Holmes Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 376 (N.L.R.B. 1968)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holmes Foods, Inc. and Allied- Food Workers, Dis-
trict Union 103, affiliated with Amalgamated
Meat Cutters and =Butcher Workmen of North
America, AFL--CIO. Cases 23-CA-2411 and
23-RC-2686
March 15, 1968
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On June 15, 1'967, Trial Examiner Eugene E.
Dixon. issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found merit in the
objections by the Union to the election conducted
on June 3, 1966, in Case No. 23-RC-2686, but in
view of his recommended bargaining order he
dismissed the petition in that case. Thereafter, the
Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision and support-
ing 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are`
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by
Plant Superintendent Coleman's surveillance of
union organizers' visits to the homes of employees
and foreman Gay's interrogations of and threats to
employees Trigo and Franco. However, we do not
agree with the inference made by the Trial Ex-
aminer that the Respondent's grant of benefits to
employees when it paid production workers for
"waiting time" on one occasion during the organiza-
tional campaign was unlawful. Nor do we agree
with the Trial Examiner that the Respondent's
' Dal-Tex Optical Company, Inc., 137 NLRB 1782
grant of a loan to employee Saldana during the or-
ganizational campaign, a year after having refused
her request for a similar loan, violated Section
8(a)(1). Both the payment for waiting time and the
loan were trivial instances never thereafter re-
peated, and in the circumstances of this case we are
not satisfied that their purpose was to dissuade em-
ployees from their union activities.
The surveillance of the employees occurred on
only 1 day, more than 2 weeks, before the Union
filed the representation petition, and was not sub-
sequently repeated. Although we regard the two in-
stances of interrogation and threats as sufficient to
warrant setting aside the election,' and shall ac-
^mrdingly set aside the election, we do not regard
the unfair labor practices found as being of a suffi-
ciently flagrant nature to preclude an inference that
the Respondent's refusal to bargain with the Union
was based on a good-faith doubt of the Union's
majority but by a purpose to undermine such a
majority. Only two persons in a unit of approxi-
mately 135 employees were involved in the threats
and interrogations. Further, it appears that foreman
Gay, who committed the violations, was instructed
not to interrogate or threaten employees and acted
in disregard of these explicit instructions. As we
said in Hammond and Irving, Incorporated, 154
NLRB 1071, "While unfair labor practices com-
mitted at or about the time of an employer's refusal
to bargain often demonstrates the bad faith of the
respondent's position, not every act of misconduct
necessarily vitiates the respondent's good faith. For
there are some situations in which the violations of
the Act are not truly inconsistent with a good-faith
doubt that the union represents a majority of the
employees. Whether the conduct involved reflects
on the good faith of the employer, requires an
evaluation of the facts of each case." In the circum-
stances of this case we are unable to conclude that
the Respondent was motivated by a desire to evade
the principles of collective bargaining or by a desire
to gain time within which to undermine the Union.
For the foregoing reasons, we do not adopt the
Trial Examiner's finding that the Respondent vio-
lated Section 8(a)(5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and orders that the Respondent, Holmes
Foods, Inc., Gonzales, Texas, its officers, agents,
170 NLRB No. 49
HOLMES FOODS, INC. 377
successors, and assigns, shall _take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Delete paragraphs 1(a) and (e).
2. Delete paragraph 2(a) and the paragraph fol-
lowing 2(c).
,3. Delete the first, fifth, and seventh indented
paragraphs of the Notice to All Employees.
- IT IS FURTHER ORDERED that the election held on
June 3, 1966, be, and it hereby is, set aside.
[Direction of Second Election 2 omitted from
publication.]
, An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed by .the Respondent with the Regional Director
for Region 23 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director. The Regional Director shall
make the list available to all parties to the election . No extension of time to
file this list shall be granted by the Regional Director except in extraordi-
nary circumstances. Failure to comply with this request shall be grounds
for setting aside the election whenever proper objections are filed.
Excelsior Underwear, Inc., 156 NLR1 1236.
Upon the entire record and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material herein Respondent has been
a corporation duly organized under and existing by
virtue of the laws of the State of Texas, having its
principal office and place of business at Nixon,
Texas, where it is engaged in the business of poultry
processing and the sale of poultry. During the 12
months preceding the issuance of the complaint, a
representative period, Respondent in, the course
and conduct of -its business operations, purchased
products or materials valued in excess of $50,000
which were shipped directly to its Nixon plant from
points outside the State of Texas. At all times
material herein Respondent has been an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceed-
ing, ' brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136),
herein called the Act, was heard at Gonzales, Tex-
as, on March 7 and 8, 1967, pursuant to due notice
with all parties represented by counsel. The com-
plaint was issued on September 30, 1966, by the
Regional Director for Region 23 (Houston, Texas),
of the National Labor Relations Board on behalf of
its General Counsel, herein called the General
Counsel and the Board. The complaint was based
upon charges filed -and served on June 8, 1966,
which alleged that Respondent had engaged in un-
fair labor practices proscribed by Section 8(a)(1)
and (5) of the Act. The substance of the allegations
was that Respondent interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act by various
specified conduct and had refused to bargain with
the Union as the duly designated collective-bargain-
ing agent of its employees in violation of Section
8(a)(5) of the Act.
In its duly filed answer Respondent denied the
commission of any unfair labor practices.
In addition to the unfair labor practice matter,
the complaint hearing was consolidated with a
hearing on the matter of whether or not the em-
ployees had been afforded a fair and free choice in
a representation election which had been con-
ducted by the- Board on June 3, 1966, which the
Union lost and concerning which it filed timely ob-
jections.
II. THE LABOR ORGANIZATION
Allied Food Workers, District Union 103, af-
filiated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, at
all times material herein, has been a labor organiza-
tion-within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Union's campaign to organize Respondent's
employees began about the middle of March 1966.1
International Representative Harold L. Shapiro
designated four people from the local to do the ac-
tual work of contracting employees and getting
signed authorization cards from them. One of the
four so designated was Johnnie Molina of Spanish
extraction whose bilingual ability was of im-
portance since the majority of Respondent's em-
ployees were also of Spanish extraction and it was
the Union's intention for the most part to contact
them at their homes.
By April 6 the Union had secured authorization
cards from a majority of the employees and a de-
mand -was made for recognition which the Com-
pany decliaed insisting on an election. The Union
thereupon filed a representation petition (Case
23-RC-2686) which culminated in an election on
June 3. In the meantime both the Company and the
' All dates are in 1966 unless otherwise noted.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union engaged in the usual types of campaign ac-
tivity. The Union frequently handbilled the em-
ployees and Shapiro addressed four meetings of the
employees, the first one occurring on April 1 at
which about 100 employees attended. The Com-
pany also frequently circularized the employees and
they were addressed on several occasions by Plant
Manager Thomas C. Moore , the first time occur-
ring on May 10.
B. Interference, Restraint , and Coercion
1. Surveillance
Johnnie Molina testified that in the late after-
noon during the week of , March 20 while he and
two of the other organizers , in the company of two
employees,' had stopped to get gas at the Texaco
station in Nixon, Respondent's plant superinten-
dent , Hensley Coleman , drove into the station.
About this matter Molina testified as follows:
We stopped there to get some gas, at the
same time use the rest room , and Mr . Coleman
pulled up, and I don't recall if he got gas or
not, but I think he did . He stepped out of the
car and he kept looking toward us, and directly
he reached in his pocket , and he kept looking
at the car, and he got a pencil and paper, and
he [had] written something down , and I as-
sume[d ] he (had ) taken the license plate
number off of our car.
Porfirio Villarreal called by the General Counsel
testified only that Coleman "stopped in the station.
Then he went to the side of the rest room, he
looked over to our car, but he just went inside."
Manuel Trigo 's testimony , at the call of the General
Counsel , about Coleman 's presence at the Texaco
station was as follows:
He just drove by and stopped and put some
gas in his car , I guess , and I just saw him get
out of the car and start walking toward where
the rest room is, toward the rest room.
According to Molina 's further testimony, the
next time he saw Coleman was 2 or 3 days later
while he and the same group he had been with at
the Texaco station were in the process of calling on
employees at their homes . They pulled up to the
house of employee Mary Porter and stepped out of
the car as Coleman came up behind them and
drove on by . About this Molina testified further:
... after we visited this worker and started
out, he 'd [Coleman] always be behind us until
we made the next contact with the next
worker.
Every time we stopped at a worker's house
he'd always manage to be behind us.
According to Trigo 's testimony , he next saw
Coleman while he and Villarreal and the union men
were calling at Porter 's house . Coleman drove by
about two or three times but Trigo did not see him
anymore that day . Villarreal testified that on the
same day that they had seen Coleman in the Tex-
aco station , as they were just getting out of their car
at the house of employee Delfina Tamez , Coleman
drove by.
None of the other union representatives involved
in this matter of Coleman 's conduct testified. But it
was stipulated that if one of them , Stanley
Kohanek, was called as a witness he "would cor-
roborate Mr. Molina 's testimony regarding the or-
ganizational campaign ... among the Holmes Food
employees , and specifically , Mr. Hensley Coleman's
conduct that Mr. Molina testified to."
The evidence shows that Nixon is a small town of
no more than 2,000 population . And that the
majority of Respondent 's employees lived on the
south side of Nixon while Coleman lives on the
north side . According to Coleman 's testimony he
trades at the Texaco station in Nixon and is in there
two or three times a week. He also testified that he
makes business visits to all parts of Nixon since he
has employees who live in all parts as, for example,
a foreman who lives in one section and a
truckdriver who lives in another and he frequently
has to give them instructions at their homes. While
he was aware of the Union 's organizational effort in
late March and admitted frequently seeing people
in Nixon at that time whom he knew to be union
organizers , he denied conducting "any surveillance
of employee activities." On cross-examination he
denied seeing union people in a car as many as six
or eight times in any one day . Then the following
colloquy between him and the General Counsel oc-
curred:
Q. And if I told you that any number of peo-
ple say that they saw you and_ you saw them six
or eight times in a day, what would you say?
A. I'd say they was wrong.
Q. Because it never happened?
A. Well, I don't say that. I didn't see them
six times . I'm not going to say that they didn't
see me.
Although I would not find surveillance on the
foregoing evidence as to what took place at the
Texaco station , I believe that the General Counsel's
witnesses made a prima facie showing that Coleman
did in fact engage in surveillance of the -calls by the
union organizers at the homes of employees and
that Coleman's testimony failed to rebut such a
showing . I so find.
2. Interrogation and threats by Foreman Gay
Three witnesses testified as to various 8(a)(1) re-
marks made to them prior to the election by
Respondent 's Foreman John Gay. Manuel Trigo
2 Porfirio Villarreal , known as "Pilo ," and Manuel Trigo.
HOLMES FOODS, INC. 379
testified that sometime in April, in the plant, Gay
had asked him how he felt about the Union. Trigo
replied that he was for it. Gay then said that he had
seen "Pilo (Villarreal) hanging around with the
union men," and added that if "Pilo didn't do his
work right, if the Union came in , he would be the
first to be fired."
Villarreal testified that about May 10, in the
lunchroom during a break in the presence of em-
ployees Leroy Clemons and Trigo, Gay asked Vil-
larreal what the latter had been told at the
representation hearing which had been held in
Gonzales. Villarreal replied that he had been told
nothing. Gay then asked if he hadn't been told he
was "supposed to do the job right." When Villar-
real apparently protested that he did not have the
right equipment to do the work properly, Gay
claimed that he did and insisted that Villarreal did
not know how to do the work. Villarreal then
claimed that Gay had not shown him how and Gay
replied that "The only thing he was showing (Vil-
larreal) was the front door."
Josephine Franco, another employee, testified
about a conversation with Gay at the plant one
noon about 3 weeks before the election as follows:
He asked me if I was going to vote for the
union and I said yes. And he asked me why,
and I told him because we wanted to earn
more money and have a vacation. He told me
that they were going to fire some of us, and I
asked him why, and he said because we were in
that business. One of the boys that works
there, he said, was the first one that was going
to be fired.
Plant Manager Moore testified that he had been
advised by counsel "about talking to employees
about union activity" and had been warned to
make no threats or promises to them in that con-
nection. These instructions he had passed on to
Foreman Gay.*Howeyer, Gay did not testify and the
General Counsel's testimony regarding his com-
ments to them stand undenied on the record. I
credit the General Counsel's witnesses here.
On this evidence _I find that Gay illegally inter-
rogated both Trigo and Franco about their union
activities and sympathies and also voiced illegal
threats of discharge to them based on their support
of the union or its success in organizing the em-
ployees. However, I am unable to find any unfair
labor practices in connection with the conversation
between Villarreal and Gay as set forth above.
The complaint alleges payment for waiting time
as one of the 8(a)(1) items (and also one of the ob-
jections in the representation matter) that in order
to influence the employees to vote against the
Union, Respondent, contrary to its previous prac-
tice, paid employees while they were waiting the ar-
rival of chickens to be killed. About this -subject
employee Delfina Tamez testified that "about
March, 1966" (presumably before, the advent of
the Union), the employees were not paid, in the
morning for the time they might have to await the
arrival of chickens. But after the Union appeared
on the scene "there was a time" about 2 or 3 weeks
before the election that the employees were told to
punch in even though the chickens had not arrived
and were paid for idle time. This happened only
once and involved about a 2-hour wait.
To substantially the same effect was the direct
testimony of employee Josephine Franco. On cross-
examination, however, she testified that the occa-
sion in question involved a. long waiting period
"after lunch." She could remember only the one in-
cident. Juanita Saldana, another employee witness
called by the General Counsel, testified that this
type of thing had happened "about 2" times, the
first involving "some hours"; but she had no recol-
lections about the second occasion. Villarreal also
testified that the employees were told to punch in
and were paid for waiting time "about twice" be-
fore the election-once about a month before and
another time "about 2 weeks before that month."
According to Moore's testimony, it sometimes
happens the chickens are not on hand when the
employees report to work. However since late 1964
(when the Federal Wage-Hour Laws required it)
Respondent has paid line employees3 for the time
they have to wait for chickens. However, Moore
also explained that payments for such waiting time
involves matters of only, a few minutes and when
the chickens are going to be 2 or 3 hours late in ar-
riving the employees are "sent home "-i.e., not
paid.'
According to Moore's further testimony he re-
called one occasion in March or April (presumably
after the Union came on the scene) where they
started killing at 6 a.m. (the usual starting time) but
at 8 a.m. got a call from the truck that it would not
be in until about 10:45. About 9:45 or 10 a.m. the
line finished what chickens were on hand and the
employees were told to come back at 11 a.m. The
chickens did not arrive until 11:10 and presumably
the employees were paid for the 10 minutes tliey
had to wait from 11 O'clock. There were no other
such instances to his knowledge.
There is no real denial of the General Counsel's
evidence regarding this matter. Accordingly, I be-
lieve and find that on at least one occasion after the
Union made its appearance and before the election,
Respondent paid the line employees for a 2- or 3-
hour period while they were waiting for chickens.
That this was contrary to Respondent's practice be-
' These are the employees who kill and dress the chickens Packers and too But here too it involves only short periods of time-a matter of
shipping employees are not included with the line employees and are not so minutes . If a breakdown is for "any length of time " the employees are sent
paid home
4 Moore also testified that the employees are paid for breakdown time
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore the Union's advent (even under the wage-hour
requirements) is obvious from Moore's admission
that if a wait was to be more than a few minutes the
employees were sent home. On this evidence, and
the record as a whole, the inference I draw is that
Respondent's purpose here was to curry favor with
the employees by means of this payment and thus
to influence them to vote against the Union. Such
bestowal of an economic beneefit is of course a
violation of Section 8(a)(1) of the Act.
3. The change in loan policy
Juanita Saldana testified that about a year before
the union campaign she had needed $50 or $75 for
her child's hospitalization and asked Moore for a
loan for that purpose. Moore told her that he could
not loan money to employees-that it was against
company rules. Moreover,-he refused even to give
her and her husband (presumably also an em-
ployee) their checks a day early. Three or four days
prior to the representation election, according to
Saldana's further testimony, she asked Moore for a
$50 loan. Contrary to his previous attitude, he
agreed to make the loan telling her he would lend
her and her husband each $25 and he "didn't even
ask ... what [she] wanted it for."
Moore testified that prior to March, Respondent
had no definite policy on loans to employees but
that he did make such loans as a matter of in-
dividual Judggment. He confirmed making the $50
loan to Saldana testifying that she had asked for
$75 because she was behind, in her rent. On cross-
examination he admitted that Saldana had tried to
borrow from him for a sick,child a year or so before
the union campaign. He refused her the loan then,
he explained, because he did not feel that she
needed it. It seems to me that here, as with the pay-
ment for waiting time, the contrast in Moore's at-
titude and action regarding Saldana's attempts to
borrow money before and after the union campaign
justifies the inference that the loan was made as an
economic bribe to get Saldana to reject and vote
against the Union and I so find.
4. The absenteeism rule
The General Counsel contends that Respondent
"created a new absenteeism rule in retaliation for
the employees having supported the Union in viola-
tion of Section 8(a)(1) and Section 8(a)(5) of the
The card in question reads as follows:
AUTHORIZATION FOR REPRESENTATION UNDER THE
NATIONAL LABOR RELATIONS ACT
I hereby authorize the AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, to
represent meand bargain collectively with my employer in my behalf
and to / negotiate and conclude all agreements concerning wages,
hours, rand all other conditions of employment.
I hereby revoke and rescind any power and authority heretofore ex-
ecuted by me, and declare that this authorization supersedes any other
Act." About this matter Manuel Trigo testified that
the company rule about being absent from work
was that you are "supposed to send somebody in
your place , put somebody else in your place, or
take a doctor 's slip ." He was "not sure if the rule
was the same prior to March 1966 ; nevertheless, he
testified that such a notice had been posted prior to
that time . According to the testimony of Delfina
Tamez , the first - recollection she had of such a
requirement went back to just before the election
on June 3, 1966.
Plant Manager Moore testified that just after he
came to work in 1962 he initiated a rule that em-
ployees were expected to be at work or to supply a
"permissible" or "legal" excuse for being absent.
Such a rule was posted at that time on" the bulletin
board in the lunchroom . No change was made in'
the rule after the Union came in the picture, but on
July 12 (6 weeks after theUnion lost the election),
the rule was reposted with the explanation that this
was not a new rule. On the foregoing evidence, I
can see no violation of the Act.
5. Refusal to bargain
International Representative Shapiro testified
that prior to starting the campaign to organize
Respondent's employees, he explained to Molina
and the others he had designated for the job "what
the law required in the way of getting cards signed,
what they should tell the people." As -for the
specific instructions he gave the four, Shapiro
testified as follows:
I explained the nature of the card that we
were using, pointing out that because it was
our policy to request recognition- from an em-
ployer, and only request an election from the
Labor Board in the event recognition is
refused, that this card was designed for that
purpose, and that in the discussions with the
people about joining the union, this would be
told, should be told to the people.'
Received in evidence were 83 authorization
cards, all but 2 of which were signed by employees
prior to April 66 These cards were turned over to
Shapiro who, when he got them, made photostatic
copies of them. He then made an appointment to
see Plant Manager Moore. This he did on April 7
when he offered to show Moore the cards and
requested recognition as the collective-bargaining
agent of the employees. Moore refused to look at
which I may previously have given to any person or organization to
represent me for the purposes above set forth. This authorization shall
remain in full force and effect for one year from date hereof.
STREET AN D N O . . ............ ................ . .. ............ .
CITY AND STATE.. .. ... .. . ..
NAME OF EMPLOYER. . ..
JOB OR DEPARTMENT.........
SIGNATURE ......... ...... ...... .... ..... .............
' These two , signed by Leroy Ferguson and Silvestra Ferguson, were
signed on April 7
HOLMES FOODS, INC.
the cards and declined to recognize the Union.
Shapiro thereupon returned to his office and wrote
Respondent the following letter dated April 7:
Please be informed that our organization has
been authorized by a -majority of your em-
ployees to represent them as their collective
bargaining agent in all matters pertaining to
hours, wages and other conditions of employ-
ment.
in accordance with the provisions of the Na-
tional Labor Relations Act, we request a meet-
ing,with you at the earliest opportunity for the
purpose of negotiating an Agreement covering
the above matters. We are prepared to prove
to your satisfaction, at that time, that we do
legally represent the majority of your em-
ployees.
The unit for which we claim recognition
consists of all production and maintenance em-
ployees and truck drivers; excluding office and
clerical employees, guards, watchman and su-
pervisory employees as defined in the Act.
May we expect to hear from you soon as to a
date, when we can meet for the negotiation of
said Agreement?
On April 1 I Moore replied to the Union as follows:
We have received your letter of April 7,
1966 wherein you assert that a majority of our
employees -have designated your union as their
exclusive bargaining representative.
We are not aware of any such desire on the
part of our employees, and we doubt the validi-
ty of your claim. Moreover, we feel that the
question of the appropriate unit and those em-
ployees properly included in the unit are very
important matters and can best be resolved by
submission of your claim to the National Labor
Relations Board.
Therefore, we decline your expressed desire
to enter into collective bargaining- on the basis
of representation asserted in your letter.
On April 12, the Union filed an RC petition with
the Board which resulted in an agreed bargaining
unit of 132 employees' that differed only from the
' On April 14, apparently pursuant to-a request by the Regional Office,
Respondent sent the Regional Office a list of 135 employees presumably in
the bargaining unit
BN.L.R.B v. Fosdal, 367 F.2d784, 787, and cases there cited.
4 After the close of the hearing Respondent filed a motion to "correct or
amend" the transcript to change an answer made on cross-examination by
Plant Manager Moore . Moore had testified on direct examination that he
had written the Union on April 11 , rejecting its demand for recognition
because he doubted that the Union represented a majority of the em-
ployees. On cross-examination he testified*
Q Mr. Moore , I gather from what you have told us in direct
testimony here today, you didn 't have any reason to doubt the Union's
majority, did you?
A No, sir, l didn't.
Respondent 's motion sought to change the answer to "Yes, sir, I did" on
the grounds ( supported by his affidavit) that Moore had misunderstood the
General Counsel 's question I am inclined to believe that this probably was
the case . However, even if 1 were to grant the motion , it would not change
381
one described in the Union's letter _o€ April 7 in
that it now included leadmen. Clearly, this variation
from the unit that the Union claimed to represent
and for which it requested recognition was not sig-
nificant enough in itself to invalidate the Union's
April 7 demand for recognitions It is also clear that
at the time it made its demand the Union had
authorization cards from a majority of the em-
ployees.
Respondent defends its refusal to recognize the
Union on the grounds that (a) the authorization
cards were obtained by "misrepresentations" to
and by "exploitation of illiteracy" of some of the
employees; and (b) that in any event its refusal to
bargain was based on a good-faith -doubt -that the
Union in fact represented a maority of the em-
ployees. I reject both contentions.
6. The solicitation of cards
Respondent called some 18 employees most of
whom testified in substance that they were told
when they were asked to sign union authorization
cards that the reason for and the purpose of the
cards was to get an election and/or that the em-
ployees could vote either way they wanted to. On
cross -examination they all testified that' they were
also told that the Union would try to get them
better wages and working conditions and benefits
such as paid vacations, holidays, and the like. A few
also testified that they were told that the Union
wanted to represent them and would try to get the
Company to talk to the Union about the benefits
for the employees.10 Of these i8 witnesses, one
(Maria Arce) testified that she could not read
much English" and four testified that after they had
signed their cards they asked the union -representa-
tives to have them returned.t2
After the 18 witnesses had testified as shown
above, the following stipulation was entered into in-
volving 10 more card signers:.
That if the following named persons were
called by Respondent, their testimony on
my ultimate conclusion that the record here shows that Respondentdid not
have a good-faith doubt in this matter. Accordingly, I deny the motion.
'" One of these witnesses, Leroy Clemons , also testified that he had been
one of the employees "ho had gone around "quite a few times" with'the
union organizers to assist them in soliciting the employees at their homes.
According to Clemons, everywhere they went the organizers told the em-
ployees that "if they could get more than half the people signed up, they in-
tenaea to go to the Company and see if the Company would sit down and
talk about a contract .
." About 75 percent of the employees were of Spanish extraction.
Another witness called by the General Counsel, Juanita Saldana, also
testified about difficulty in reading English.
iS These four were Ramona Trigo who signed on March 22 , and who
testified it was about 2 weeks later that she asked to get her card back;
Horace Houston and Leroy Clemons, both of whom signed on March 21,
and testified that they had asked for their cards back about a month later,
and Pedro Pantaja who did not say how long after he had signed his card
that he tried to get it back.
382 DECISIONS OF NATIONAL
direct examination and cross-examination
would comport, proportionately, to the
testimony of the witnesses who were called by
Respondent on the morning of March 8, 1967.
[I.e., the 18 witnesses, supra.]
An interpreter was used in connection with the
testimony of four witnesses. Of these, two (Pantaja
and Antonio Arce) were called by the Respondent
and obviously needed the interpreter; the other two
(Josephine Franco and Juanita Saldana called by
the General Counsel), demonstrated their
knowledge of English by frequently not waiting for
the interpreter and by answering directly to the
question in English..As explained by Franco, she
understood English "very well" but had difficulty
speaking it.
Respondent concedes that the authorization
cards were unambiguous and thus "possessed some
Prima facie validity." Nevertheless, Respondent
contends that by reason of "the relatively high
degree of total or partial illiteracy and inability to
read, and sometimes even to speak the english lan-
guage which prevailed among many of Respon-
dent's employees," the cards should not be ac-
cepted "at their, face value" as would otherwise be
the case. N.L.R.B. v. Greenfield Components Cor-
poration, 317 F.2d 85 (C.A. 1). In any event,
Respondent contends that by reason of having been
told that the purpose of the cards was to get an
election, they were nullified notwithstanding that
the signers may have also testified "that the Union
representatives also discussed with them benefits
which the Union would ' obtain if it succeeded in its
organizational drive...." But such is not the law.
Where the authorization cards are unambiguous as
here, in order to invalidate them it would be neces-
sary to show that the signers were told that the only
purpose of the cards was to get an election. Bryant
Chucking Grinder Company, 160 NLRB 1526; Shel-
by Manufacturing Company, 155 NLRB 464. Such
was not the case here. Furthermore, I would not
find that this record reveals such a state of illiteracy
or inability to read or understand English that
would justify disregarding the foregoing rule. Nor
do I agree with Respondent's further contention
that what the organizers probably told the em-
ployees was not that it would try to get them better
wages, benefits, and working conditions, but (in ac-
cordance with some of the Union's literature) that
it actually would get them such things. Even if this
were the case I do not believe that this would be
grounds ;for invalidating the cards. Regardless how
uneducated or naive wage earners may be I am sure
that they are sophisticated enough to know that it is
13 Two of the General Counsel's witnesses also professed some deficien-
cy in English as already noted-Josephine Franco and Juanita Saldana.
However, there was no evidence to raise any question . about the reason
Franco signed her card and Saldana testified only that she was told that the
cards were for the purpose of organizing the employees so that they would
LABOR RELATIONS BOARD
the employer and not the union that pays the wages
and provides the benefits and that when a union
says what it will get for employees in this respect, it
is merely voicing a strong hope based upon the
strength that is derived from a unity of purpose and
approach. And this is no less true of these em-
ployees with their Spanish backgrounds than of any
others.
Accordingly, of the 18 witnesses called by
Respondent I would eliminate only the cards of
those employees who claimed or demonstrated a
lack of proficiency in English. These would be
three in number-Pedro Pantaja, Antonio Arce,
and Maria Arce.13 In accordance with the stipula-
tion that if 10 other named signers testified, their
testimony "would comport, proportionately" to
that of those already called, I would eliminate two
more cards.
I would also eliminate the cards of those wit-
nesses who testified that they sought to renounce
their union authorizations and get them 'back.
These would be three in number also-Ramona
Trigo, Horace Houston, and Leroy Clemons.14 And
I would eliminate three additional cards to comply
with the formula of the stipulation. Thus, I would
eliminate a total of 11 cards from the 83 received
in evidence leaving a total of 72 cards that I find to
have been valid authorizations. Clearly, this was a
majority of the employees in the bargaining unit
whether the unit contained 132 employees as
agreed upon at the representation hearing on May
5, or 135 employees as reflected by the Company's
letter of April 14 to the Regional Office.
7. The good-faith doubt
There is no question that an employer when con-
fronted with a demand by a union for recognition
can refuse such a demand and insist on an election
if he has a good-faith doubt that the Union
represents a majority of the employees. However,
where an employer makes such a claim and then as
here engages in unfair labor practices and interferes
with the conduct of the election, the inference is
fully justified that the refusal to recognize the
Union was not based on a good-faith doubt of
majority, but by a desire to gain time in which to
destroy the Union's majority status. Brandenburg
Telephone Company, 164 NLRB 825. I draw such
an inference here and find that from April 11,
1966, when Respondent refused to recognize the
Union it refused to bargain in violation of Section
8(a)(5) and (1) of the Act.
get better pay On this evidence there is no reason to delete these two
cards.
1; Pedro Pantaja is also in this group But I have already eliminated his
card on the basis of his language deficiency . I will count him, however, for
the purpose of making the computation to conform with the stipulation.
HOLMES FOODS, INC. 383
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(a)(1) and (5) of the Act, I shall recommend that
it cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the
policies of the Act, I shall recommend that Respon-
dent, upon request, be ordered to bargain with the
Union concerning rates of pay, wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody such un-
derstanding in a signed agreement.
The unfair labor practices committed by Respon-
dent involve conduct in derogation of the principles
of good-faith collective bargaining. The inference is
thus warranted that Respondent maintains an at-
titude of opposition to the purposes of the Act with
respect to the protection of employee rights in
general. Accordingly, I shall recommend that
Respondent be ordered to cease and desist from in-
fringing in any manner upon the rights guaranteed
in Section 7 of the Act. May Department Store dibla
Famous-Barr Company v. N.L.R.B., 326 U.S. 376;
Bethlehem Steel Company v, N.L.R.B., 120 F.2d
641 (C.A.D.C.).
It is clear that the violations of the Act found
herein are a sufficient basis upon which to set aside
the election results of June 3, 1966.15 However, in
view of my Recommended Order that Respondent
be required to bargain with the Union, I shall
recommend that the petition in Case 23-RC-2686
be dismissed and that the Board vacate all
proceedings therein. Shelby Manufacturing Com-
pany, 155 NLRB 464.
Upon the basis of the foregoing findings of fact
and the entire record in the case, I make the follow-
ing:
'CONCLUSIONS OF LAW
1. Holmes Foods, Inc., is and at all times mate-
rial herein has been an employer within the mean-
ing of Section 2(2) of the Act.
2. Allied Food Workers, District Union 103,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO , is, and at all times
15 Besides the allegation of that conduct as grounds to set aside the elec-
tion , the Union relied on several other objections concerning which
evidence was adduced at the hearing. Since additional findings in this con-
material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed by Section 7 of the Act, as found above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
4. By failing and refusing to bargain in good faith
with the Union as the representative of all our
production and maintenance employees including
truck drivers and leadmen but excluding office and
clerical employees, guards, watchmen, and super-
visors as defined in the Act, Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in this proceeding, I recommend that Respondent,
Holmes Foods, Inc., Nixon, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Allied
Food Workers, District. Union 103, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, as the exclusive representative
of all Respondent's production and maintenance
employees including truck drivers and leadmen but
excluding office and clerical employees, guards,
watchmen, and supervisors as defined in the Act.
(b) Illegally interrogating its employees about
their union activities, membership, or sympathies.
(c) Threatening its employees with discharge or
other reprisals because of their union support or its
success in organizing the employees.
(d) Engaging in surveillance of its employees'
union activities.
(e) Granting employees' benefits to discourage
union support or activities.
(f) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to bargain
collectively through representatives of their - own
choosing, or to engage in concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Al-
lied Food Workers, District Union 103, Amalga-
mated Meat Cutters and Butcher Workmen of
nection would have no affect on the recommendations regarding this
matter, I make no further findings in this respect.
384 DECISIONS OF NATIONAL
North America,AFL-CIO, as the exclusive
representative of Respondent's employees in the
appropriate unit and embody in a signed contract
any understanding reached.
(b) Post at its shop in Nixon, Texas, copies of
the attached notice marked "Appendix."ts Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23,
in writing, within 20 days from the receipt of this
Decision, what steps it has taken to comply
herewith."
I also recommend that the petition in Case
23-RC-2686 be dismissed and that all proceedings
in that case be vacated.
IT IS FURTHER RECOMMENDED that unless on or
before 20 days from the receipt of this Decision the
Respondent notifies the aforesaid Regional
Director, in writing, that it will comply with the
foregoing Recommended Order, the National
Labor Relations Board issue an order requiring it to
take such action.
'g In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
'r In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with the Allied Food Workers, District Union
103, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive bargaining representative of all our
LABOR RELATIONS BOARD
production and maintenance employees in-
cluding truck drivers and leadmen but exclud-
ing office and clerical employees , guards,
watchmen , and supervisors as defined in the
Act.
WE WILL NOT illegally interrogate our em-
ployees concerning their union activities.
WE WILL NOT threaten our employees with
discharge or other reprisals because of their
union support or its success in organizing our
employees.
WE WILL NOT engage in surveillance of our
employees' union activities.
WE WILL NOT grant our employees economic
benefits to discourage their union support or
activities.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of the right to self-organization, to
form , join, or assist the aforesaid Union or any
other labor organization , to bargain collective-
ly through representatives of their own choos-
ing, and to engage in other concerted activities
for the purpose of collective bargaining or
other mutual aid or protection , or to refrain
from any and all such activities.
WE WILL upon request meet and bargain col-
lectively with the Allied Food Workers, Dis-
trict Union 103, Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, as the exclusive bargaining
representative of all our employees in the
above -described appropriate bargaining unit,
concerning rates of pay, wages , hours of em-
ployment , and other terms and conditions of
employment , and, if an understanding is
reached , embody such understanding in a
signed agreement.
All of our employees are free to become, remain,
or refrain from becoming or remaining members of
the aforesaid Union or any other labor organiza-
tion.
HOLMES FOODS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
228-0611, Extension 4721.