Dairy Farm Flight Services

National Labor Relations Board - Board Decisions

Sep 21, 1981

258 N.L.R.B. 113 (N.L.R.B. 1981)

DAIRY FARM FLIGHT SERVICES
Dairy Farm Flight Services, Inc. and Operating En-
gineers Local Union No. 3. Cases 37-CA-1618
and 37-CA-1622
September 21, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 19, 1981, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Dairy Farm Flight Services, Inc., Agana, Guam,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute "Region 20" for "Region 37" in
paragraphs 2(a) and 2(b).
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
258 NLRB No. 31
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the
Act, in violation of Section 8(a)(l) of the Act,
by interrogating employees concerning their
union activity, threatening job loss if employ-
ees distribute union authorization cards within
our plant, threatening employees with job loss
if they support the Union, threatening employ-
ees with the loss of job privileges if the Union
is voted in, soliciting grievances from employ-
ees with an implied promise to solve their
problems, and creating the impression of sur-
veillance of employees' union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the Act.
DAIRY FARM FLIGHT SERVICES, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL. L. STEVENS, Administrative Law Judge: This
case was heard in Agana, Guam, on November 4 and 5,
1980.1 The charge in Case 37-CA-1618 was filed on
March 17 by Operating Engineers Local Union No. 3
(the Union). The charge in Case 37-CA-1622 was filed
by the Union on March 24. By order issued June 10 the
Regional Director for Region 20 of the National Labor
Relations Board consolidated said two cases for hearing.
The consolidated complaint,2 issued June 10, alleges that
Dairy Farm Flight Services, Inc. (Respondent), violated
Section 8(a)(1) of the National Labor Relations Act, as
amended (herein the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.3
All dates hereinafter are within 1980, unless stated to be otherwise.
2 Par. 6(a) of the complaint was amended at the hearing, with leave of
the Administrative Law Judge.
I The transcript of testimony required to be submitted to the Adminis-
trative Law Judge on or before November 15 was not submitted until
Continued
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from my observation of
the witnesses and their demeanor, I make the following:
FINI)INGS OF FACT
I. THE BUSINESS OF RESPONI)ENT
At all times material herein Respondent, a Guam cor-
poration with its principal place of business in Agana,
Guam, has been engaged in the business of sale of food
to airlines and other commercial users of food products.
During the past year Respondent, in the course and con-
duct of its business operations, purchased and received
goods, materials, and supplies in Guam valued in excess
of $50,000, directly from points located outside the terri-
tory of Guam and from points located within the various
States of the United States and received gross revenues
in excess of $500,000.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Operating Engineers Local Union No. 3 is, and at all
times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act. 4
1II. THE ALL.EGEI) UNFAIR LABOR PRACTICES
A. Backgrounds
Respondent contracts with various airlines and other
businesses and organizations to provide food and meals,
generally on a prepared or catered basis. Airlines are in-
cluded within Respondent's principal Guam customers,
and one of Respondent's principal activities is the prepa-
ration of meals and their delivery to aircraft for later
service to passengers and crews during flights. Such
preparation and delivery are on a regular basis, but
sometimes are on an emergency basis. In order to pro-
vide its services to customers, Respondent maintains a
plant facility wherein food is stored under refrigeration
and later cooked or prepared for placement on serving
trays. The business includes walk-in refrigerators, a
kitchen, a salad preparation area, a tray preparation area,
a centrally located office with glass on three sides from
which most of the work floor can be viewed, a loading
and unloading dock, and other facilities. At all times rel-
evant herein John West 6 was Respondent's vice presi-
dent and general manager, Henry Li was operations
manager, Ricardo Senato 7 was maintenance supervisor,
January 8, 1981. Submission of briefs and preparation of this Decision
were delayed partially because of the untimely receipt of the transcript of
testimony.
4 In its answer to the complaint, Respondent denies that the Union is a
labor organization. However, Respondent does not argue the matter in its
brief. This technical issue was settled in Case 37-RC-2530, involving the
parties that are engaged in the controversy herein. Respondent riled no
objections in said RC case, involving this issue. The matter thus is rev
judicata. Flair Moulded Plastics. Inc., 250 NLRB 202 (1980).
a This background summary is based on credited testimony, stipula-
tions of counsel, and evidence that is not in dispute.
* Individuals are referred to herein by their last names.
Spelled in the complaint as Senado.
Joey Villacorta was a supervisor and duty officer, and
Billy Pascua also was a supervisor and duty officer." At
times relevant herein Respondent had a total of approxi-
mately 145 employees, who worked on four shifts, from
8 a.m. to 4 p.m.; noon until 8 p.m.; 4 p.m. to midnight;
and midnight to 8 a.m. Employees were given breaks
during each shift, including a meal break of 30 minutes.9
Breaks were taken in an employee lunchroom, sometimes
referred to as the cafeteria.
Respondent is a member of the Guam Employers
Council (Council), and, in November or December 1979,
West received a notice of subscription renewal for the
Council. He asked E. L. Gibson, director of the Council,
to meet with him, and sometime in November or Decem-
ber the two met in West's office. They discussed the
Council's operations in order for West to ascertain
whether or not Respondent was getting its "money's
worth" for its membership. i During the course of the
meeting Gibson gave West one of the Council's standard
notices for employees, reading as follows:
There shall be no solicitation or distribution of lit-
erature on company property by non-employees.
Furthermore, there shall be no distribution of litera-
ture or solicitation of employees by other employ-
ees in areas open to the public during working or
non-working hours or when any employee involved
is on working time.
The following day West had the notices posted for read-
ing by employees in three places within the plant, 12
which were by the timeclock, in the cafeteria, and in the
salad room.
West heard rumors in January to the effect that the
Union was attempting to organize the plant. Thereafter,
West talked with several supervisors about the union ac-
tivity, and learned that Villacorta and Pascua actively
were involved in organizing employees. On March 3 and
4, for a total period of approximately 1 day, Respondent
posted a notice to employees' 3 at three places in the
plant, which were by the timeclock, in the cafeteria, and
in the salad room. The notice, which is discussed infra,
was seen and read by many employees, and is alleged by
the General Counsel to be in violation of Section 8(a)(l)
of the Act.
By an undated letter which apparently was written ap-
proximately March 5, Thomas Long, the Union's district
representative, advised Respondent of the Union's
claimed card majority and requested a negotiation ses-
s The supervisory status within the meaning of the Act of all these five
named individuals is not in dispute.
I Emergencies sometimes require interruption of break periods, which
later are resumed.
'° This is West's phrase. His testimony relative to this meeting with
Gibson is credited.
II This notice is not alleged, nor is it found, to he in violation of the
Act.
12 Villacorta testified that he "thought" he saw the posted notice
"something like February 1980," and employee Amelia Tenoyan testified
that she saw the posted notice "maybe" in February 1980. West and
Gibson were more certain in their testimony and more convincing in
their demeanor than Villacorta and Tenoyan. West and Gibson are cred-
ited.
" G.C. Exh. 3
114
DAIRY FARM FLIGHT SERVICES
sion. West immediately called Gibson on the telephone,
and West and Li went to Gibson's office later that day
for a conference. Mike McClure, a Council consultant,
also attended the conference. As a result of the meeting,
Respondent appointed the Council as its agent to act for
Respondent in all matters relating to the Union. West ad-
vised Gibson that he believed some supervisor may have
been involved with the Union, and Gibson said that was
improper. McClure placed a call to an off-island attorney
to discuss the matter. Gibson then gave West and Li de-
tailed instructions on what Respondent and its repre-
sentatives could and could not do concerning the Union
and its campaign. A letter was prepared and sent to the
Union, advising that the Council represented Respond-
ent. The following day, March 6, Gibson went to West's
office and an investigation of Respondent's records was
conducted to discuss several union-related matters and to
ascertain whether or not Respondent's supervisors were
supervisors within the meaning of the Act. On Saturday,
March 8, West and Li met separately with Villacorta
and Pascua, as discussed infra. After the meeting, Pascua
went to the union hall. West and Li met with the two
supervisors again on May 13, as discussed infra, and dis-
charged them on that date. Pascua again went to the
Union.
On May 16 Respondent posted at the plant for em-
ployees to read a notice that two supervisory employees
had been discharged for permitting, and participating in,
distribution in the plant of union authorization cards.
The discharges and other matters relating to the union
campaign were discussed in the notice. This matter is
discussed below.
On July 1, a preelection conference was held at Re-
spondent's premises. In attendance were West, Li,
Gibson, Ed Parnell of the Board, Long, Union Repre-
sentatives Frank Rivera and Joe Cruz, Villacorta,
Pascua, and a former employee of Respondent, Arnesto
Mercado, who, so far as the record shows, had been dis-
charged for legal cause. West asked Parnell what "the
rest of the people were doing there," and when Parnell
turned to Long, the latter replied, "[W]e are union repre-
sentatives, and the others are with Us."' 4 Parnell permit-
ted Villacorta and Pascua to remain, over West's objec-
tion. Respondent's employees saw Villacorta and Pascua
and others who attended the meeting. On July 10 West
wrote Parnell a strong letter of protest,' stating that, in
his view, Villacorta, Pascua, and Mercado should not
have been permitted to attend the meeting.
After the election, Respondent filed objections thereto.
Those objections are not involved in this case.
B. The Discharge of Villacorta and Pascua
Several basic and relevant facts are not in dispute or
clearly are established by the record. (1) Villacorta and
Pascua were, at times relevant herein, supervisors within
the meaning of the Act. (2) West never asked the two
supervisors to go to union meetings, to spy on employ-
ees, to refuse to sign union cards, or to campaign against
the Union. (3) Villacorta acknowledged that West told
'4 This is Long's testimony, which is credited on this poinl.
'l Resp. Exh. II.
him during the meetings of March 8 and 13 to tell the
truth, but that "I didn't tell him the truth. I didn't tell
some of it . . . because I was afraid that he might fire
me and also those people who signed." (4) Villacorta ac-
knowledged that "I passed out cards, union cards, be-
cause they asked me to get it for them." Villacorta later
testified that traysetter employees asked him to get union
cards for them, and that he obtained the cards from
Foremost Dairy employees. (5) Pascua testified that he
did not speak to any employees about the Union prior to
March 8, but that testimony differs from his pretrial affi-
davit signed April 10, wherein he stated, inter alia:
Before I was fired I was aware of a campaign at
Dairy Farms. The Operating Engineers were trying
to get people signed to cards and I signed a card for
the union. However I did not try to get any other
employees to sign cards. However I did speak to
some other employees about the union. These con-
versations took place before I was fired and after I
had signed my card. I told employees that I thought
the Union would be good, that it might help im-
prove our wages. I believe I talked to about six or
seven employees and made some favorable remarks
about the union to them. I did not give out union
cards to these people. I did not talk to anyone about
the union during working time. The conversations I
had took place after work and away from the com-
pany. ....
Senato testified that, as he once was walking past an
employee, Maria Caburian, who was working as a tray-
setter, asked him if he knew that union cards were being
distributed and that he replied "no." Senato said he
talked with employee Benjamin Duluena the following
day:
The next day I went and ask one of my boys,
which is Ben Duluena, if he signed a card.
Q. I see. And what did he say?
A. He said, "Yes."
Q. And did you ask him anything else?
A. I ask him who pass him the card, and he
didn't answer me right away. He paused. Then after
that I waited. He said, "It's Billy Pascua." And he
said Billy Pascua told him not to tell it to anybody.
On February 22 Senato wrote a memorandum to West:
Mr. John West,
One of my boys told me that he was given an
Operating Engineers Local Union #3 authorization
cards by Duty Officer Billy Pascua. He said Billy
asked him not to mention it to me. This took place
about 5:00 p.m. on Feb. 21, 1980. His name is Ben-
jamin Duluena.
Duluena, who testified prior to Senato, stated that the
conversation was in February or March and:
I told him that Billy told me if I want to join the
union, and I told him also what privilege they could
give us if I may join the union.
115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Okay. Is this what you told Billy?
A. Yeah.
Q. All right. Did you tell Ricky what Billy said?
A. No.
Q. Did Ricky ask you any more questions other
than the one question?
A. No more.
This incident is given little weight, so far as the two dis-
charges are concerned, for two reasons. First, as I stated
to counsel at the hearing, some of the Filipinos who tes-
tified had very limited familiarity with the English lan-
guage, and no interpreter was used. I felt, and stated,
that the testimony of the Filipinos sometimes appeared
unreliable because of language difficulties. The testimony
of Duluena was such an instance. Second, it is clear from
Pascua's pretrial affidavit, and from the record discussed
elsewhere herein, that Pascua actively was engaged in
the Union's organizational efforts prior to Pascua's dis-
charge. Even if Senato's version were accepted in its en-
tirety, it would add but little to the record, as far as Pas-
cua's discharge is concerned. However, a different issue
is presented, as far as Senato's interrogation of Duluena
is concerned. Senato freely acknowledged that he inter-
rogated Duluena, and that interrogation is buttressed by
Duluena's testimony, albeit in imperfect language. This
interrogation is a violation of Section 8(a)(l) of the
Act. 6
The versions of Villacorta and Pascua differ from
those of West and Li, as far as the interviews of March 8
and 13 are concerned. Villacorta testified relative to the
meeting of March 8 that West accused him of assisting
the Union in organizing, and asked Villacorta to tell him
"about the Union." Villacorta steadfastly denied taking
any part in the organization, and West insisted to the
contrary, stating that he knew otherwise. West repeated-
ly told Villacorta to tell the truth, and asked which em-
ployees signed union cards. Villacorta said he did not
know, but would find out. They agreed upon a subse-
quent meeting on March 10, which later was changed to
March 13. At the latter meeting West said he would give
Villacorta one last chance to tell the truth in order to
keep his job. West insisted that he knew Villacorta was
an organizer, and he wanted Villacorta to admit it in
order to keep his job. West made several disparaging re-
marks about the Union, and Villacorta continued to deny
any part in, or knowledge of, the organizing activities.
On cross-examination, Villacorta said West repeatedly
asked him who the union representative was, that Villa-
corta said had called him. Villacorta told West that he
told the representative he could not help the Union be-
cause he was part of management. West did not ask for a
list of employees who signed union cards, nor did he
threaten to fire employees who signed cards. West
became angry and fired Villacorta. The termination
letter? gives as the reason for discharge, "as one of our
16 Senato further acknowledged that, on the same day he talked with
Duluena, he interrogated employee Rudy Benitez about signing a union
card, and on the following day interrogated employee Antonio Orejudos
about signing a union card. Both interrogations are found to be violations
of Sec. 8(a)(1) of the Act.
17 G.C. Exh. 5.
supervisors, you failed to meet your responsibilities to
enforce our company policies, in particular those govern-
ing solicitation of our employees on working time, in
working areas."
Pascua testified that, at his meeting with West and Li
on March 8, he was asked about union cards being
"passed," and he replied that he knew nothing about it.
West told him, "If you tell the truth, tell who anybody
sign the card, you can still work here." Otherwise, he
would be discharged. West told him to think about the
matter, and to come back on March 10. That date later
was changed to March 13. After the meeting he went to
the union hall and filed a report reading in full as fol-
lows:
Mr. Henry Li, Operations manager of Dairy Farms,
Inc., called me into Mr. John West's office [vice
president] at 4:30 p.m. Mr. West asked me how long
I have been working for Dairy Farms, Inc. I told
him that I started working since 1972 up until now.
Then Mr. West said that I am the one who passed
out union cards to the employees, I answered that I
didn't know what he was talking about, and then
Mr. West said I am suspended starting today [Satur-
day] until Monday [March 10]. Mr. Li then told me
that he was going to replace me on that day, and he
took my time card and signed it. The above state-
ment is true and correct to the best of my knowl-
edge.
At the March 13 meeting, West wanted to know "who is
signing the cards and who is getting cards to employ-
ees." Pascua replied that he did not know. West said, "If
you don't tell the truth, you're terminated. Take this en-
velope and go." Pascua's discharge letter 8S is the same
as Villacorta's. Pascua testified that he did not sign a
union card, but that statement is contrary to his pretrial
affidavit.
West testified that, during the last half of January, Li
reported to him that, according to a story Li had heard,
a supervisor had given an employee a union card and
asked the employee not to tell anyone about it. West
called Pascua into the office and interrogated him about
Li's report. Pascua denied the story, and West asked the
name of the union official persuading Pascua to cam-
paign for the Union, and the reason Pascua was in-
volved. Pascua replied that he knew nothing about the
matter. West admonished Pascua, and asked for his coop-
eration. A few days later a cook supervisor, Felipe, re-
ported to West that some of the cooks told him that
Pascua and Villacorta were distributing union cards
during working hours. On March 8, West and Li talked
separately with Pascua and Villacorta. West again con-
fronted Pascua with his belief that Pascua was engaging
in union activity, and Pascua denied it. West told Pascua
to think seriously about the matter, since his job depend-
ed upon his telling the truth. West then suspended
Pascua from work. West told Pascua he only wanted to
know two things: why "this thing" is taking place, and
the name of the union official who was organizing
i' G C Exh 7.
116
DAIRY FARM FLIGHT SERVICES
through Pascua. Later that day the same sort of meeting
was held with Villacorta, who also denied any participa-
tion in union activity. West asked the same two questions
he asked Pascua, and gave Villacorta a warning. West
told Villacorta that he had substantial reason to suspect
that Villacorta was organizing for the Union. On March
12 a duty officer named Zeny Soriano came to West's
home in the evening, accompanied by Norma Estrada,
the chief accountant, and reported that Villacorta had
asked her during work hours to sign a union card. At
West's request for a written statement, Soriano stated in
writing:
March 12, 1980
Dear Mr. West,
I would like to report to you, that I was given a
union card by Joey Villacorta in around February
1980. And requested to fill it in which I did.
Soriano wrote the note in West's presence. On the fol-
lowing day, March 13, West met first with Villacorta,
then with Pascua. Li was in attendance at both meetings.
They again discussed West's suspicions about Villacorta
and Pascua engaging in union activities, and both denied
West's allegations. Villacorta denied giving a card to
Soriano, and asking her to sign it. West asked both su-
pervisors the same two questions as before, i.e., who the
union official was that was using them to organize, and
why. Both denied any complicity in the matter, and both
were discharged.
Li corroborated West's version of the meetings with
Pascua and Villacorta.
Discussion
The complaint alleges, and Respondent admits, that at
all times material herein Pascua and Villacorta were su-
pervisors within the meaning of the Act. 9
Absent special circumstances, a statutory supervisor
does not enjoy a protected right to engage in concerted
activity on behalf of a labor organization. 2 0 The fact that
Pascua and Villacorta actively engaged in such activity
clearly is shown by the record, as discussed supra.
No special circumstances were established to take
Pascua and Villacorta out of the general rule enunciated
above. One of the most common of such circumstances is
illustrated by cases wherein supervisors have been dis-
charged because they failed or refused to carry out
instructions of employers to violate the Section 7 rights
of employees.21 Here, Pascua and Villacorta acknowl-
Lg At the hearing, counsel for the General Counsel introduced his Exh.
14, which is a telegram allegedly showing that the status of Pascua and
Villacorta is on appeal. That matter is irrelevant, since the pleadings and
the hearing were based on the supervisory status of the two employees.
Their status as duty officers was not litigated, but the record clearly
shows that they were supervisors within the meaning of the Act. In any
event, the telegram leaves intact the determination of the Regional Direc-
tor that duty officers are supervisors. Only operations supervisors and as-
sistant operations supervisors were referred to the challenge procedure.
2o Boyer Bros., 170 NLRB 1108 (1968); Texas Gulf Sulphur Company,
163 NLRB 88 (1967) National Freight. Inc., 154 NLRB 621, 622 (1965).
a' See, e.g., Ozark Motor Lines. 164 NLRB 300 (1967); Talladega
Cotton Factory. Inc., 106 NLRB 295 (1953), enfd. 213 F.2d 208 (5th Cir.
edged that they had not been asked or instructed to spy
on employees or otherwise to interfere with, restrain, or
coerce employees in the exercise of their Section 7
rights. Villacorta expressly acknowledged that he lied to
West when the latter questioned him about his union ac-
tivity, and Pascua implicitly did the same.2 2 The ver-
sions of West and Li relative to the meetings of March 8
and 13 are credited. The only two things West asked
were the name of the union organizer involved in the im-
proper activities of Pascua and Villacorta, and the reason
for those activities. The answers to both questions were
within the personal knowledge of Pascua and Villacorta,
and the questions were reasonable and proper ones. West
was entitled to know who was behind the improper acts
and the reason therefore. Pascua and Villacorta owed
their loyalty to management, not to the Union, and cer-
tainly the two supervisors did not have to go to any em-
ployee for the answers West requested. Those were not
special circumstances that would extricate Pascua and
Villacorta from the situation in which they had placed
themselves. The fact that West was concerned about the
union activity of Pascua and Villacorta is shown, among
other things, by the credited testimony of West, Li, and
Gibson concerning the meeting of approximately March
5, discussed supra. At that meeting West learned of an-
other recent instance in Guam (Hilton Hotel) wherein a
problem allegedly had arisen because of supervisors en-
gaging in union activity. That information added to
West's concern about Pascua's and Villacorta's union ac-
tivity that he already had expressed.
Nor does Respondent's letter of May 1623 show spe-
cial circumstances for Pascua and Villacorta. The Gener-
al Counsel's witnesses said they knew that the letter re-
ferred to Pascua and Villacorta, but that fact carries no
weight. Regardless of what the letter states, discharge of
the two supervisors must be assessed as of the date of
discharge, which was March 13. It may be, as discussed
infra, that the letter of May 16 is in violation of Section
8(a)(1) of the Act, but that document is not controlling,
so far as the discharges are concerned. Further, any taint
resulting from the letter of May 16 was ameliorated by:
(I) the fact that the election was not held until July 2,
approximately 3-1/2 months after the discharges, and (2)
the letter itself, which makes it quite clear that the real
reason for the letter was to disavow the actions of
Pascua and Villacorta in engaging in union activity, and
to state that the balloting in the election would be secret.
The letter states, inter alia:
On March 8, 1980, I discharged two supervisory
employees of Dairy Farms because they failed to
enforce a company policy prohibiting the distribu-
tion of literature and solicitation of our employees.
The two duty officers had allowed-and partici-
pated in-distribution of union authorization cards
here in our plant.
1954): Inter-City Adverrising Company of Greensboro. . C.. Inc.. 89 NLRB
1103 (1950).
22 This fact is buttressed by Pascua's pretrial affidavit. quoted supra.
2 G.C. Exh. 6.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This kind of activity by supervisors is prohibited
by Federal Law because (1) employees may be led
to believe that the supervisor was acting for the em-
ployer and that the employer favors the union, and
(2) employees may be coerced out of fear of future
retaliation into supporting the union.
I want to let you know that I absolutely disavow
the actions of these two employees. I regret that
any of you may have accepted and signed union au-
thorization cards thinking that I wanted or expected
you to join the union.
All non-supervisory employees will be eligible to
vote in that election. It will be done by secret ballot
and no one will know how you vote.
The fact that Pascua and Villacorta were fired because
of their own union activity is shown by, inter alia, the
testimony of Tenoyan, who stated that "most" of the em-
ployees knew the letter referred to Pascua and Villacorta
and that, "according to them, they [referring to Pascua
and Villacorta] are passing card, union card," and were
discharged because of that activity.2 4
The General Counsel argued at the hearing that the
letter "states for all employees to see that because they
[Pascua and Villacorta] allowed this distribution of union
cards that that was one of the reasons they were fired."
The posted no-solicitation rule is a form distributed by
the Council, and patently is intended for use by business-
es open to the general public, such as grocery or retail
stores. Its use by Respondent was innocuous. The only
area in Respondent's facility that is open to the public is
the asphalt strip between the access road and the loading
docks. 25 The posted rule does not preclude solicitation
by employees in the employees' cafeteria and restrooms,
since those areas are not open to the public, and are not
work areas-they are used by employees on work
breaks. The rule is not alleged in the complaint to be in
violation of the Act, and the General Counsel stated at
the hearing that the rule would not be litigated.
The question then arises as to whether Respondent
had any effective rule prohibiting solicitation. The Gen-
eral Counsel argues that there was such a rule, and that
it was enforced in a disparate manner. Villacorta testified
that he and other employees frequently purchased vege-
tables and jewelry sold in the plant by employees during
work hours, both before and after the no-solicitation rule
was posted, and that funeral donations were solicited
from employees during work hours, although he did not
know of any death after the rule was posted. He also
said he sold raffle tickets to employees during work
hours after the rule was posted. Villacorta said he never
was disciplined because of those activities, and that he
did not know of any employee who was disciplined for
that reason. He said that the vegetables were purchased
from two supervisors who sold vegetables to Respond-
ent, "But if somebody wants to buy some little bit, then
you can buy it." In his pretrial affidavit Villacorta stated,
24 See also Pascua's report to the Union, quoted supra.
25 Resp. Exh. 3(a).
inter alia, that George Elayda (one of the supervisors)
"would also bring vegetables to the plant and sell them
to other employees during lunchtime." Tenoyan testified
to the same effect as Villacorta, but added clothing to
the items that were sold during work hours. She said she
never was disciplined for that activity. Delores Inven-
cion, a traysetter employee, testified that she sold jewel-
ry to employees, "most of the time when we are in our
dinner . . . when we are eating," but also during work-
time, and that she and other employees purchased vege-
tables from Elayda's wife, and clothing from other per-
sons, both during worktime and when not working. She
said she never was disciplined because of that activity.
West testified that he had no knowledge of Respondent
ever permitting the sale of vegetables to employees
during worktime in work areas. He said Avon products
and jewelry for years have been sold in the restrooms
and the cafeteria. West testified:
Q. What is the reason, if there is one, that you
don't permit that out in the kitchens and the work
areas?
A. Well, first it would stop production and work,
number one. It would be like a supermarket if I had
people wandering around selling clothing and vege-
tables and jewelry. It would be a supermarket, not a
production area. It would stop my work. And an-
other very important reason is the fact that we are
subject to lots of health inspections, et cetera. And
we have to be very careful of hygiene. Now I
cannot have people displaying clothes over food.
Just-I have a health inspector walk in, and he
would fire me on the spot.
West testified that collection of funeral donations long
has been a practice among the Filipino employees to pay
for transportation to the Philippines when a death has
occurred. He said that that is an exception to the no-so-
licitation rule. Elena Benitez, a traysetter at times rele-
vant herein but presently an acting supervisor, testified
that she has seen clothing, jewelry, and vegetables sold
in the women's restroom, but never any other place in
the plant. She said she has purchased jewelry from In-
vencion in the restroom, but not elsewhere. She said she
never has seen Invencion solicit sales or deliver jewelry
to employees on worktime. Kenneth Mesa, a trainee at
times relevant herein but recently made a duty officer,
testified that he was trained in all of Respondent's de-
partments, a "couple of weeks" in each department. He
said he never observed any employees selling vegetables,
jewelry, or clothing in any work area. Li testified that he
goes into the food preparation area each hour, and that
he never has seen any employee selling jewelry, mer-
chandise, cosmetics, or clothing to another employee.
Flavia Eay, a salad maker, testified that she has seen sell-
ing activity by employees in the restroom, but at no
other place.
As discussed above, Respondent's business is the prep-
aration of meals for private and governmental customers.
The food is refrigerated, cooked, placed on trays, and
prepared for transportation, all within the plant area.
The food is in the open much of the time, on tables, and
118
DAIRY FARM FLIGHT SERVICES
the necessity for cleanliness is obvious. If employees fre-
quently and freely handled clothing, jewelry, raw vege-
tables, and other items at the same time and in the same
place they were working with food, as Villacorta, Ten-
oyan, and Invencion testified, the most fundamental rules
of sanitation, and without doubt the regulations of the
health department of Guam, would be violated. Such an
unlikely state of affairs will not be inferred, or found,
without positive proof. The testimony of Li, Benitez,
Mesa, and Eay and the testimony and vigorous denial of
West, are credited on this issue. Villacorta's testimony
concerning the raffle tickets is given no credit. Solicita-
tion of funeral donations is a longstanding practice with
traditional implications, and, in any event, there is no
convincing evidence of such solicitation at times relevant
herein. Disparate treatment of union solicitations was not
shown.
However, the question as to whether or not Respond-
ent had a second no-solicitation rule still remains. The
testimony on this point is ambiguous. Frequent reference
is made in the record to such a rule, and the testimony of
West and Villacorta seems to assume such a rule's exist-
ence. Villacorta testified that he read the posted rule as
meaning, "[T]here shall be no solicitation during work
time in work areas." 2 6 There was testimony by the Gen-
eral Counsel's witnesses relative to the signing of union
authorization cards, but there is no testimony that West
told any supervisor, or that any supervisor told any em-
ployee, that soliciting was not allowed. So far as the
posted notice is concerned, only public areas were off
limits, and there was no public area any place within the
plant. If there were another rule, the testimony of Villa-
corta and West and the two discharge letters show it to
be a proper one-no soliciting on worktime, in work
areas. The two discharge letters state that the supervisors
were discharged for failing to prohibit solicitation of em-
ployees "on working time, in working areas." There is
no evidence that even that rule was enforced, or for that
matter promulgated, prior to May 16. The letter of May
16, addressed to Respondent's employees, states, inter
alia, that two duty officers were discharged because they
"allowed . .. and participated in . . . distribution of
cards here . .. .our plant." That statement does not alter
the finding that the two discharges were not in violation
of the Act, but it does have the effect of chilling union
activities of employees in violation of Section 8(a)(l) of
the Act. It may well be that West's choice of words was
unfortunate, since it is clear from the testimony of Ten-
oyan that employees understood the discharges were be-
cause Pascua and Villacorta personally were engaged in
union activity. However, it long has been established
that the test in assessing 8(a)(1) statement allegations is
an objective one, not subjective. The statement by West
that two supervisors were fired because they "allowed"
distribution of union cards in the plant implicitly threat-
ened employees with discharge if they distributed cards
any place within the plant, even though the posted rule
clearly does not preclude such distribution in break
areas. This statement of May 16 was not alleged in the
26 Such a rule would be a proper one. Essex International. Inc., 211
NLRB 749 (1974).
complaint as a violation of the Act, but the matter was
fully litigated, and an 8(a)(1) threat is found. "2 7
The discharges of Pascua and Villacorta did not vio-
late the Act. 28
C. Alleged Interrogations and Threats
Paragraph 6(a) of the complaint, as amended, alleges
that, at various times relevant herein, Senato interrogated
and threatened employees because of their union activi-
ties.
The fact of unlawful interrogations is found supra.
Tenoyan testified that she talked with Senato on
August 21 and that Senato gave her a list "against the
union." She said it was only a list of people with no
other writing on the paper. Senato told her to sign the
list "so that I will not lay off." She said she took the list
into the comfort room and signed it. Tenoyan later ex-
plained that she was number 26 on the list, and she heard
that "they used 59 persons so that the union is no more."
She said that was the only time she ever heard about a
layoff. Tenoyan testified on cross-examination that her
companion, Lilia San Nicholas, was the one who gave
her the list, although San Nicholas did not ask her to
sign it. West credibly testified at some length concerning
the loss of important customers and other matters relat-
ing to the loss of business and layoffs. Senato testified
that he did not have a petition when he talked with Ten-
oyan, and that the conversation was in Tagalog (a Filipi-
no dialect). Counsel stipulated that the statement by
Senato is translated, "Did you already sign the petition
that was going around?" Eay testified that she circulated
the petition, as did San Nicholas, and that no supervisor
engaged in such activity. The document was not intro-
duced into evidence, thus, its nature is uncertain. The
testimony relative to this matter is too uncertain to rely
on for any finding. Tenoyan's testimony concerning the
need for signatures was hearsay, and further, she said she
received the document from San Nicholas. In view of
the record showing Respondent's considerable concern
with the loss of business and possible layoffs, Tenoyan's
testimony on the subject of layoff appeared unrealistic.
In view of such an unreliable record on this point, Ten-
oyan's testimony concerning it is given no weight.
Invencion testified that she talked with Senato in
March:
THE WITNESS: Well, when I was working like
that he approached me, and then he asked me, "Did
you sign anything or a paper or card pertaining to
union?" He asked me like that. And I answered
him, "Yes." He said, "How come? What do you
27 At the hearing, the General Counsel moved to amend the complaint
to allege a violation of the Act relative to this matter. The motion was
denied by the Administrative Law Judge However. Respondent thereaf-
ter went forward in its defense with a full attack against all allegations of
the complaint, and completed the record to provide full assessment of the
notice of May 16. Matters brought out both by the General Counsel and
by Respondent are discussed in detail, supra. For these reasons the matter
has been fully considered, and a violation of the Act is found.
2R Bowling Corporation of America. Inc. d/bh/a .Algonquin Bowling
Center, Inc:. etc., 170 NLRB 1768 1968), Great Lakes Towing Comparny.
168 NLRB 695 (1967), lexa Gulf Sulphur Co.. supru.
119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to do to the company? Why do you still need
union in this company? We are paid enough, and
we are also eating our free lunch and everything we
can eat. What do you want? Why do you want . . .
a union?" That's what he said, and then he get
away.
Invencion testified that she talked again with Senato in
July, several days after the election:
Yes. He told us that "if you sign 'yes' in the
union" -or I mean, "the election, all of you who
said 'yes' must be fired, must be fired out. And then
you lose your job." And he even said that they will
close the company because they want to- "if the
union will win the election, they will close the com-
pany and they will tell that the company is losing,
and then they will rehire another people because
you people are in favor of union." That's what he
told us.
Senato denied ever asking Invencion if she had signed a
union card, and he testified relative to a conversation
with Invencion:
Well, I remember telling them that if the union
wins and the company cannot keep up with the ex-
penses, the company might close and we might lose
our job. That's what I told them.
Invencion is credited on this issue. She partially is sup-
ported by Senato's testimony, although their testimony
differs substantially. It is found that Senato interrogated
and threatened Invencion and other employees who
were present at the conversation, concerning their union
activities and their jobs, 2 9 in violation of Section 8(a)(l)
of the Act.
D. Alleged Threat, Solicitation of Grievances, and
Creation of Impression of Surveillance
Paragraph 6(b) of the complaint alleges that West's
notice to employees dated March 330 contains the al-
leged violations of the Act.
1. The following statements are contained in the
notice:
Dairy Farm has never paid below the basic wage
and many of you receive above it. You also have
good working conditions such as a free meal, you
are not stopped pay for meal times, as many cups of
tea or coffee as you want and the blind eye that we
turn when you eat a roll or bun with it.
If you turn this into a union shop these little
privileges might have to disappear as we will have
to apply rules also.
The statements are not an explicit threat, but impliedly
they threaten that privileges would be in danger if Re-
spondent was turned into a "union shop." The statements
2g Gibson, West, Li, and Senato testified that, on many occasions,
Gibson advised and cautioned all supervisors about threatening, interro-
gating, making promises, or engaging in surveillance of employees, rela-
tive to union activity. That testimony is credited, and has been given con-
sideration when making findings and conclusions.
30 G.C. Exh. 3
constitute a threat to employees, in violation of Section
8(a)(l) of the Act.
2. The notice states:
Why not talk with us first? If you have a job
problem, lets solve it together. For our older staff
members, who kept you in a job for five years
while we were losing money, Dairy Farm or the
Union? Do not commit yourself without first dis-
cussing it with us. I will be pleased to answer your
questions at any time.
West testified that Respondent has had a suggestion box
available to employees for a couple of years, but that tes-
timony is given no weight so far as this allegation is con-
cerned.
The notice was posted in the midst of the Union's
campaign, and the statements quoted above clearly con-
stitute solicitation of employees to air their grievances,
with an implied promise by Respondent to settle them.
Such a solicitation violates Section 8(a)(1) of the Act.
3. The notice states:
I know that some discontended members of our
staff have given you union membership application
cards to sign, by their mistake, cards were given to
Henry & Viktor and that some of you have signed
them.
The notice tells employees that Respondent is aware
of their having signed cards. Such a statement is a patent
violation of Section 8(a)(l) of the Act. The impression of
surveillance of employees' union activity is bold and
clear.3 1
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section 111,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, it will be recommended that it be ordered to
cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
It is recommended that all allegations of the complaint
not having been found herein to have been proved be
dismissed.
:' Villacorta testified on rebuttal that, after his discharge, West implied
that he would rehire him. West denied that testimony. This matter has
been considered and is given no weight.
There was testimony by Li and Mesa relative to a form given to Liby
Gibson, relating to union sympathies of employees That apparently was
a management form, and the matter was not fully litigated. This testimo-
ny is given no weight.
120
DAIRY FARM FLIGHT SERVICES
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Dairy Farms Flight Services, Inc., is, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Operating Engineers Local Union No. 3 is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
interrogating employees concerning their union activity;
threatening job loss if employees distributed union au-
thorization cards within Respondent's plant; threatening
employees with job loss if they supported the Union;
threatening employees with the loss of job privileges if
the Union were voted in; soliciting grievances from em-
ployees, with an implied promise to solve their problems;
and creating the impression of surveillance of employees'
union activity.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER3 2
The Respondent, Dairy Farms Flight Services, Inc.,
Agana, Guam, its officers, agents, successors, and as-
signs, shall:
32 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
1. Cease and desist from:
(a) Interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act, by interrogating employees concerning their union
activity; threatening job loss if employees distributed
union authorization cards within Respondent's plant;
threatening employees with job loss if they supported the
Union; threatening employees with the loss of job privi-
leges if the Union were voted in; soliciting grievances
from employees with an implied promise to solve their
problems; and creating the impression of surveillance of
employees' union activity.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Post at its Agana, Guam, facility copies of the at-
tached notice marked "Appendix." 3 3 Copies of said
notice, on forms provided by the Regional Director for
Region 37, after being duly signed by its authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees customarily are
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 37, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
become its findings. conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
aa In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
121