Caamano Bros., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 823 (N.L.R.B. 1985)

CAAMANO BROS. - 823
Caamano ' Bros ., Inc. and Produce , ' Refrigerated - &
Processed Foods & Industrial Workers, ' Local
630, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 21-CA-22113
28 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On ' 13 September ''1983 Administrative Law
Judge Earldean V.S. Robbins issued the attached
decision . The Respondent filed exceptions and a
supporting brief. -
The Board, has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings , findings,' and
conclusions and to adopt the recommended Order
as modified.' •
ORDER } F.
The National Labor. Relations Board • adopts the
recommended Order of the administrative _ law
judge as modified below and orders that-:the Re-
spondent, Caamano Bros.,, lInc., Los Angeles, Cali-
fornia, `its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Delete paragraphs 2(b) and (c) and reletter the
subsequent paragraphs . , .. . i : ,
2. Substitute 'the' attached notice foi• that of the
administrative law judge.
The Respondent has excepted to some of the judge'; dredibility'find-
mgs. The Board 's' established policy is not'to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
In finding that Juan Castaneda and Julio Medrano were discharged in
violation of Sec 8(a)(3) and ( 1), the judge relied in part on union animus
revealed by earlier discharges by the Respondent found unlawful by Ad-
nunistrative Law Judge Richard J Boyce in a separate Board proceed-
mg. On the basis of our decision to adopt Judge Boyce's findings in that
case, 275 NLRB 205 (1985), as well as'antiunion statements by A Me-
drano and D . Caamano dunng the March 1983 picketing , we find ample
support for the judge 's findings that union animus motivated the Re-
spondent in discharging these employees
We disagree with the judge 's finding that the Respondent's failure to
recall Rene Gonzalez from layoff violated Sec 8 (a)(3) and (1) The
record does not support a finding that the Respondent hired any employ-
ee to fill the position vacated by J Medrano's discharge Thus, it is not
clear that, at any time relevant to these proceedings , there was a vacancy
which Gonzalez could have filled . We therefore dismiss that portion of
the complaint
Chairman Dotson also disagrees with the judge 's finding that the Re-
spondent violated Sec 8(a)(1) by remarks made to Rene Gonzalez on 16
October 1982 Unlike the majority , he does not find coercive A Mor-
eno's questions dunng a conversation with Gonzalez over the relative
merits and disadvantages of union representation
APPENDIX
NOTICE .To EMPLOYEES"Ì€ {
POSTED BY ORDER OF THE -
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States-Government
The National Labor-- Relations Board has found
that we violated the National -Labor' Relations. Act
and has ordered us td post and abide by =this-notice:
Section 7 of the' Act gives employees ` these 'rights.
To organize - ;
To form, join,' or assist any union , -
To bargain collectively through representa-
tives of-their own choice
To act together for. other mutual aid or -pro-
tection f :. .
To choose not : to ;engage in :any. of these,
protectedconcerted activities:
In recognition - of these. rights,; we notify, ! our em-
ployees, that:
.WE WILL, NOT • coercively interrogate:. our,. em-,
ployees as to their union sympathies. .. i.
WE,W,ILL NOT,tthreaten our employees that they
will never, return to; work for us because they en-.
gaged: in union or other protected concerted activi-.
ties. . ''
WE WILL NOT in any , like or, - related _ manner,
interfere with, restrain, -or, coerce you .,in the-exer-
cise of, the rights .guaranteed, you by Section --,7,..Of,.
the Act.,
- WE- WILL offer to, Juan Castaneda and Julio, Me-:
drano immediate-and full reinstatement ,to, their.
former,jobs ,or, if,those jobs. no longer ;exist, ;to. sub-."
stantially -equivalent,positions,-,without: prejudice to,,
their seniority or any other rights or privileges pre-
viously enjoyed .and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharges, less any net interim earnings,
plus interest. ' - _
WE WILL expunge from our files any reference
to the discharges of Juan Castaneda and Julio Me-
drano which occurred on 4 February and 16
March 1983, respectively, and notify them in writ-
ing that this has been done and that evidence of
those unlawful discharges will not be used as a
basis for future personnel actions against them.
CAAMANO BROS., INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge.
This matter was heard before me in Los Angeles, Cali-
275 NLRB No. 119
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fornia, on July 21 and-22, 1983. The charge was filed by
Produce, Refrigerated & Processed Foods & Industrial
Workers, Local 630, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union) and served on Caamano Bros., Inc. (Re-
spondent) on March 25, 1983. The complaint which
issued on May 9, 1983, alleges that Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act).'The basic issue here is whether Respond-
ent terminated employees Juan Castaneda and Julio Me-
drano and refused to recall employee Rene Gonzalez
from a layoff because they engaged in protected concert-
ed activity.
On the entire record, including my observation of the
demeanor of the witnesses, and after-due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent, a California corpora-
tion with a facility located in Los Angeles, California,
has been engaged in the wholesale' purchase and sale of
fresh produce and coffee. Respondent, in the course and
conduct of the. business operations, annually purchases
and receives goods and products valued in excess of
$50,000 directly from suppliers located outside the State
of California.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges; Respondent admits, and I find
that-the Union is now, and at all times material has been,
a' labor organization within the meaning of Section 2(5)
of the Act:
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent's workday commences at 2 a.m., in a facil-
ity located across the street from - the Los Angeles
produce market,' when a crew of four persons comes in
to set up the displays and get the floor ready for busi-
ness . The remainder of the employees commenced work
at 3-a.m. or later. At the time material herein this latter
group numbered 9 or 10, 4 of whom were drivers who
pick up and/or deliver merchandise using Respondent's
fleet of 4 bobtail trucks and 2 or 3 semitrailer trucks. The
other five or six employees were checkers and packers
who checked the merchandise, packed it when neces-
sary, and loaded and unloaded trucks.
In January 1983,2 Respondent's employees Julio Me-
drano, Juan Castaneda and Rene Gonzalez discussed
I The workday inside the market commences at 10 p in
2 All dates herein will be in 1983 unless otherwise indicated
among themselves, and individually discussed with
Union Organizer Barney Barnett, the possibility of ob-
taining union representation for Respondent's employees.
During the first 2 weeks of February, they all signed
union authorization cards.
1. The discharge of Juan Castaneda
Castaneda began working for Respondent as a checker
and packer in May 1982. He testified that some time in
January, during the lunchbreak, he had a conversation
with admitted Supervisor Jose Beltram and employees
Raulito, Ernesto, and Pepe. According to Castaneda, he
said there was going to be a strike on January 313 and
he would support it. Beltram told him not to pay atten-
tion to what the Union said, that it was trickery, a joke,
and the Union was there only to hook people, to mislead
them. Raulito said, "Don't go talking about the Union
because what you may get is they will fire you from
your job." Beltram does not deny this conversation.
On February 2 Castaneda signed-a union authorization
card. On February 4 at the, end of his. shift, according to
Castaneda, Beltram told him that, as of the following
week, he did not have a job, that it was canceled. Cas-
taneda asked why. Beltram said the orders were orders
from above.
Beltram denies that he discharged Castaneda or, that
anyone told him to do so. According to him, from the
beginning of Castanedas employment, he was supposed
to commence work at 3 a.m. However, after his first 2
weeks of employment, he always reported to work from
2 to 4 hours late and sometimes even later. Beltram
admits that for a period of time he gave Castaneda per-
mission to arrive at a later time but testified that he does
not recall exactly when this was. He also admits that Re-
spondent sometimes had a second shift which started
later than 3 a.m.
Beltram testified that on 15 or 20 occasions-some-
times once a week and sometimes once a month-he told
Castaneda that his starting time was 3 a.m. and that was
when Respondent needed him. According to Beltram,
Castaneda never responded verbally and he never report-
ed to work at 3 a.m. When asked why he tolerated such
tardiness, Beltram testified that he felt sorry for Castan-
eda even though, by the time he arrived, there was little
or no work for him to do.
However, according to Beltram, there came a time
when he felt he could no longer tolerate Beltram's tardi-
ness since it resulted in an increase in Beltram's personal
workload.' Therefore, during the week ending February
4, on several occasions, he told Castaneda that he had to
start reporting to work at 3 a.m. Castaneda said he
would telephone Beltram to lei him know whether he
could do so. Castaneda did call and said he could not
start at 3 a.m. and that he would talk to Respondent's
2 The strike did not occur -
4 Beltram did not explain in what manner his personal workload was
increased and it is somewhat difficult to understand this testimony since
he also testified that prior to September 1, 1982, he commenced work at
6 am and that at some time between September 1, 1982, and April 1,
1983, his starting hour changed to 9 30 or 10 a in , which latter time was,
by any account, after Medrano commenced work
CAAMANO BROS. - 825
president Daniel Caamano. Beltram -further testified that
Castaneda did call several times for D. Caamano but he
does not think he ever spoke to D. Caamano. Castaneda
did not report to work on Monday, February 7, or there-
after.
Castaneda - denies the chronic severe tardiness- attrib-
uted to him by Beltram. He also denies that Beltram
spoke to him during the week ending February 4, or any
other time, regarding starting to work at 3 a.m. Accord-_
ing to him, at the beginning of his employment, he start-
ed work at 2 a.m. About a month later, at his request be-
cause of a transportation problem, his starting time was
changed to 5 a.m. After about 3 months, Beltram in-
structed him to begin reporting to work at 6 a.m. In No-
vember, Beltram changed his starting time to 9 a.m. Ac-
cording to Castaneda he did not request these latter two
changes nor did Beltram explain why he made the
change. -
Castaneda's timecards show that from July -3 to 10,
1982, he started.work around 4 a.m. From July 12 to Oc-
tober 25, 1982, he,began work at around 6 a.m. From
November 5 to 19, -1982, he started work at around 5
a.m., but consistently worked.2 to 7 hours overtime ev-
eryday except one during this period. s From November
22 to December 14, 1982, he commenced work around 7
a.m:, and from December 15, 1982, until the-end of his
employment, he commenced work around 9 a.m.6
I ' do not credit Beltram that, with the exception of the
one period of time when he gave him permission to
report to work at 5 a.m., Castaneda was scheduled to
start work at 3 a.m. but, in fact, reported to work when-
ever he wanted to, 'always several hours late. I find it in-,
credible that Castaneda consistently was permitted to
report to work 2 to 6 hours late. Also, Castaneda's time-
cards reveal a pattern of reporting to work about the
same time for blocks of time, which is more consistent
with his testimony that his starting times were changed
by Beltram than it is with Beltram 's testimony that Cas-
taneda came to work whenever he chose to do so. I -fur-
ther note Beltram's testimony that many times there was
no work for Castaneda because he came so late; yet his
timecard shows that he worked overtime on a number of
occasions. In the circumstances, I find Beltram's testimo-
ny to be unreliable and' I do not credit him. On the other
hand, Castaneda impressed me as an honest, reliable wit-
ness who was endeavoring to tell the truth. Accordingly,
I credit him that Beltram discharged him on February 4
and told him that he had- orders from above to do so. I
also credit his undenied testimony that in January he told
Beltram- he would support a strike scheduled for later
that month. - '
2. The discharge of Julio Medrano
Julio Medrano commenced his employment with Re-
spondent as a truckdriver on February 24, 1982. He does
not possess a class I license so he can only drive the bob-
5 Generally, he clocked in a few minutes earlier or later than the time
indicated D Caamano indicated that Respondent tolerated tardiness at
least up to 30 minutes There were only a few occasions when J Me-
drano clocked in more than 30 minutes after the hour indicated herein
6 The record does not contain timecards prior to July 3, 1982
tail trucks. On February 10, 1983, he signed a union au-
thorization card. -On March 14, Barnett requested that
Respondent recognize the Union as the exclusive bar-
gaining representative of its employees. D. Caamano
denied the request. About 1 a.m.` on Tuesday, March
15, 7 the Union established a picket line in front of Re-
spondent's facility. J. Medrano and Gonzalez 'were the
only employees at Respondent who participated in the
picketing.
Barnett testified that about 2 a.m. D. Caamano told the
pickets that they were ' crazy, that the Union could do
them no good, and that the Respondent could do better
for them. Arnulfo Medrano, the dispatcher and an admit-
ted supervisor, told the pickets the Union was a commu-
nist organization that would not do them any good.
When J. Medrano reported to work around 3 a.m. that
day, he joined the picket line. According to J. Medrano,
while he was on the picket line, D. Caamano uttered a
vulgar Spanish colloquialism to Medrano which trans-
lates "the Union' is going to give you a penis." Gonzalez
joined the picket line at around 5 or 5:30 a.m. According
to him, Arnulfo Medrano addressed him and J. Medrano
on the picket line saying, "How pretty, how pretty, you
know what, you are not going to return to work." A.
Medrano admits that he saw Gonzalez on the picket line,
but denies that he said anything to him.
Initially D. Caamano testified that he said nothing to J.
Medrano while he was on the picket line, but that J. Me-
drano called him all kinds of names, such as bandito,
thief, and communist. He was then shown his prehearing
affidavit which reads in pertinent part:
On the day the Union had the picket line in front of
the Company, I saw the picket line when I arrived
at work. The picket line people were all screaming,
calling me all kinds of names, and so on, but I had
never seen any of them before. I did not see either
Rene Gonzalez or Juan Castaneda on the line.
About 8:00 a.m. I say Julio Medrano on the line,
but he wasn't there at the beginning. I didn't say
anything to Julio, and he didn't say anything. When
I saw him, I was in my office looking out the
window, so I couldn't say anything to him or any-
body else.
In explanation of this seeming contradiction, D. Caa-
mano testified that the affidavit referred to 8 a.m.,
whereas he was testifying as to what occurred around 4
or 5 a.m.
The picketing ceased that day between 10 a.m. and
noon. At some time during the day, D. Caamano signed
a collective-bargaining agreement with the Union.
On March 16, J. Medrano reported to work at 2:57
a.m. According to him, his fellow employees were some-
what distant toward him that day and A. Medrano in-
structed him to do sorting work instead of his regular
7 The testimony vaned as to the exact date of the picketing However,
it is undisputed that it occurred the day before J Medrano's last day of
work Since Respondent's records show that J Medrano's last day of
work was March 16, the parties stipulated that the picketing occurred on
March 15 -
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job driving a bobtail truck. That day Rolando Arraz-
caeta drove the truck which had been regularly assigned
to J. Medrano. After about 2 hours, the employee who
normally did cleaning_ work, Raul Agamenon, started
calling J. Medrano various derogatory names and gener-
ally insulting him. Agamenon also told J. Medrano that
he had a gun in his car for J. Medrano and other, union
members , and that if he became angry, he would have J.
Medrano physically assaulted . J. Medrano testified that
at various times when Agamenon was insulting him, A.
Medrano was present. J. Medrano asked A. Medrano to
tell Agamenon not to insult him. A Medrano said J. Me-
drano should ignore Agamenon.
J. Medrano also testified that some time later that
morning , after Agamenon had been dispatched to make a
delivery driving one of the bobtail trucks, J. Medrano
went into A. Medrano's ofice. According to J. Medrano,
he asked A. Medrano why he permitted the insults. A.
Medranb said he could not do anything about it,.that J.
Medrano knew how Agamenon was, that he was crazy
and did what he wanted to do. J. Medrano then asked
why A: Medrano 'had not dispatched him out on his. reg-
ular truck for deliveries. A. Medrano said he had orders
that there was no truck for J. Medrano and that he could
not make deliveries. He further said that there was no
work for J: Medrano and he should clock out. J. Me-
drano asked A. Medrano to • let him know when there
would be work. J. Medrano has not been called back to
work. -
A. Medrano testified that although Respondent has
four bobtail trucks, the pickets had damaged some of the
trucks so that on March 16 only - two bobtail trucks were
in service, .which were driven that day by drivers Ro-
lando 'Arrazceata and Carlos Canellas . The other two
trucks, including the one assigned to J. Medrano, were
not repaired until the following day.8 He further .testified
that Arrazcaeta and - Canellas were assigned to these .
trucks because they come in early , and J . Medrano did
not. By ; thetime J .'"Medrano arrived , according to A.
Medrano , the two trucks had.already left Respondent's
facility. A. Medrano • testified • that , the regular, starting
time for drivers is 3 a . m. and that Canellas and 'Arraz
caeta arrived at 3 a . m.; but he does not recall exactly
when - j. Medrano arrived , that it was possibly between ;
3:30 and 4 a .m.9 He admits that when J. Medrano report-
ed for work he assigned him to sort bananas , something-
he had never previously requested a driver to do .. 10
According to A.- Medrano , when J . Medrano finished
sorting the bananas about 5 a.m, ;he told him to, make a.
delivery . to,a market. J. Medrano said he ,did not want to
go out , on the street because ;his truck. was not'there. A. _
Medrano said J. -Medrano could use the van. J. Medrano
said : no, then he . would rather leave and return later. A.
Medrano • said - J. Medranoknew what he was,doing,. but .
he would advise him, not to leave. J. Medrano did not }
respond . He just left the premises.
8 Respondent normally used three-,bobtail trucks and utilized the fourth
one for- emergencies = I - , _, -
8 Timecards show that Arrazcaeta arrived at 2-30 a.m and Canellas
clocked in at 2 45 a.m -
r10 According to A Medrano, he had previously assigned drivers to
sort-other fruit when there were no deliveries to be made. ,
A. Medrano denies that he told J. Medrano to clock
out or that he heard Agamenon make any insulting re-
marks to J. Medrano. He admits that J. Medrano did say
something to him about Agamenon making these re-
marks and that he told him to ignore Agamenon, that he
was half crazy. J. Medrano insisted'that as a boss A. Me-
drano could say something to Agamenon. To 'which A.
Medrano replied, "You know that is the way he is. He is
always playing with someone." Nothing further was said
regarding the comments made by Agamenon.
A. Medrano also testified that after J. Medrano walked
out, he told Juan Bruno Caamano, Respondent's vice
president (B. Caamano) that J. Medrano had left ,the fa-
cility. B. Caamano asked why. A. Medrano said J. Me-
drano's truck was broken and he did not want to make a
delivery in the van. A. Medrano denies that anyone in-
structed him not to make a truck available for J. Me-
drano that day or that he should give J. Medrano a hard
time. D. Caamano denies giving such instructions or in-
struction to discharge J. 'Medrano. `B. C aamano did not
make such denials.
B. tCaamano testified that on March 16 there was only
one bobtail truck operable. Either Canellas or. Arrazcaeta
drove this truck, however he does, not recall which one
did. The other drove a semi-trailer that day. A. Medrano
also testified that after he told him J. Medrano had re-
fused to drive the small truck and-had walked out he im-
mediately telephoned Union Representative George
Huizar.' A. Medrano related to -Huizar- what had oc-
curred with J. Medrano, told him that the other truck
was broken, and asked what he should' do. Huizar said,
"Well, if he walked out, immediately he is fired:" B.
Caamano said ."Okay, fine," and immediately thereafter
discharged J. Medrano. According to B.. Caamano, A.
Medrano made the delivery that J. Medrano refused. A.
Medrano testified that he does not recall who made that
delivery nor does he recall, whether he made a delivery
that day. .
B. Caamano testified that he had assumed that follow- .
ing his participation in the picketing J. Medrano would
not return to work- because he would be ashamed to after
the many favors they had done for him. According to B.
Caamano, he thought that since they had been so nice to
J. Medrano and had always been very fair with their em-
ployees, they did not deserve a picket line.
D. Caamano testified that on March 16_ ,two . of the
bobtail trucks, were, operable. He also testified that, he.
was surprised to see J. Medrano:on the, picket line be-
cause Respondent; maintains a,good, relationship ,with its .
employees and J. Medrano, along with the other pickets,,
was insulting them, all with . the, name - calling . ;He admits
that as a-result of this -he initially had bad-feelings about.
J. Medrano continuing in Respondent''s employ, but that.
this changed once he signed the collective-bargaining
agreement - and, the union representative , apologized; for
the name calling and told him that the; picket activity
was -all part of the game. and meant nothing ' personal
against anyone. According to D. Caamano, he then un-
derstood that the pickets were trying to serve a purpose:
,J.. Medrano denies .that he was,told - that his regularly=
assigned truck .was- not operable and testified that it was,
CAAMANO • BROS.
in fact, operable, because he saw Arrazcaeta leave Re-
spondent's facility that morning in the truck to make de-
liveries. He also denies that A. Medrano told him to
make a delivery in the van.
I do not credit Respondent's witnesses testimony that
there was no truck available for J. Medrano on March
16. In this regard, I note that both A. Medrano and D.
Caamano testified that two bobtail trucks were operable.
B. Caamano testified that a semitrailer was in use that
day and was driven by either Canellas or Arrazcaeta.
Medrano's testimony. that the janitor made -at least one
delivery was not specifically denied. Thus, it is apparent
Respondent had in use that day at least three of the
trucks it regularly use and that it needed J. Medrano's
service as a driver of one of these 'trucks. In the circum-
stances, I I do not credit A. Medrano that the reason J.
Medrano was not immediately assigned a truck was be-
cause he came to work late, particularly since he was not
late and, even though the other two drivers did arrive
before him, Canellas' arrival preceded J. Medrano's' only
by 12 minutes. Since the employees who pack the orders
and load the trucks do not begin work until 3 a.m.,, it is
unlikely that anyone left to make deliveries prior to J.
Medrano's arrival.
Also, B. Caamano obviously tried to tailor his testimo-
ny to make Respondent's position more rational when he
testified that only one bobtail truck was operable. This
testimony was contradicted by D. Caamano and A. Me-
drano. Upon consideration of the' entire record and of
their demeanor on the witness stand, I find D. Caamano,
B. Caamano, and A. Medrano to be unreliable witnesses,
who slanted their testimony in•the:inanner deemed most
favorable to Respondent. I credit J. Medrano and Gon-
zalez as to the statements made to them on the picket
line by D. Caamano and A. Medrano: I further credit•J.
Medrano's' denial that he refused to make a delivery in
the van, that he was told' by A: Medrano that there -was
no work for him, that he had orders that there wag no
truck ,for him, that he could not make deliveries, and that
he should clock- out.
3: The failure to recall Gonzalez- -
'Gonzalez commenced his employment with' Respond-
ent in February 1982 as a truckdriver. He does not pos-
sess a class I license so he could only drive the bobtail
trucks. On February 10 he signed a union authorization
card. On March 2 he was laid off by B. Caamano. It is
undisputed that B. Caamano told him he was • being laid
off because there ' were not many orders and that he
would be recalled 'when- there' vas work. Gonzalez then
asked D. Caamano when' he `wou'ld'be recalled. D: Caa--
mano''saidthat work 'was' very 'slow,' that it was raining a
lot', but that Gonzalez would be recalled soon. The Gen=
era] Counsel does not contend that the layoff was :unlaw-
ful''
' Gonzalez 'testified that during the course' of his em-
ployment he had two conversations with A. Medrano're-
garding the Union. The first was on October 16,'1982,
about 3'days`after A. Medrano became a supervisor. Ac-
cording to Gonzalez, A Medrano asked, "What do you
think of the Union? Would you accept being in the
Union?" Gonzalez said, "Yes, because one received-more
827
benefits if one belonged to the Union." A. Medrano.said
many, times it,was best to be in the Union, but many
times -it was not good to be in the Union because the
Union would sell itself and then the employees would be
in bad. with-the Union. 11 Medrano denies this conversa-
tion. ' .
Gonzalez ,testified--that the second conversation was
about 3 days before he was laid off. 'A. Medrano told
him, "Rene, you know' what? If, the Union comes in
here, it's not going to be worth anything." A. Medrano
denies this conversation. I have found A. Medrano to be
an unreliable witness, and I credit-Gonzalez as to these
conversations.
On March 15, Gonzalez participated in the picketing
at Respondent's premises. While he was on the picket
line, A. Medrano told him, as set forth more fully above,
that he would, never return to work. Gonzalez has not
been recalled.
4. Conclusions
In view of my credibility findings, I find that Castan-
eda did-'not quit his employment with Respondent, but
was discharged, and that J. Medrano was discharged by
A. Medrano when A. Medrano told him there.was no
truck or work for him. I further find that the reasons as-
serted by Respondent as leading to the events which pre-
cipitated their separation from their employment are pre-
textual. In view of Castaneda's January statement to Bel-
tram, I find that Respondent had knowledge of Castane-
da's prounion and prostrike sentiments. I further find, in
view of the pretextual nature of Respondent's defense as
to - J. Medrano and Castaneda, Beltram's statement to
Castaneda and A. Medrano's statement to J. Medrano
that each of them was being discharged on orders from
above, the timing of their discharges, the antiunion
animus revealed by A. Medrano's March 15 statement
and by the earlier discharges found unlawful in Ethnic
Produce, supra, that Juan Castaneda and Julio Medrano
were'discharged on February 4 and March 16, 1983, re-
spectively, in violation of Section 8(a)(3) and (1) of the
Act. ' - -
As to the failure to recall Gonzalez, Respondent
admits that at least two employees were rehired since
Gonzalez' layoff. However the record does not indicate
for what positions they were hired. The only evidence
that Respondent had a driver position available after
Gonzalez' discharge is A. Medrano's admission that
when J.' Medrano was discharged, it was necessary for a
third person to-perform the work that J.' Medrano would
otherwise have performed: The failure to recall- Gonza-
lez `at ' this point `gives substance to A. Medrano's threat
that Gonzalez would not be recalled because he partici-
pated :in the picketing Accordingly, I find that for some'
period of 'time, Respondent used a replacement for J.
11 In May and June 1982, the Union engaged in organizing activities
among employees at another business operated by Respondent, across the
street from the facility involved herein In June, immediately following
the Union's demand for recognition, two employees who had engaged in
union activities were unlawfully discharged and told by their supervisor
that D Caamano was very upset about the visit from the union officials
and had ordered the discharges Ethnic Produce, 275 NLRB 205 (1985)
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Medrano and, in view of the circumstances set* forth
above, that Respondent's failure to recall Gonzalez as
such replacement was violative of Section 8(a)(1) and (3)
of the Act. -
I further find that by A. Medrano's October interroga-
tion of Gonzalez as to his union sympathies and his
March 15 threat, that- Gonzalez and J. Medrano would
never -work again for Respondent because they engaged
in the picketing, Respondent has. violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By unlawfully discharging Julio Medrano and Juan
Castaneda because of their prounion sympathies and/or
because. they engaged in union activities, Respondent has
committed unfair labor practices in violation of Section
8(a)(1) and (3) of the Act: `
3. By interrogating an employee as to.his union sympa-
thies and by threatening an employee that he will never
work for Respondent again because he engaged in union
picketing of Respondent's premises, Respondent has
committed unfair labor practices in violation of Section
8(a)(1) of the Act.
4 The above-described unfair labor practices are
unfair labor practices affecting commerce, within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom and take certain affirma-
tive action in order -to effectuate the purposes of the Act.
Having found that-Respondent unlawfully discharged
Julio Medrano and Juan Castaneda in violation of Sec-
tion 8(a)(1) and (3) of., the Act, I shall recommend that
Respondent be ordered to offer to each of them- immedi-
ate and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without, prejudice to their seniority or any other rights
or privileges previously enjoyed, and make,each of them
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, plus- interest, in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289, and Florida Steel Corp., 231 NLRB 651 (1977).12
Since the position to which Respondent refused to
recall Rene Gonzalez is the same position to which Julio
Medrano is to be reinstated, I shall not recommend that
he be reinstated and made whole from the date of the
discrimination. However, I shall recommend that he be
reinstated to any driver position for which he is qualified
which has become available since the unlawful refusal to
recall him, without prejudice to any seniority or other
rights or-privileges he previously enjoyed, and that Re-
spondent make him whole for any loss of pay he may
have suffered by payment to him of the sum of money
equal to that which he normally would have earned
12 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
from the date such position became available, plus inter-
est computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977). In the event that no such position
has become available, I shall recommend that Gonzalez
be placed on a preferential hiring list and if a driver posi-
tion for which he is qualified becomes available, offer
such position to him without prejudice to any seniority
or other rights or privileges he previously enjoyed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER -
The Respondent, Caamano Bros ., Inc., Los Angeles,
California, its officers, agents,- successors, and assigns,
shall •
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for engaging in union activities.
(b) Coercively interrogating employees , as to their
union sympathies. -
(c).Threatening employees that they will never work
for Respondent again because they engaged in union or
otherwise protected concerted activities.
(d) In any like or related manlier interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section-7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
- (a) Offer to employees Juan Castaneda and Julio Me-
drano immediate and full reinstatement to their former
jobs or, if those jobs no • longer exist, to substantially
equivalent positions, without prejudice, to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them, in the manner set forth in,the remedy section of
the decision.
(b) To the extent that a driver position for which he is
qualified has become available since the unlawful refusal
to recall him, offer Rene Gonzalez immediate and full re-
instatement to such position without prejudice to any se-
niority or other rights and privileges he previously en-
joyed, and make him whole for any loss of earnings he
may have suffered, in the manner described in the
remedy section of this decision.
(c) If no such position has become available, place
Rene Gonzalez on a preferential hiring list and if a
driver position for which he is qualified becomes avail-
able, offer such position to him without prejudice to any
seniority or other rights or privileges he previously en-
joyed.
(d) Expunge from its files any .reference to the dis-
charges of Juan Castaneda and Julio Medrano which oc-
curred on February 4, 1983, and March 16, 1983, respec-
13 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to'them shall be deemed waived for all 'pur-
poses - r -
CAAMANO BROS -
tively, and notify them in writing that this has been done
and that evidence of those unlawful discharges will not
be used as a basis for future personnel actions against
them.
(e) Preserve and; on request, make available to-the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other • records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its facilities in Los Angeles, California, Eng-
lish and Spanish language versions of the notice which -is
attached and marked "Appendix."14 Copies of the
14 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the- notice reading "Posted by Order of the Na-
829
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Caamano Bros.,
shall be posted by that employer immediately, upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Employer to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional- Director in wrifing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply -
clonal Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " , .