana.
Q. Other than picking up green peelings as you have stated-
A. Peel of tomato.
Q. Peelings and green tomatoes, as you have stated, do any-does he
give any other instructions to the women?
A. Us the women?
Q. Yes.
A. No.
Ivarra Munoz' was employed in Respondent's plant during June 1951. The
day before the election, June 20, 1951, she learned that she had been selected as
an observer for the Union. Juanita Lopez, union secretary, told Munoz to go to
the Respondent's office, which she did and met with the group representing the
Union and the Respondent. She was asked at the meeting in Respondent's
office if she could be one of the observers on the next day's election and she
replied in the affirmative. Before lunch Munoz, at about 12: 30 p. in., had a con-
versation with Faustina Salinas about the Union. Faustina asked her if she
belonged to the Union and she replied, "no"; Munoz had been outside the plant
before this conversation took place and Faustina had sent one of the girls for
her and it was then that she asked her if she belonged to the Union and Munoz
replied in the negative. Munoz testified :
Q. Was anything else said?
A. Some of the girls said, "well, why did the Union call you?" (to office)
I said, "one of my friends said I could be one of the observers to help in the
election ; that is how come I went up to the office."
28 At the completion of Guerra 's testimony on direct, counsel for Respondent moved that
all testimony be stricken . The motion was denied with the proviso that it might be re-
newed . It was renewed at the close of the hearing and ruling thereon reserved. Said
motion is hereby denied.
21 Sometimes in the record referred to as "Virginia" Munoz.
AKIN PRODUCTS COMPANY 1295
Q. Was anything else said at that time?
A. No, they said , "do you belong to the Union? " I said "no." After that,
about 2: 00 o'clock , she (Faustina ) insisted that I belonged to the Union. I
said , "no, I don't belong." She said , "how come they call you?" I told them
that one of my friends told them that I could be one of the observers, and I
could help them at one of the tables.
Munoz testified that she did not talk to Faustina any more on that day, not
until the next or election day.
Q. Did you talk to her before the election?
A. Yes, sir, I talked to her about 7: 30. A group of girls were talking
about the election. She asked me if I was going to work for the Union. She
said , "do you belong to the Union ?" I said, "no, how many times have I said
that I do not belong to the Union ?" That one of my friends told them that
I could help them and that was how come they called me." She said, "well,
maybe you belong to the Union ." I told her , "no," and then she said that
if the Union came into the plant it was going to be closed . She asked me
how I was going to vote and I told her I did not know how I was going to
vote yet. She said, "well , if you are going to vote for the Union, if you
vote against Mr. Akin , Mr. Akin is going to shut the plant."
Q. Anything else said at that time?
A. Then she said , "well, you are going to be one of the observers of the
Union," and I said, "yes ," and she said , "are you going to belong to the
Union?" And I said, "since you have bothered me, I am going to say, yes,"
that is what I told her. I would quit the plant after that.
Following the close of the election , about 3 p. in., Munoz returned to work.
She testified :
Q. Did you work from 3:00 p. in. on?
A_ Yes, Sir, when I was climbing the steps, Faustina asked me if I win;
I said I hadn't win anything yet.
Q. Was anything else said?
A. She said, "well, Virginia, you don't belong to the Union." I said,
"yes, I belong to the Union because you bother me so much." I quit the plant
after that.
Munoz further testified that she was not a steady worker at the plant and on
the occasions when she did work at the plant she always applied for work after
the work had started. "I go there after two or three days ; I ask Faustina
for a job and if she had a job, she put me in."
Juanita Lopez was employed by Respondent during June of 1951. During the
election, on June 21, 1951, she acted as a union observer. She testified that while
she had no personal conversation with Faustina Salinas about the election on
the day before the election, she did see Faustina and heard her going about among
the employees and asking them for whom they were-going to vote. She testified:
Q. Did you hear her words?
A. Yes.
Q. What did you hear her say?
A. She was telling them to vote "no," which was for Mr. Akin, and to
vote "yes," if it was a vote for the Union ; that those that voted for the Union
had no more work.
Lopez attended the meeting in Akin's office on the day before the election, at
which time representatives of the Union and Respondent were present. She
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew that she and "Virginia" were to be observers for the Union but was not
advised at that time who would be the observers for the Respondent Company.
In connection with Faustina Salina's status as an employee, Akin, in part,
testified :
Q. How do you account for Faustina's being paid 55 cents on hour? 30'
A. Well, she was a floor lady and coordinator along with two other girls in
the plant, but we depended on Faustina more than the other girls because
she understands English and writes English ; naturally she would be one
of our key personnel to carry out our directives in Spanish to the workers.
Q. Well, did that make her service more valuable than the ordinary
employee?
A. Yes, sir.
Q. Has her salary since that time been increased?
A. It was increased on January 26th-or 25th-when the 75-cent an hour
minimum wage law came into effect.
Q. What is she now receiving?
A. 75 cents an hour.
Q. What is the maximum now paid in your plant to your hourly paid
workers?
A. It is 80 cents 91
The record discloses that during January 1950, at or about the close of the
tomato season, a number of women employees were laid off, among whom are
some of those named as complainants in the instant case. Some employees were
retained and assigned to finish canning operations on other items than tomatoes.
With reference as to how and who decided which of the employees were to be
laid off, Akin testified:
Q. (By Mr. Wolf) Are you the person that decided which people were to
be laid off and which individuals would be retained?
A. Well, there were three of us that had the say on it.
Q. Who were the three?
A. Mr. Sampson, myself, and under our direction, Faustina Salinas made
the cards for them.
Q. Now, let me ask you, Mr. Akin, if you were personally acquainted with
all the girls that were laid off and all of the ones retained in January of
1950?
A. Well, I don't know so much about that ; I would have to look at the
records.
Q. Of your own recollection?
A. I don't know.
Q. Of your own knowledge do you know the names of the girls?
A. I don't know the names ; I probably knew the faces.
Q. Of the the people you mentioned, yourself, Mr. Sampson and Miss
Salinas, which of those three persons knew most about the working capacity
of the girls and what they were doing prior to the layoff?
A. I did.
Q. You did?
A. I did.
0 Prior to January 25, 1950 , the minimum hourly wage under Federal law was 40 cents
per hour ; the amendment to such law raising the minimum rate to 75 cents per hour took
effect on January 25, 1950.
31 The record shows that while the workers on the vegetable canning lines punch the
time clock , Salinas and the checkers do not punch the time clock.
AKIN PRODUCTS COMPANY
Q. Did you direct the girls in the operations?
A. I did.
Q. Day after day?
A. Periodically.'
Akin further testified :
1297
Q. She directs them in their work?
A. Under my direction. The thing is, there is no direction to it; insofar
as the direction is concerned, it is routine. There is a certain job to do ;
.all the girls are fitted for the purpose. Anybody can peel a tomato, anybody
can grade beans, anybody can cut the tops off beets, almost anyone with
good eyesight can see the defects in the merchandise of the raw materials.
Some of them that don't do it.
Q. Well, when you say that Faustina Salinas directs them under your
instructions, what do you mean by that?
A Well, I tell her how many hands I want, what I think we have coming
in, more or less trying to organize the situation. We try to eliminate as much
confusion as possible; passing on instructions, I fully realize that I cannot
be there all of the time; I have to have someone to follow my orders.
[Emphasis supplied.]
a e * • c • s
Q. Well, you try to get things organized with her, and then she places the
girls to try and carry out your instructions?
A. There is no placing of the girls-I mean to say, in the placing of the
girls, you don't have one girl that takes this job, one girl that takes that job;
it is all one job; it is in the grading, inspection and peeling of different
commodities. On the grading of tomatoes, she hasn't anything to do with
that ; that is governed by the man on the back platform, Mr. Sampson.
Principally, he is our quality control man; also if there is a lot of tomatoes
on the belt in front of the girls, a girl might get pulled off the beets and put
on that job. Mr. Sampson does that ; and if I happen to catch it before he
does, I did.
Q. How about Faustina Salinas? She doesn't have anything to do with
that?
A. That is right.
Q. Who do the women workers apply to for time off, if you know?
A. I don't know if they apply to anybody. When they get ready to
take off, they just take off ; don't ask anybody, never have.
Q. Would you state from your own knowledge that they don't request time
off from Faustina Salinas?
A. Absolutely.3a
32 The record discloses that in their top seasons the Respondent's peak of employees
amounts to as many as 300 employees ; and at times they worked 2 and sometimes 3 shifts
on the different canning lines. According to Akin, he made "many" periodical visits to the
plant containing the canning operations, but spent more time outside the plant in con-
nection with the Inspection of and overseeing the raw material and its preparation prior
to its reaching the canning floor. Akin contended in effect that Salinas and the so-called
checkers performed no supervisory duties whatsoever ; that such duties as they did per-
form were merely routine ; and that the supervision necessary was furnished by himself
and Sampson These contentions are discussed further below
sa Akin testified that he discharged one of the claimants herein for absenteeism, and in
that connection testified :
Q. (By Mr. Toothaker) What Is the policy of your plant about letting people take
time off for absenteeism in the plant?
A. We have no definite rule governing absenteeism at the plant. If It is necessary
to take off time, they deem it their privilege to take off time if the situation warrants
it If there is sickness in the family, I never question it.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With reference to those employees who were retained after the January 1950
layoffs, Akin testified :
Q. All right, sir. In substance you stated that you wanted to be con-
siderate of Faustina Salinas because she was an old employee ; you have
further stressed that she worked at your plant 3 or 4 years. I ask you
if you don't know that at the time of your layoff you laid off other employees
that worked at the Mission Plant longer than Faustina Salinas?
A. Well, when we laid off these employees, we laid off the whole tomato
crew. I can 't be a granddaddy to everybody, and as some hands there were
two or three, if I remember correctly, of Faustina Salinas' sister and near
relations working on the beet line and we went and put them back to work ;
we put those members back to work.
Q. But you knew at the time of the layoff in January, you were laying
off employees that had worked more years at your Mission Plant than
Faustina Salinas had?
A. Well, of course, I can't give my employees work all the time ; I just
more or less have to play favorite(s).
Q. Now, I have asked you, of your personal knowledge, if you didn't
lay off employees who had more service than Faustina Salinas had?
A. Well, it didn't enter my mind; I just didn't think about it.
Q. Well, you have thought of it now.
A. Well, I suppose I had ; I suppose I had.
Q. I asked you if You didn't take Faustina Salinas recommendation as to
which should be retained and which should be discharged.
A. No.
Q. You didn't?
A. No.
Q. Well, in regard to this group of Faustina Salinas, did you take her
recommendation as to that group?
A. She never did say anything to me about it.
Q. Exactly what did she say to you as to who should be retained and who
should be let go?
A. I have Faustina Salinas to gave all the old employees working for me,,
insofar as possible , preference as to the jobs when they came about.
Q. You told Faustina Salinas to give the old employees preference?
A. Insofar as possible.
Q. She is the one that picks out the old ones , then, that should be kept
insofar as possible?
A. Well, yes, sir, and, no. There are several girls there I picked myself.
Q. And Faustina Salinas picked the others?
A. Not particularly . Mr. Sampson , he knows the employees also.'`
Q. Did Faustina Salinas pick any of them?
A. That I can't answer truthfully; I just don't know for sure.
Q. Well, you don't know if she followed your instructions then, as to.
giving your old girls preference on who was to remain?
A. All I know is that the line started; that the girls were there ; most of
the girls were-I don't pay too much attention to it after the line is started.
I suppose she is not in the habit of not carrying out my orders. I don't
see why she should in this case.
34 Sampson, with reference to talking to the women employees, testified, "I talk to the-
ones that I can talk to ; they all speak Spanish ; I `have to have an interpreter when I talk
to them." It is undisputed that Faustina Salinas was the interpreter used by Respondent.
AKIN PRODUCTS COMPANY 1299
Q. You mean you don't expect your employees to carry out your orders?
A. No, I didn't say that. I say that she isn't in the habit of not carrying
them out. [Emphasis supplied.]
Akin testified that other than himself, as plant owner, and Sampson, as.
superintendent, he had no employees who were classified as supervisors."
Under date of June 2, 1950, the Regional Director requested Respondent to
furnish an alphabetical list of all production and maintenance employees at its
Mission plant, excluding office, clerical, and professional employees, guards, watch-
men, and supervisory employees as defined in the Act. Such list would show-
the job classification or position title for each employee as of May 31, 1950.
Such list was furnished under date of June 7, 1950. Salinas and Santana
were listed as follows :
Faustina Salinas__________________________________________ Forewoman.
Mike Santana__________________________________________ Plant Foreman.
The list contained 180 names , 140 of whom were women and 40 ( excluding
Sampson and Santana ) were men.
In connection with the manner in which employees are hired at the plant,
Akin testified:
Q. All right, Sir. Who hired all these employees?
A. Mr. Sampson.
Q. He is the man that hires them all?
A. He is the plant supertindent ; he and myself.
Q. If you know, does he personnally interview all the employees that
are hired?
A. No, he does not. When I hire, I don't personally interview them all.
Q. How do you hire?
A. When we need workers. we go get them or they come to us."
Q. Do I understand that you don't see them personally when you hire
then.
A. That is true.
Q. Who does see them?
A. Well, several people make out the time cards. It all depends.
Q. Who are the people?
A. Mrs. Holmes,34 myself, Mr. Sampson and, under our direction, Faus-
tina Salinas.
Q. And under your direction, do you mean that you tell_Faustina Salinas
that the people are needed and she hires them?
A. At the beginning of the season, for example, we were running green
beans, and we knew at that time we were going to get in some raw materials,
85 He subsequently admitted that Mike Santana and Ray Houston were supervisory
employees.
86 As stated elsewhere hereinabove, Respondent's practice before the season opens is to
pass out word "via the grapevine," and the word that the plant is going to open thus reaches
those people who have been working at the plant through the years. The record further
indicates that personal calls on the employees to invite them to go to work are seldom
made. A number of exceptions are mentioned hereafter.
87 Jean Holmes , called as a witness for Respondent, testified that she is bookkeeper and
payroll clerk, and has been such since December 1948. Her duties consists of keeping the
books, records, making up the payroll, distributing the checks, and paying for the raw
materials. She also keeps a record of the number of employees working and their names,
in that she adds up the hours on the time cards distributed to the employees. All employees
are paid by check and Holmes delivers the checks to the women employees, whereas Samp-
son delivers the checks to the men employees Holmes gave no testimony to the effect that
she had any part in the employment of employees.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomatoes, and we, by word of mouth and grapevine and so forth, had this
word translated to our employees-our future employees, rather,'° that we
were going to start working on the next day, and well, we wanted them
to come, so we could get the crew together for the next day so as to start
the operation when the raw materials were there. We had this crew, and
put their names so we would know how many we could depend on coming,
what kind of a crew we would have. We took the names ; and there were
approximately 75 to 80 girls-I don't remember exactly ; that is approxi-
mately-and then the next day we told them to come back, the day we
started operationO
Q. Who took the names?
A. Faustina Salinas.
Q. Who told them to come back?
A. I did.
Q. Following that, as the season progressed and more people were hired,
who hired those people?_
A. I would tell either Henry (Sampson) or Mrs. Holmes or Faustina
Salinas. They would know that we needed so many more girls. If they
showed up, we would put them to work. Sometimes they didn't show up.
Q. And they in turn would hire that many more girls?
A. That is true, and I have hired them myself.40 [Emphasis supplied.]
Akin further testified :
Q. All right, Sir. How about Miguel Santana? Does he hire anybody?
A. Yes, Sir, he does.
Q. Does he discharge anyone?
A. On my direction.
Q. You mean he carries out your instructions in informing them that
they are discharged?
A. That is right.
Q. Does he fire, make recommendation to you as to what people are to be
discharged?
A. Yes, Sir.
Q. And when he makes such recommendation to you what is your
practice?
A. My practice is to talk the situation over and investigate with Mr.
Sampson, the plant superintendent, to see if his charge is right or wrong.
Q. Do you always follow his recommendations?
A. No, Sir, I don't.
Q. At times you do as he recommends'?
A. At times, yes, sir:"
89 Akin testified to the effect that except for a very few year-round employees, all others
were considered "temporary employees."
80 The above answer to the last question above is characteristic of Akin's answers
generally.
10 Of all of the women called as witnesses by the General Counsel in the instant matter,
all testified that they were employed by Faustina Salinas One testified that she had been
hired by Salinas and on one occasion had been hired by Akin.
41 Akin testified to the effect that he and his superintendent, Sampson, are the only ones
in the plant with authority to hire and fire. As is set forth in more detail below, the under-
signed does not credit this testimony. Other than his testimony to that effect, there is no
credible evidence in the record to the effect that Sampson ever hires any of the women
employees.
AKIN PRODUCTS COMPANY 1301
Conclusions as to the Employment Status of Faustina Salinas
While the record is replete with credible and undisputed testimony disclosingi
and tending to disclose, that Salinas was and is a supervisory employee as is
defined by the Act," Salinas was not called as a witness nor was any showing
made to the effect that ,she'was not available.
Maria Guerra credibly testified without dispute and the undersigned finds
that she started to work for the Respondent in November of 1949. At the time
she applied for work she gave her application to Faustina Salinas. She made
no contact with and did not see Akin before her employment. Unlike most other
employees who testified, she had the recommendation of Plant Foreman Mike
Santana ; Salinas put her to work and she continued working until on or about
January 16, 1950, at which time Salinas informed her that she was laid off.
Guerra testified :
Q. Who, if anyone, told you you were laid off?
A. Faustina told me I had no more work ; then I told her not to lay me
off because I had seven children and I needed the work.
Q. Was anything else said?
A. Then she told me that Mr. Akin was not going to employ those that
were in the Union, only old workers."
Guerra's alleged discriminatory discharge is discussed in section III, C, below.
Maria TJrrutia credibly testified and the undersigned finds that she was first
employed by Respondent in November of 1949; that she got employment from
Salinas, who agreed to give her work ; and thereafter, that same day, put her
to work on a conveyor in the tomato line.
Urrutia had not been to the plant prior to the day she made application and
was put to work, as above stated, did not see or talk to Akin with reference to
her employment.
On or about mid-January 1950 she was laid off by Salinas. In this connection
Urrutia testified :
Q. What did she tell you at that time, if anything?
A. That "we" were laid off because she knew we belonged to the Union.
Q. Was anyone else present?
A. Others that were laid off that same day.
During the hearing it developed that Urrutia was 17 years of age, and that her
eighteenth birthday would occur on August 5, 1951. Thus at the time of her em-
ployment by Salinas she was 16 years and about 3 months of age, and it is
apparent that she was inexperienced at the time of her employment. The fact
that Salinas, without consultation with Akin, immediately took her social security
number and put her to work is indicative of the fact that Salinas exercised
Independent judgment in the hiring and selection of employees.
Urrutia's alleged discriminatory discharge is discussed in section III, C, below.
Maria Villareal, a witness for the General Counsel, testified that she has
worked for Respondent during 1941 to 1944 inclusive, but she did not work for
l#,Seetion 2 (11) "The term 'supervisor ' means 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
4e of independent judgment."
" While' Guerra joined the Union in November of 1949, she testified that she did not tell
either Akin , Santana , or Salinas that she had in fact joined the Union.
215233-53-83
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent again until the season of 1948 and continued during the seasons
as an employee until January 1950, at which time she was laid off by Salinas.
In the spring of 1950, on or about April 12, Villareal went to the plant to look
for work, and as was the case in 1949, Salinas hired her and put her to work and
she continued working until June 5 when the "plant closed." Villareal testified
that when she went to the plant on the occasions mentioned looking for work,
she saw neither Akin nor Superintendent Sampson in connection therewith and
talked to only Salinas. The record discloses that she was denied work in the
fall of 1950, which event is discussed in connection with her alleged discrimi-
natory discharge in section III, 0, below.
Olivia Garcia, whose discriminatory discharge is discussed below in section
III, B,' credibly testified and 'the undersigned finds that she worked for the
Respondent from in or about December 1942 and thereafter until 1950, with
the exclusion of the year 1947. During the seasons between 1948 and 1950 she
made application to Salinas only when she wanted work with the Respondent
and was put to work by Salinas, who, according to Garcia, "directed the work ;
directed the work of all of us, told us." As is set forth in detail below, following
her discharge or layoff in January of 1950, Garcia went to work during the spring
season commencing in April 1950, at which time Santana came to her home and
requested her to go to work. This was the first occasion during the years that
Garcia worked for the Respondent that she had been especially requested to
report for work.
Olivia Rodriguez was employed at Respondent's plant in December of 1949.
At the time she reported for and applied for work Salinas was not present on that
day and she saw Mike Santana who hired "us." She was laid off in mid-January
at or about the time the tomato line closed down by Salinas. In this connection
Rodriguez testified :
Q. Who, if anyone, told you you were laid off?
A. Faustina told us that we had no.more work,because the work, was at
an end , that they were going to keep a few working, and those few with the
machines would finish the work with the beets.
Q. Was anything else said?
A. Various ones of us asked her why she didn't leave us if some few were
going to be left on, and then Mike (Santana) said for her not to hire any of
us-[answer was then amended to read at the last] "that Mike said for us not
to blame anybody but the Union."
Rodriguez was among those employees who made application for work dur-
ing the fall season of 1950 without success. Her experience with Respondent
will be discussed further in section III, C, below.
Porforia Cantu had been employed by Respondent, starting approximately in
1948 and worked some 3 years thereafter for Respondent. In January of 1950
she was working for Respondent and was among those laid off in mid-January
of 1950 by Salinas. Cantu testified that she joined the Union in 1949 but did
not fix the month of year.
Manuella Rodriguez had worked for the Respondent some 3 years, 1948 through
1950 inclusive. She worked in the tomato season of January 1950 in which
connection she testified :
Q. Did you work on tomatoes in January?
A. Yes.
Q. Would that be the time, then, that you were laid off?
A. No, I was working.
AKIN PRODUCTS COMPANY 1303
It would appear that Rodriguez was among the number of employees that
were retained to finish the work on the beet line Rodriguez is a sister of Porforia
Cantu and testified that she joined the Union at the same time her sister did
in 1949 . Her connection with the Respondent and 'efforts to procure further
employment will be discussed in section III, C, below.
Maria S. Guerra, a witness called by the General Counsel and not a claimant
herein, testified that she had first worked for the Respondent in 1947 for a few
weeks and has not worked every season since that time. Her job at the time
of the hearing was peeling tomatoes. She was asked who was the checker at
her table and replied in substance that there were four checkers and on some
days one and on other days another checker would act. She testified :
Q. Did Faustina ever check at your table?
A. She almost never checked ; sometimes when someone is absent, they
check or she puts someone on when one of the checkers is absent.
Guerra further testified that on occasion she has seen Akin "back there in the
plant, but not very often ." She testified :
Q. Does he ever correct anybody that has not been doing their work
properly?
A. That I have-No, because Faustina is the one that tells us that and
the other one is Mr. Nanson ( Sampson).
As has been set out in detail hereinabove it is apparent that the charges of
discrimination filed by the Union herein grew out of the fact that at the time
of the mid-January layoffs or terminations of January 1950 , certain employees
were retained and others were terminated . It is clear from the testimony of
Akin, set out hereinabove , although evasive as to the most part , that Akin had
delegated to Faustina Salinas the authority and the duty to select those who
were to be retained and those who were to be terminated . While Akin testified
that he did not take Faustina Salinas' recommendations as to which employees
should be retained and which be discharged , he also testified :
I have Faustina Salinas to give all the old employees working for me,
insofar as possible , preference as to the jobs when they came about.
It is self-evident that in order for Salinas to give the old employees preference
as to jobs when they came about, such action required the exercise of independent
judgment, and is in itself an act of supervision.
It is further clear from the record that in the seasons requiring employment
of "peak" loads it would be impossible for Akin, or any other person , to per-
sonally supervise all employees . It is clear from the above and the record,
and the, undersigned finds, that Akin does not do so but on the contrary dele-
gates the major supervision over the women employees to Faustina Salinas, and
the undersigned hereby finds Salinas to be a supervisor as is defined by the Act.
Having found that Faustina Salinas is a supervisor for the Respondent, it
necessarily follows that the Respondent is responsible for her acts of inter-
ference , restraint, and coercion . Akin disclaims knowledge of any union activ-
ity among his employees prior to the service of the charge of the Union served
upon him on or about January 26, 1950, and after the terminations of mid-
January 1950 . Assuming, arguendo , that Akin had received no information what-
soever concerning the Union 's attempt to organize his employees , it is clear from
the record that Supervisor Salinas, described in Respondent 's list of employees
under date of May 31, 19 51, as a "Floorwoman," Plant Foreman Santana, and
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Foreman Houston had knowledge that the Union was attempting to
organize Respondent's employees.
As is found and set forth in some detail above, Salinas, following the advent
of the union organization in 1948, questioned many employees concerning their
union activity and membership. In a discussion with Maria Villareal, Salinas,
in December 1949, informed her that Akin did not want workers in the plant
who were in the Union ; asked Villareal if she was a member of the Union and
the latter admitted that she was.
Also in December of 1949, Salinas talked to Olivia Garcia, a member of the
Union from and after February 5, 1948, and informed Garcia that Akin had
told Salinas that there were some men coming to town about the Union, and
if someday the men should come to the plant to request the employees to sign
cards, that the latter tell the men of the Union to talk with Akin first. And
during December 1948, Salinas questioned the employees in the group in which
Garcia was working and asked them one by one who were in the Union ; and
when Garcia admitted that she was in the Union, Salinas -stated that Akin' did
not want workers of the Union in the plant, after which Salinas went and talked
to Akin who was standing nearby.
Porforia Cantu, who had joined the Union in 1949, had been employed during
the 1949 and January 1950 tomato season , at which time she was laid off, and
subsequently in November of 1950 went to the plant and applied for work from
Salinas who informed her "That there was no work for those in the Union."
Manuella Rodriguez, a sister of Mrs. Cantu, who joined the Union the same
time Cantu did, also made application in November of 1950, following her termi-
nation in January of 1950, of Salinas for work and was advised by the latter
that "she did not have any work because I was in the Union."
Maria Urrutia, who had been employed in November of 1949 by Salinas and
subsequently terminated in January of 1950, but did not tell Salinas of her union
membership during the latter's questioning of employees in January of 1950.
In November of 1950 Urrutia went to the plant at which time she wore a union
button, and asked Salinas for work. The latter informed her that she had no
work for Urrutia. However, on this occasion, Salinas put other applicants
to work.
Maria Guerra started to work in November of 1949 and in that month joined
the Union. She went to the plant and asked Salinas for work and -with the
recommendation of Mike Santana was put to work. During September of 1949,
in connection with the Union, Salinas told her that "Mr. Akin sent her to ask
us which ones were in the Union, that she was to choose 16 workers of the old
ones and that she did not want workers of the Union."
On the day of Guerra's termination in January 1950 she sought the aid of
Santana in retaining her job. She testified:
Q. I ask you, did you talk to Mike Santana?
A. Yes, I asked Mike Santana because he was one of the ones that gave
us work, fires people; that is why I asked him if he did not have work for
me. Then he said he was not giving work to those who were in the Union,
that we should go and ask for work from the Union because Mr. Akin did
not want those of the Union there. Santana further said he had no work for
those in the Union, for us to go and ask for work from the Union and the
Union could pay us 75 cents an hour.
Olivia Rodriguez, during December 1949, on an occasion when she, Salinas,
and others were eating supper in a railroad car and Salinas asked those present
AKIN PRODUCTS COMPANY 1305
which ones were members of the Union and stated that she wanted to know
because those that were in the Union were going to lose their work.
Salinas also referred to "the sign," heretofore referred to and commented on.
Rodriguez was terminated in mid-January 1950. Salinas told the group that
there was no more work because the work was at an end, but that a few would
be kept to work on beets, on which occasion Santana was present and stated
that the terminated employees could not blame anybody but the Union for their
termination.
Maria S. Guerra was employed by Respondent in June of 1951. On June 20,
1951, the day before the union election was held, Guerra had a conversation with
Salinas concerning the Union, which took place during working hours with some
four or five women employees present. As has been set out in detail hereinabove,
Salinas asked Guerra for whom she was going to vote, and when the latter replied
that she was going to vote for Mr. Akin, Salinas said to be sure and put a cross
on the "No," for if the Union won Akin would close the plant.
Guerra had further conversations after the election of June 21 in which
Salinas stated that Akin was going to know who voted for him and who voted
for the Union and that she knew how Guerra voted because she had seen her
ballot.
Ivarra Munoz, as is detailed hereinabove, was selected as the union observer
and attended a meeting in Akin's office on June 20 at which time she agreed
to act as a union observer. On her return to the plant Salinas sent for her
and questioned her as to her union membership and as to why the Union had
called her to the meeting in Akin's office."
Also as is noted hereinabove Salinas, on the morning of the election, again
questioned Munoz as to her union membership and advised her that if the Union
came into the plant the plant would be closed.
As set forth in detail above, Juanita Lopez, who was also a union observer on
election day, heard Salinas advising employees to vote "no" which was,a vote
for Akin and that a vote "yes" was a vote for the Union ; and "those that voted
for the Union had no more work." "
3. Conclusions
Upon the foregoing and upon the record it appears and the undersigned finds
that by the acts and conduct of Faustina Salinas found and described herein;
by the acts and conduct of Mike Santana detailed hereinabove ; and by Akin's
statement to Olivia Garcia and Frances Guajardo on or about December 5, 1950,
set out hereinabove, to the effect that before he would employ a boy or girl
sent to him by the Union he would close his plant and go on a vacation, Respond-
ent has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1)
of the Act.
" While Salinas was selected as the observer at the election on behalf of Respondent, she
was not present at the meeting on June 20 when the matter was discussed by representa-
tives of the Board , the Union , and Respondent . The record does not disclose how Faustina
learned of Munoz' having been present at the meeting, but her activity in strongly ques-
tioning Munoz soon after the meeting would indicate that her interest was one other than
idle curiosity.
As While Akin contended that he neither authorized nor knew that Salinas was engaged
in antiunion activities , it would appear that Salinas would not have engaged in such an
active campaign against the Union on the day before and on the day of the election unless
she believed that it was the desire of Akin. It is so found.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discriminatory discharges
(a) Olivia Garcia
Garcia, a resident of Mission , Texas, first went to work for the Respondent
in December 1941 or 1942 .40 Garcia thereafter worked for the Respondent or its
predecessor during the years 1943, 1944, 1945, 1946 , and after 1946 she did not
work at the plant until the seasons of 1948, 1949 , and 1950. Garcia worked
during the years above mentioned during the seasons when the plant was oper-
ated . She worked on the peeling of tomatoes , packing or canning, green beans,
beets, carrots , potatoes, spinach , and black -eyed peas. During those seasons
that she worked at the plant it was her practice to go to the plant before the
season began to apply for work, and prior to the spring of 1950 she had never
been sent for by the Respondent or its agents.
After her absence from the plant during the year 1947, Garcia went to the
plant in the fall of 1948 at which time she was employed by Faustina Salinas
who employed her and assigned her to work, and thereafter directed her work."
She joined the Union on the 5th of February 1949 and during that time had
i conversation with Salinas concerning the Union . Her first conservation con-
cerning the Union with Salinas occurred in 1948, in December of that year, at
the time the union organization was just getting under way;'8 and a further
conversation was had with Salinas in December of 1949 at which time Salinas
went about the group with whom Garcia was working and asked them one by
one who was in the Union . Garcia testified :
I told her I was in the Union and then she said that Mr. Akin did not
want workers of the Union in the plant-, after which Salinas went and
talked to Akin who was standing to one side.49
Garcia was laid off by Salinas in January 1950 with the statement that Salinas
was sorry to lay her off but that "Mr . Akin did not want workers of the Union
in his plant."
As set forth hereinabove, the Union filed a charge against Respondent under
date of January 26, 1950 , in which it named Garcia as one of the complainants.
After Garcia had been terminated in January 1950 , and prior to the spring
opening of the plant in April of 1950, Mike Santana, a longtime supervisory
employee of the Respondent , called at Garcia's home and told her that there
was work and that she should return to work at the April opening.-, She did
return to work in April of 1950 and worked until June 5, 1950, at which time
the tomato season ended . This was the first occasion during the time Garcia
was employed by Respondent on which any of the Respondent's representatives
had come to her home and requested her to return to work.
In the fall of 1950 Garcia went to the plant during October , asked Salinas for
work , and was advised by her that they did not have any work . Garcia returned
46 The Respondent herein , a corporation , was organized in or about 1945. Harold Akin
is the principal stockholder of such corporation and describes himself as "owner and opera-
tor of Akin Products Company and principal stock holder ." According to Akin he built the
plant at Mission , which his corporation now operates, in or about 1941. Prior to the
organization of the corporation Akin was associated with Lee Akin & Sons, a copartnership
composed of his father, himself, and presumably another brother . A number of witnesses
testified that they started to work for Respondent in or about 1941 and apparently did not
know the distinction between the prior copartnership and the present corporation.
17 Garcia testifies that she did not see Akin with reference to her reemployment in 1948.
42 The conversation referred to last above is set out in section III, A, above.
4 The conversation referred to as having taken place in December of 1949 Is quoted In
section III, A, above.
AKIN PRODUCTS COMPANY 1307
to the plant on October 16 and also on October 30. On October 16, when Garcia
saw Salinas, the latter informed her that the Respondent was "not going to
hire one more."
Garcia returned to the plant on or about November 6 and again asked Salinas
if she had work for her. Salinas replied in the negative and then proceeded
to go through the line of waiting workers and selected 12 of them and gave
them work but refused to employ Garcia.
On the occasion of her visit to the plant in November, Garcia was wearing
an AFL union button. In her discussion with Garcia, Salinas told the former
that she could not give her work but that she could talk to Mr. Akin 60 Garcia
went to Akin's office and asked his secretary if she could see him. She was
informed that Akin was in San Antonio (Texas).
During December 1950 Garcia made a second trip to Akin's office and was
accompanied on this occasion by Frances Guajardo ; each was wearing a union
button. On this occasion Garcia and Guajardo got to see Akin at which time,
as is set forth hereinabove in section III, A, Akin refused to give them work
and, among other things, said :
Olivia, I know my business, as you may know yours, but to the boy or
girl that has reported to me, I do not give work and the day that they make
me employ a boy or girl of the Union that has reported to me, that day I
close the doors of my plant and go on vacation 61
afound above, on November 6 Salinas first hired 12 women whom she selected
from the crowd but omitted selecting Garcia. Later on that day Garcia, who
had remained, noticed that Salinas hired 7 additional employees, after which
she turned to where Garcia was standing and said, "Look" and took hold of
Garcia 's AFL button and again refused to employ Garcia.
Under date March 21, 1950, and.at a time when the only charge which had
been served upon the Respondent contained the names of but three women
employees of Respondent as complainants, consisting of Garcia and two others,
counsel for Respondent wrote a field examiner for the Board suggesting inter
alia that the complaint in the instant case be dismissed, i
or at least be held in obeyance until after the June tomato pack, and then
you can check the records of Akin Products Company to satisfy yourself
whether or not these complaining employees were reinstated.
Thereafter the first amended charge naming a total of six claimants was issued
and served on Respondent under date of May 31, 1950; at which at least two 6'
of the three claimants named in the charge were employed by Respondent in the
spring season which opened in April 1950.
A second amended charge was filed, issued, and served on November 24, 1950,
which named six claimants, including Garcia and Villareal who had worked
the spring season of 1950 referred to above.
The foregoing and the record discloses that Garcia was a long-time employee
who had been employed at least seven seasons out of eight, and one whose work
60 The record discloses that upon different occasions during the fall of 1950 , in November
and in December, that Salinas had refused employment to four or five applicants who were
wearing union buttons and advised them that they could go and take the matter up with
Akin . Insofar as the record discloses these two occasions are the only ones upon which
Salinas, ,advised applicants to go to Akin and make application to him for employment:
51 Akin 's version of this,event is set forth hereinabove and in such version Akin does not
refer to or deny having made the above-quoted statement. Garcia's version was substan-
tially corroborated by Guajardo and is credited by the undersigned, who finds that Akin
made the statement substantially as it is quoted above.
0 Garcia and Villareal.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must have been highly satisfactory, since contrary to its usual custom, Respond-
ent sent Santana to solicit her to return to work in April 1950, unless perchance
Respondent had solicited her return to work with the expectation or hope that
the charge and complaint would be dismissed.
Garcia's reception by Respondent in November and December 1950 would tend
to lend credence to the latter view. In any event Respondent knew Garcia was
an active union member and Akin, as is set forth in section III, A. above, in-
formed her in person and in substance that before he would put to work a boy or
girl sent to him by the Union to personally ask for a job that he would close the
plant and go on vacation.
The Respondent offered no testimony directed personally towards Garcia in
explanation of her discharge in January 1950, or its refusal to reemploy or reiq-
state her either October or December of 1950.
On the basis of the foregoing and upon the entire record herein, the under-
signed finds and concludes that by the discharge of Olivia Garcia on or about
January 16, 1950; and by its refusal to rehire her during October through Decem-
ber 1950, the Respondent has discriminated in regard to her hire and tenure of
employment, and thereby interfered with, restrained, and coerced Garcia in the
exercise of the rights guaranteed under Section 7 of the Act, in violation of
Section 8 (a) (1) and (3) thereof.
(b) Raul Hernandez
Hernandez started to work,for Respondent about 1947 at which time he was
employed by Plant Foreman Santana. During some of the seasons subsequent to
1947, Hernandez talked with Akin concerning his returning to work at the open-
ing of such seasons. During the seasons he was employed Hernandez received
his instructions from Santana.
During his last employment which began in December 1949 and ended witb
his discharge on January 12,68 1950, Hernandez was employed as a truck driver
on a dump truck 64 and was the only one so employed at the time of his discharge.
With reference to his discharge, Hernandez testified :
Q. You know approximately. when you joined the Union?
A. Yes, sir, it was on January 14th, 1949.
Q. All right, sir. Now, Raul, there is testimony in the record, in sub-
stance, that you were discharged in January of 1950.
A. Yes, sir.
Q. Who discharged you?
A. Mr. Akin.
Q. Where you-Will you relate just how, or rather, will you relate what
happened when you were discharged?
A. Well, I went to the plant ; I reported at 1:00 o'clock that day and
didn't find my checking card there; I see Mike Santana and asked him
what was the matter, and he told me that Mr. Akin had fired me. I asked
him why he had fired me; he said I joined the Union.66
"While the record at times refers to the date of Hernandez ' discharge as Sunday,
January 12, 1950 , the facts are that January 12 came on Thursday and Thursday is the
beginning of Respondent's workweek , from all of which it would appear that the discharge
actually occurred on Sunday, January 15, 1950. It is so found. • 1 . .
64 According to Akin a truck driver was required to have "chauffeur's license" in order
to operate a truck.
51 It should be noted that Mike Santana was not called as a witness.
AKIN PRODUCTS COMPANY 1309
According to Hernandez, after learning from Santana that he had been fired,
he returned to his home and returned to the plant the next day, Monday morning.
As to the events of that day, Hernandez testified:
Q. Who did you see then?
A. Well, I was sitting near the boiler and saw Mr. Akin ; he said, "Well,
you know you can't get any job here; what are you doing here?" I told him
the reason ; I told I didn't know why I was fired ; I asked him for the
money (wages due). He said, "Well, I am going to pay you whenever I
want to."
Hernandez then went to town and contacted one Gabriel Navarro, whom he
described as "the Deputy Sheriff or constable," and induced him to accompany
Hernandez to the plant in an effort to collect the latter's wages. Hernandez
testified :
Q. What happened then, if anything?
A. I took him to the plant to get my pay.
Q. What did you do then?
A. He told me that I could not go inside of the property of Mr. Akin ; I
stayed outside; he went inside to get my pay.
Q. What happened then?
A. After a little while he came out of the office with the check, made a
sign for me to come and get it; I went and got it.
Akin, as an adverse witness called by the General Counsel, in part testified :
Q. All right, sir. Now, who discharged Raul Hernandez?
A. I did.
Q. Do you recall the date?
A. One Sunday morning; I don't recall the date, but it was on Sunday
morning.
* * * * * *
Q. What did you say at the time of the discharge?
A. I told him I did not need him any more; he wouldn't come to work;
I told him I needed someone steady that would be responsible for the job
he was supposed to be doing.
Q. Was that the entire conversation?
A. He asked me, if I remember correctly about getting paid . I don't
remember what I told him.
Q. Well, do you remember if you paid him?
A. I have a cancelled check that says he was paid.
Q. I ask you if he wasn't paid on Monday?
A. Possibly.
Q. I ask you if a Deputy Sheriff didn't see you about paying him?
A. I don' t recall.' [Emphasis supplied.]
)"'Akin's testimony quoted next above was given as an adverse witness when called by the
General Counsel in the instant hearing on July 10, 1951. On July 16, 1951, as a Respond-
ent witness, Akin testified :
Q. I see. Now, there has been a lot of testimony about ( Raul Hernandez ), to the
effect that you wouldn't pay him for that last few day's work , that he had to get a
Deputy Sheriff to get it for him, get the money. What do you know about that, if you
remember?
A. I could put that in awful strong language at this time . He didn 't get any Deputy
Sheriff ; I have always paid the employees ; they have never suffered from not being
paid, not one minute, and he states that the Deputy Sheriff came there ; the Deputy
Sheriff works ; he is on my payroll.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Akin stated that Hernandez' alleged absenteeism was the reason for his discharge
and particularly to "the time immediately preceding" the discharge. He testified :
Q. You say the time preceding his layoff? What period of time are you
referring to?
A. Well, the week previous and the Saturday preceding the Sunday that
I fired him.
Q. You fired him, then because he was not at work the Saturday before
the Sunday that you fired him? ,
A. I think that is right, to the best of my knowledge at the present time.
[Emphasis supplied.] 64
The record discloses that between January 5 and 15, 1950, inclusive, Hernan-
dez did not work Saturday, January 7, or in the forenoon of Sunday, January
8 69 For the payroll of January 12.he worked until discharged on Sunday,
January 15.
Hernandez testified that on those occasions on which he wished a day off he
would make a request to Mike Santana, who always gave him permission to take
the day off when he asked for it; and that the occasions upon which he was
absent from work were for the purpose of taking his children to doctors.`o
Issues, Contentions, Conclusions
Respondent contends in substance and effect that it discharged Hernandez for
the reasons: (1) His habitual absenteeism extending back to prior seasons; (2)
particularly absentness during the week preceding his discharge; and (3)
loafing at the dump ground after unloading refuse from plant.
As to contention (1), it would appear that if the alleged absenteeism had
existed in prior seasons that Akin would have refused him employment in the
1949 season. No concrete testimony was offered upon which a finding may be
based holding that Hernandez habitually absented himself from his work with
Respondent without prior permission. Contention (1) is without merit and is
so found.
As to contention (2), the undisputed and credited testimony disclpsese that
Hernandez was absent from work on Saturday, January 7, 1950; and like some
12 or 13 other employees did not report until noon on Sunday, January 8, 1950;
and as to any leave of absence taken by him during the time or times of regular
or specially ordered work hours, he took such leave with the prior knowledge
and consent of Plant Superintendent Mike Santana ; ®0 and as to the fact that
Herdandez did not report to work on the Sunday he was discharged until at or
about 1 o'clock, the record discloses without dispute that Superintendent Samp-
son had so instructed him 81 Contention is without merit and it is so found.
51 Akin testified that for the payroll period of January 12, 1950, Hernandez worked 16%
hours on Thursday, 15 hours on Friday, 9 hours on Saturday , and was discharged on Sun-
day. Akin did not remember date of discharge but testified it was on a Sunday.
58 The Respondent 's workweek consists of 7 days during canning seasons. The'record
discloses that in addition to Hernandez , 13 other employees did not sign in until after
12 o'clock noon and one signed in at 11 : 45 a. m . on Sunday , January S.
cs As has been stated hereinbefore , Mike Santana was not called as a witness, and
Hernandez testimony in connection with his "days off" is not otherwise controverted.
60 Santana was not called as a witness to dispute Hernandez ' testimony in any regard,
either as to Santana's statement to Hernandez to the effect that the latter 's time card bad
been withdrawn and Akin had ordered his discharge because he had "joined the Union."
61 Hernandez so testified . Sampson called as a Respondent witness subsequent to Her-
nandez ' testimony was not questioned concerning such testimony and the same is not
otherwise controverted.
AKIN PRODUCTS COMPANY 1311
As to contention (8), alleged loafing at dump grounds, Hernandez when a
witness on July 10 was not questioned on either direct or cross-examination con-
cerning this alleged neglect of his duties which was not testified to until either July
16 or 17 by Akin. At the most the contention was that he had wasted some 30
minutes visiting and smoking with the caretaker of the dump grounds. Since
such alleged neglect appears to have happened some weeks before Hernandez'
discharge, the undersigned is of the opinion that it could not have been a bona
fide motivating cause of such discharge, and so finds. Contention (3) is with-
out merit and so found.
Concluding Findings
On the basis of the foregoing and upon the record the undersigned concludes
and finds that Akin did not personally discharge Hernandez on Sunday, January
15, 1950; that Akin did not see or talk to Hernandez on that day ; and that
Hernandez was notified and informed of his discharge by Mike Santana in the
manner and by words as testified to by Hernandez, which were to the effect
that Akin had ordered his discharge because he, Hernandez, was in the Union.
The undersigned further concludes and finds that the events of the meeting
between Hernandez and Akin at which the question of payment of wages to
Hernandez happened, occurred, and took place substantially in the manner
testified to by Hernandez as is set forth above, including Hernandez' procure-
ment of a deputy sheriff or a constable to assist him in the collection of wages
then due him from Respondent. From the foregoing the undersigned finds and
concludes that by the discharge of Raul Hernandez on or about January 15, 1950,
the Respondent has discriminated in regard to his hire and tenure of employment,
and thereby interfered with, restrained, and coerced said Hernandez in the
exercise of the rights guaranteed under Section 7 of the Act, in violation of
'Section 8 (a) (1) and (3) thereof.
C. The alleged discriminatory discharges
(a) Reynaldo Hernandez
Hernandez had been employed by the Respondent for the regular season pre-
ceding that of December 19, 1949. He worked the entire season doing all types
of work under Warehouse Foreman Ray Houston. He was assigned to piling
cases of canned goods and refers to himself as a "cratelifter." During this
employment he worked 2 days and 1 night. On the day before his discharge,
Houston asked him if he was not a member of the Union and Hernandez replied
in the affirmative. Houston then informed him that he wished to get in the
Union and asked what the procedure was. Hernandez told him he was supposed to
pay initiation fees and that was all there was to it. The following day, after
the conversation concerning the Union, Houston laid him off and informed him he
did not need him any more as they had no more work for him.
Cross-examination . Hernandez testified :
Q. Isn't it true, Reynaldo, that you were hired to do two or three days
work along with 4 other boys, 5 of you, 1 boy was laid off the day before you,
2 others the same day you were and another boy the day following?
A. I don't know about those boys ; just fired me by myself ; I don't know
about the others fired.
While Hernandez testified that he considered himself a regular employee, he did
not know that the work for which he was hired would last only for a day or two.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While he disclaims knowledge as to when the other boys were fired, lie does not
deny there were others doing the same type of work that he was. It would
appear that if he was the only "cratelifter" on the job that fact would have been
brought out by the General Counsel in his examination.
In view of the type of production had at the Respondent's plant, with seasons
on different products, closing after a comparatively short run, the services of
cratelifters must of necessity be more or less intermittent and not a continuous
operation. While the undersigned credits Hernandez' testimony as to Houston's
inquiries concerning his union membership which were per se a violation of the
Act, the undersigned is of the opinion and finds that the records will not support
a finding that Reynaldo Hernandez was discharged for union activities. It is
however, found that by Foreman Houston's interrogating Hernandez concerning
his union membership , the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of
the Act in violation of Section 8 (a) (1) thereof.
It will be recommended below that the complaint, insofar as it alleges
Hernandez' discriminatory discharge, be dismissed.
(b) Maria Villareal 87
Villareal had been employed by the Respondent and the predecessor copartner-
ship, of which Akin was a member, from 1941 to 1944 inclusive after which she
was not employed at the plant until 1948, at which time she started to work, and
continued, during the seasons of about mid-January 1950. As has been set forth
in some detail in section III, A, above, Salinas interrogated her and others as to
her knowledge concerning the Union ; that it was not necessary to enter the Union
in order to work at the plant; and Akin did not want union members as workers
in his plant.
She found her card had been taken from the rack and was told that Akin
had taken cards of those who did not want to work there. Villareal went to
the plant about April 12, 1950, and looked for work. She consulted neither Akin
nor Sampson concerning employment, did consult Salinas, who put her to work
just as she had done in 1949. She continued to work from April 12 to June 5 of
1950, when the plant closed for the season.
In November of 1950, Villareal went to the plant, contacted Salinas but was
not employed. On this occasion she was accompanied by two other women.
When she returned to the plant some 2 or 3 days later, found that Salinas had
given the two others who had accompanied her jobs. Salinas again informed
her that there was no place for her.
She had joined the Union on February 15, 1948, and wore the union button
at the time she applied for work in November of 1950. However, the two women,
who had been put to work a day or two after the three had first visited the plant
and made application, did not wear union buttons.
Villareal testified that she was discharged on the 15th or 17th of 1949, not-
withstanding that she testified that she remembers working in April of 1949,
December 1949, January 1950, and in April, May, and June 1950.
On the basis of Villareal's testimony, a finding of a discriminatory refusal to
employ would have to be based upon Salinas' refusal to employ her in November
of 1950. The record clearly discloses that Salinas took an active part in elimi-
nating union members from employment and while such may have been her
intentions in November of 1950, the record contains insufficient testimony to
demonstrate that there was, in fact, work for her on the occasion when she
'^$ Sometimes in the record referred to as Maria Espinoza Villareal.
AKIN PRODUCTS COMPANY 1313
applied in November 1950 . On the basis of the foregoing and the record the
undersigned concludes and finds that the General Counsel has not sustained
the burden of proof to the extent that it will support a finding of discrimination.
It will be recommended below that the complaint insofar as it so alleges, be
dismissed.
(c) Porforia Cantu
Cantu had been employed by Respondent some 3 years, starting approximately
in the season of 1948; she joined the Union in 1949 but could not fix the date
or month ; and had formerly worked for Respondent or its copartnership pred-
ecessor some 6 years or so, or for a total of about 9 years employment in the
plant.
Prior to her layoff or discharge in 1950 and sometime in 1949 , she had a con-
versation with Salinas concerning the Union but was unable to give the details
of it or the approximate time , except to say that it was prior to her termination
in January of 1950.
Cantu fixes January 5 as the last day she worked for Respondent in 1950;
testified , however , that she worked until the close of the tomato season and since
the record shows that such closed approximately January 15 , is clear that Cantu
is mistaken in fixing January 5 as the day she last worked.
Cantu testified that she sought work with the Respondent in November of
1950, at which time she saw Faustina . She testified :
Q. What did Faustina tell you?
A. That there was no work for those in the union.
Cantu testified that she wore her union button when working in the beans, which
must have been in January of 1950, but not in November of 1950 when she last
sought work.
The undersigned credits Cantu 's testimony to the effect that Salinas told her
that "there was no work for those in the union ," but since the record does not
show or indicate that there was work for those "not in the union " at the time
Cantu made application for a job in November of 1950 , the record will not
support a finding that she was refused work at that time because of her union
membership and activity , since it may well be that there was no work at that
time to which Cantu could have been assigned and the statement that she could
not have the work because there was none for those in the Union , was put forth
for the purpose of discouraging membership therein . It is mere speculation as
to what the exact situation was at the time and the fact remains that the record
will not support a finding that Cantu was discriminatorily refused employment
in November of 1950. It is so found.
It will be recommended below that the complaint insofar as it so alleges, be
dismissed.
(d) Maria Guerra
Ouerra was employed by the Respondent in November 1949 . She joined the
Union in that same month . And when she sought employment she got in touch
with Faustina , was put to work after Santana recommended her, as a sister of
Manuella Rodriguez . She was employed the day she made application and did
not see or talk to Akin.
Salinas told Guerra that Akin had sent her to ask Guerra and the others which
ones were in the Union ; that she was to choose 16 workers from among the
older ones and did not want workers of the Union . Guerra testified that she
did not tell Salinas that she was a member of the Union , nor did she tell Santana
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or Akin such fact. However, she was laid off on January 16, 1950. She
testified :
Q. Who, if anyone, told you you were laid off?
A. Faustina told me I had no more work; and I told her not to lay me
off because I had 7 children and I needed the work.
Q. Was anything else said?
A. Then she told me that Mr. Akin was not going to employ those in the
union , only old workers.
As set out in detail above, in section III, A, Santana also told Guerra, when
the latter asked him if he had work for her, he was not going to give work to
those in the Union, "and we should go and ask for work from the union because
Mr. Akin did not want those of the union there."
Guerra did not go to the plant and seek work thereafter but did telephone
Faustina on four occasions but without results.
The fact that Guerra was informed at the time of her layoff that Akin was
not going to employ those in the Union merely indicates that Salinas and Fore-
man Santana were of the opinion that she was a union member ; and since she
first started to work in 1949 she could scarcely qualify as one of the "old
workers."
Upon the foregoing and the record, the undersigned is of the opinion and finds
that while the evidence may indicate Respondent's refusal to reemploy Guerra
constitutes discrimination, it is insufficient to support a finding to that effect.
It is so found.
It will be recommended below that the complaint insofar as it so alleges, be
dismissed.
(e) Manuella Rodriguez
Rodriguez was of the opinion that she had worked some 3 years for Re-
spondent Akin's father, was not certain. She was, however, certain that she
had worked for Respondent in 1948, 1949, and 1950. She testified that she was
laid off by Respondent in February 1950; and that such layoff was made by
Salinas. However, she did not remember the exact day. She subsequently
testified that she worked on tomatoes in January of 1950 but still insisted that
she was not laid off at that time, but was working at the time of her layoff.®
Rodriguez testified that she joined the Union at the same time that her sister,
Mrs. Cantu, did but could not fix the exact time. She testified that she attempted
to get reemployment in November of 1950 at which time she contacted Salinas
for a job and was informed that Salinas did not have any work for her because
she was in the Union "
Rodriguez further testified that she attempted to get employment in 1950 but
without success.
With reference to her application for a job in November of 1950, the plant was
already opened and started. She was informed, however, at that time that if
Respondent needed any extra help, they would let her know. She testified that
she wore her union button in 1950 when she was working in the Respondent's
plant. She did not testify that she wore it when she made application for the
job in November of 1950.
From the foregoing, it would appear that Rodriguez was retained after the
layoff in the tomato season in mid-January 1950, notwithstanding that Salinas
had theretofore questioned her concerning her union membership.
88 It may well be that she was one of the comparatively small number that was assigned
to work on beets at the time of the tomato layoff in January 1950.
u Rodriguez testified that Faustina knew that she was In the Union because she had
asked her during 1950 before the time Rodriguez was seeking employment in November 1950.
AKIN PRODUCTS COMPANY 1315
It nonetheless appears from the foregoing that the record will not support a
finding of the discriminatory refusal to reemploy in November of 1950. It is
so found.
It will be recommended below that the complaint insofar as it so alleges, be
dishii'ssed.
(f) Maria Urrutia
Urrutia was first employed by Respondent in November 1949; she sought em-
ployment from Salinas who agreed to give her work, took her social security
number, and started her to work. As set forth in some detail in section III, A,
above, Salinas interrogated Urrutia concerning the Union, and asked if she
belonged to it. The record indicates that Urrutia did not admit membership
in the Union, although she had joined it in November of 1949.
Urrutia was laid off in January 1950 at the time the tomato line closed down.
She testified:
Q. What did she tell you at that time, if anything?
A. That we were laid off because she knew we belonged to the union.
Q. Was anyone else present?
A. Others that were laid off that same day 05
Urrutia made application for'employment in November of 1950, at which time
she wore a union button. When she asked Salinas for work, the latter replied
that she had no work for her. She made a further effort in December 1950,
after the tomato season began , sought work from Salinas, who told her there
was no "other work," but gave work to other applicants.
As has been set forth in detail above, in section III, A, Urrutia was a young
girl when she started to work in November 1949, and normally could not have
competed with older and more experienced employees. The record does not
contain sufficient information from which one might determine what the
conditions were in November 1950 as to crop conditions and available employees.
Based upon the record it is clear that Salinas missed no opportunity to make
it clear that Respondent wanted no union members as its employees. Not-
withstanding all of which, it appears and the undersigned finds that the record
will not support a finding that Urrutia was refused reemployment in November
of 1950 because of her union membership and activity. It is so found.
It will be recommended that the complaint insofar as it so alleges, be dismissed.
(g) Olivia Rodriguez
Rodriguez, who had worked for the Respondent or its predecessor copartner-
ship as far back as 1941, was employed by the Respondent in 1949. She joined
the Union in January of 1949 and when she was employed for that year, Salinas
was not on duty that day, but she saw Santana and "he was the one that hired
us." 00
As has been detailed here and above, Salinas interrogated Rodriguez and
others concerning the Union in the railroad car where they had supper, and
ea It should be noted that Urrutia uses the pronoun "we" rather than the pronoun "I,"
thus indicating that Salinas' statement was not directed to her as an individual. But
inasmuch as the statement was directed to the group as a whole, it would appear that
Salinas assumed that all of the group had joined the Union. In any event, Salinas made
it clear that the Respondent wanted no union members in its employ.
88 The record is silent as to whom other than Rodriguez was employed by Santana on this
occasion.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Rodriguez was laid off in 1950, Salinas was the one who informed her and
others. Rodriguez testified :
Q. Was anything else said?
A. Various ones of us asked her why she didn't leave us if some few
were going to be left on-"that Mike (Santana) said for us not to blame
anybody but the union."
s t s s s * e
Q. Did he say something about the union?
A. Just that we should not blame anyone except the union.
As has been detailed hereinabove, Rodriguez attempted to get employment in
the fall of 1950, starting in October. She saw Salinas about work, the latter
said she was going to employ just 10 "and that we should continue to come
around so if there was work, she could give us work."
She returned to the plant October of 1950 and reapplied for employment at
which time Salinas hired seven employees and when asked why she did not
give Rodriguez et at. a job, Salinas called attention to Rodriguez' AFL union
button.
It was on this occasion when Salinas suggested to Rodriguez and Olivia Garcia
that they should go and see Akin in person, which they did and were informed
that Akin was in San Antonio, Texas 6' At the time of her visits to the plant
in search of employment in November of 1950, Rodriguez wore her union button,
as did Manuella Rodriguez and Olivia Garcia.
Rodriguez testified that she did not tell Faustina that she was a member of
the Union, but wore her union button in November of 1950 at the time she ap-
plied for reemployment .68
The facts in connection with Rodriguez' case, as with those of the other women
employees described above in this section, are such, that although they tend to
indicate that she and the others were refused reemployment in the fall of 1950
because of their union connections and activities, are insufficient to support a
finding to that fact. It is so found.
It will be recommended below that the complaint insofar as it so alleges, be
dismissed.
(h) Manuella Alvarado and Elfida Far(as
Alvarado and Farias and each of them are listed in the amended complaint
as employees who had been discriminatorily discharged by the Respondent.
Neither appeared or testified at the hearing. Nor were any appearances made
on behalf of either of them. The record contains no testimony or evidence,
competent or otherwise, on which a finding may be based on to the effect that
the Respondent has discriminated against them or either of them.
It will be therefore recommended below that the complaint as to them and
each of them be dismissed with prejudice.
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 I, 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.
87 Garcia's return trip to see Akin in December, when she succeeded in meeting with him,
is described elsewhere hereinabove.
68 Rodriguez first testified that she wore the union button in November of 1949, subse-
quently corrected the date to 1950.
AKIN PRODUCTS COMPANY
V. THE REMEDY
1317
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the Respondent has discriminated in regard
to the hire and tenure of employment of Olivia Garcia and Raul Hernandez.
It will be recommended that the Respondent offer to them immediate and full
reinstatement to their former or substantially equivalent positions W and make
them whole for the loss of pay they may have suffered as a result of the dis-
crimination against them by payment to them of a sum of money equal to that
which each would have earned as wages from on or about November 1, 1950, to
the date of the offer of reinstatement, less their net earnings."
The loss of pay will be computed on a quarterly calendar basis, in accordance
with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB
289. Earnings in one particular quarter will have no effect upon back-pay liabil-
ity for any other quarter. It is further recommended that the Respondent
make available to the Board, upon request, payroll and other records to facili-
tate back-pay computations. F. W. Woolworth Company, supra.
The undersigned is of the opinion that the unfair labor practices found herein
disclose "an attitude of opposition to the purposes of the Act to protect the
rights of employees generally," 7' on the part of the Respondent which indicates
the likelihood of its resorting to other and further acts of interference, restraint,
and coercion, in violation of the Act. It will be recommended that Respondent
be ordered to cease and desist from in any manner infringing upon the rights
of employees as guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Citrus, Cannery Workers and Food Processors Union No. 24473, AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Olivia
Garcia and Raul Hernandez, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
91 The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch,
65 NLRB 440, 497-8.
'+0 By "net earnings" Is meant the earnings less expenses , such as for transportation,
room , and board , Incurred by an employee in connection with obtaining work and working
elsewhere , which would not have been incurred but for this unlawful discrimination and
consequent necessity of her seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Federal , State, county , municipal,
or other work -relief projects shall be considered as earnings . Republic Steel Corp 01 rztion v.
N. L. R. B., 311 U. S. 7.
71 May Department Stores v. N. L. R. B., 326 U. S. 376.
215233-53---54