Pacific Coast International Meat Co.

National Labor Relations Board - Board Decisions

Apr 24, 1980

248 N.L.R.B. 1376 (N.L.R.B. 1980)

1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Coast International Meat Co. and Imelda
Del Castillo. Case 21-CA-17570
April 24, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO,
AND TRUESDALE
On December 4, 1979, Administrative Law
Judge Leonard N. Cohen issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
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.
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 and
hereby orders that the Respondent, Pacific Coast
International Meat Co., Vernon, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, 2
except that the attached notice is substituted for
that of the Administrative Law Judge.3
l Respondent 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 respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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 reversing his findings.
Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
2 Member Jenkins would leave to the compliance stage of this pro-
ceeding the issue of whether and when a valid offer of reinstatement was
made.
3 The Administrative Law Judge inadvertently failed to conform his
notice to his recommended Order.
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,
248 NLRB No. 183
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 discharge any of our employ-
ees for engaging in protected concerted activi-
ties.
WE WILL NOT coercively interrogate our
employees concerning their protected concert-
ed activities.
WE WILL NOT threaten our employees with
reprisals, including discharge, for engaging in
protected concerted activities.
WE WILL NOT impose more onerous work-
ing conditions on our employees for engaging
in protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Imelda Del Castillo immedi-
ate and full reinstatement to her former job, or
if that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and
WE WILL make her whole for any loss of
earnings she may have suffered by reason of
our discrimination against her, with interest.
PACIFIC COAST INTERNATIONAL
MEAT Co.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was heard before me in Los Angeles, California,
on July 5 and 6, 1979.' On March 28, the Acting Re-
gional Director for Region 21 of the National Labor Re-
lations Board issued a complaint and notice of hearing
based upon unfair labor practice charges filed on Febru-
ary 26, alleging certain violations of Section 8(a)(l) of
the National Labor Relations Act, as amended, herein
called the Act.
Issues
1. Whether Respondent, in and around the middle of
February, through its supervisors and agents, Melvin
Futterman, Fernando Dominguez, and Roland Wood, in-
terrogated its employees regarding their protected con-
certed activities and threatened said employees with dis-
charge and other forms of reprisals because they had en-
gaged in protected concerted activities.
2. Whether Respondent, on or about February 20,
through its supervisor and agent Fernando Dominguez,
assigned its employee Imelda Del Castillo to more ardu-
ous and less desirable job tasks and, on or about Febru-
' Unless otherwise stated, all dates occurred in 1979.
PACIFIC COAST INTERNATIONAL MEAT CO. 1377
ary 23, discharged Del Castillo because of her protected
concerted activities.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Coun-
sel for both parties filed briefs which have been carefully
considered.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that at all times materi-
al, it has been a California corporation with an office and
principal place of business in Vernon, California, where
it is engaged in the business of processing meat. In the
normal course and conduct of its business operations, Re-
spondent purchases and receives goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. Accordingly, I find
that at all times material herein, Respondent has been an
employer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory Status of Fernando Dominguez
While Respondent admits the supervisory status of
Melvin Futterman, its plant manager, it denies that Fer-
nando Dominguez possesses the indicia of supervisory
authority set forth in Section 2(11) of the Act. Respon-
dent employs approximately 20 to 25 production employ-
ees at its Vernon, California, facility in its two main de-
partment-the boning department and the steak cutting
and wrapping department. This latter department is
physically separated into two rooms with approximately
seven or eight female employees employed as steak
wrapping laborers. Additionally, there is a shipping and
receiving department which employs approximately two
employees.
According to Futterman, there are four individuals
who have more authority than the other employees.
They are: Roland Wood, who is responsible for the ship-
ping and receiving department; Tim Thomas, who is re-
sponsible for the boning department; and George Jurado
and Fernando Dominguez, who are responsible, respec-
tively, for the steak cutting and steak wrapping subde-
partments. 2 Futterman testified that while Thomas,
Jurado, and Dominguez (herein referred to as foreman)
all possessed the identical authority and responsibilities
within their respective departments, Wood possessed
slightly more authority than the others in that he was
left in charge when Futterman was out of the office.
The foremen are responsible for maintaining a constant
flow of work through their departments. In this regard,
the foremen assign specific tasks to the employees within
their areas of responsibility and transfer employees from
'Dominguez is listed on Respondent's personnel records as the quality
controller. The record is silent as to the specific job titles of Wood, Jurado,
and Thomas.
one job to another as required. The foremen have no re-
sponsibility or authority over any employees outside
their department. While the record is not specific, it ap-
pears that Futterman's presence in the production areas
is limited in time and on an irregular basis. The four
foremen attend production meetings not attended by
rank-and-file employees, are responsible for maintaining
production records and spend the overwhelming major-
ity of their time in instructing and observing the respec-
tive production employees. While the need for overtime
is determined directly by Futterman, Dominguez, like
other foremen, informs his employees that they will be
required to work overtime and initials their timecards.
Additionally, Dominguez and Wood interview job appli-
cants and make recommendations to Futterman which
are apparently independently reviewed.
Dominguez, like Thomas and Jurado, is paid a special
straight-time pay rate and receives a special overtime
rate and a small weekly bonus which together amount to
an overall pay rate of at least 50 percent more than that
received by the rank-and-file employees.3 Moreover, the
foremen all enjoy certain fringe benefit items such as life
and health insurance coverage which are not available to
rank-and-file employees. 4
In addition to the above, it is undisputed that Respon-
dent, both through Futterman as well as through Domin-
guez himself, held out Dominguez to the steak wrapping
employees as their direct supervisor with the authority
to tell them what to do. 5
Therefore, in view of the above, and the entire record
as a whole, I find that Fernando Dominguez and Roland
Wood are supervisors within the meaning of Section
2(11) of the Act and concomitantly are agents of Re-
spondent within the meaning of Section 2(13) of the Act.
Formco, Inc., 245 NLRB No. 16 (1979); see also Essex
Wire Corporation, 188 NLRB 397, 403 (1971). 6
B. Facts
Imelda Del Castillo was hired in September 1977 as a
laborer in the steak wrapping deaprtment under the
direct supervision of Fernando Dominguez and remained
employed in that job until her discharge on February 23.
As a laborer in the steak wrapping department, Del Cas-
tillo performed various functions including operating the
meat tenderizer needle machine, wrapping steaks, mark-
a While Wood does not receive the special rates and bonus, his starting
wage rate is in excess of 50 percent higher than that received by the
rank-and-file employees.
I Other than the four foremen, the only other individuals receiving
similar benefits are Futterman himself and an individual named Joseph
Johnson, identified only as an employee in the shipping department.
s See the testimony relating to Futterman's remarks to the steak wrap-
ping employees during the meeting of February 22, infra.
^ On April 28, 1978, an election among Respondent's production em-
ployees was held in Cases 21-RC-15427 and 21-RC-15448. During the
course of the election, the ballots of Wood and Dominguez, as well as
Jurado and Thomas, were challenged by the Petitioner, Butchers Union
Local 563, on the grounds that they were supervisors within the meaning
of the Act. Their ballots were not sufficient in number to affect the re-
sults of the election and on June 28, 1978, the Board certified the Butch-
ers Union Local 563 as the collective-bargaining agent of Respsndent's
production employees. While the record is far from clear on this point. it
appears that Respondent and Local 563 ere at the time of the hearing
engaged in contract negotiations
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing boxes, and loading the wrapped steaks onto a flat
truck, and assisting in pushing the loaded flat truck to
the freezer as well as in helping unloading of a flat truck.
In the spring of 1978, Dominguez gave her additional
duties which included instructing the new employees in
Respondent's production methods and preparing at the
end of each day the daily production records. Addition-
ally, on the frequent occasions that Dominguez was
away from the department in another area of the plant
he would leave instructions with her as to what work
was to be performed and she would in turn pass these
instructions along to the approximately seven other
female laborers in the department.
On the morning of either February 19 or 20,7 Del Cas-
tillo and Quinones went to the front office and asked
Wood if Futterman was in. When Wood informed them
that Futterman was out until approximately I p.m., Del
Castillo advised Wood that the employees in the steak
wrapping department wanted to talk to Futterman.8
Upon leaving Wood's office, they observed Dominguez
in the area of the front office.
At approximately I p.m., all the women from the de-
partment went to Futterman's office. After being ushered
into his office, Futterman asked what the problem was.
At this point, both Quinones and Aguilar, in Spanish,
complained that Dominguez was showing favoritism
among the employees and was putting too much pressure
on certain employees.9 Additionally, the complaint was
voiced by one of the employees that Dominguez was
lUnless otherwise indicated, the underlying facts concernilig the
events of February are based on the estimrny of the Charging Party arid
employees asilisa Quinones Consuelo I.oayza, Alfa Gutierrez, Ramona
Aguilar, and Margarita Mendoza. With the sole exception of which em-
ployee was responsible for organizing the initial meeting (of the employ-
ees with Futterman, the testimony of the employee witnesses called by
both the General Counsel and Respondent are basically consistent Del
Castillo, Quinones, and Loayza all testified at greater length and in more
detail than the others and generally appeared to possess tlie better nlillo-
ries Moreover, each impressed mtie as honestly attempting to accurately
recall venlts and co vcrsalions 1B war of conltrast, the testimonly of
both uttelnan and )ominguez the onlly supervisors called to testify by
Respondent, was uncertain, uncorroborated, and confused arid each ap
peared to possess a selective menmory with regard to key conversatiols.
Specific examples of their inconsistent and confused testimony will be re-
ferred to and discussed infra
D uring either the week of February 12 or. Monday or Tuesday. Feb-
ruary 19 or 2t), the female laborers in the steak wrapping department de-
cided among themselses to ask for a ileeting with Futterman to complain
that although they all earned the same wage rate, some employees were
required to work harder than others. Aguilar testified that Del Castillo
itfornmied her thali the employees felt that a meeting with Futternian was
necessary ad that she merely agreed to go along as a participant. Agui-
lar's testimon y is somewhat corroborated by her subsequent actions dis-
cussed below, as ell as by the testimony of Mendoza and Gutierrez who
testified that they were also tIold of the meeting directly by Del Castillo
Del Castillo, ()uinones. and I.oayza all testified that Aguilar was the em
ployee who initially brought up the idea and, according to Quinones, the
women had gotten together at lunch one day the prior week and agreed
that it was Inecessary to go to Futterman to make their protest In view
of the undisputed tesmony that utterman was informed and believed
that Del Castillo 'was respotnsible for organizing the meeting, I d rot
need to resolve the question of who was the moving frce in calling fior
the initial meeting with Futterman
9 The majority of the female employees, specifically including Del
Castillo, Quinonles, aid Aguilar, apparently believed that )Dominguez
spent an inordinate amount of time arid patience with employee Margar-
ita Mendoza whose work, they believed, as of less quality and quantity
than the others. hey viewed this as unfair treatment by Dominguez
since all the employees received identical wage rates.
always threatening to fire the employees. Since Del Cas-
tillo spoke slightly better English than did most of the
other employees, she acted as an interpreter for her co-
workers. 0o
Futterman answered that while he did not believe Do-
minguez was serious when he talked about firing em-
ployees, they, the employees, had to remember that Do-
minguez was their boss and they had to do whatever he
said. Futterman ended the meeting by stating that he
would talk to Dominguez. As the women were leaving
Futterman's office, Dominguez walked through the door
and observed them.
According to Dominguez, Futterman, after this meet-
ing, informed him that the women had accused him of
playing favorites and that he, Futterman, wanted it
stopped. Dominguez immediately left the office, ap-
proached Del Castillo at her work station, and stated
that he could not believe she would have gone to the
office to complain about him. When Del Castillo an-
swered that she had said nothing about him at the meet-
ing, Dominguez answered, "From now on, you will do
what I want you to do, when I want you to do it, and
you will have to say, yes, yes, yes to everything I say."
Dominguez then closed the conversation by stating that
if he told her to jump, she was not to ask him why but
merely how high. 2
That evening, Dominguez telephoned Del Castillo at
home and asked what she had said at the meeting about
him. She again answered that she had only translated
into English what the other employees had said. Addi-
tionally, Del Castillo testified that Dominguez stated that
he had asked her during this conversation what problem
she made for him with the Labor Board.3
On the following morning, Dominguez instructed Del
Castillo to mark boxes of steaks, load them onto the flat
"' While there is some confusion among the employees' testimony con-
cernillg exactly which employees said what during this meeting, most of
the confusion was caused by the language problems in that Futterman
speaks no Spanish arid the majority of the meeting was conducted in both
languages.
Futiternlaln recalled his first meeting with the women from the steak
wrapping department but, contrary to all the credible testimony of the
employee witnesses, placed this meeting as having occurred during the
prior week Futterman also incorrectly recalled that he, rather than the
women, called for this meeting. Futterman did not dispute the employees'
version of what actually took place during this meeting.
" Dominguez admits confronting Del Castillo on this occasion and
testified that he told her, "You really did it this time, from now on you're
on your own, and anything happens here. I ain't going to cover for
nobody." At the hearing, Dominguez explained that he had tried to keep
all gossip out of the front office and that the employees had made some-
thing out of nothing I credit l)el Castillo's version as the more probable
of the two
" Clearly, Del Castillo's recollection is faulty regarding any reference
at this time II the Labor Board since no charge had been filed prior to
her discharge I do not view this mistake in her testimony as discrediting
the remaining testitiony of the conversation and events which is corrobo-
tated, conlsisteit. and inherently probable. The crediting of only portions
of Del Castillo's testimony i this regard and later is required under the
circumstances of this case. Carolina Canner Inc.. 213 NLRB 37 (1974),
"Nothing is miore common than to believe some and not all of what a
witness says"; Edwards Transportation Company, 187 NLRB 3, 4 (1970),
enfd 437 2d 502 (5th Cir 1971) Dominguez did not deny having a
telephonre clversalion with [)el Castllo on the evening of Futterman's
first meeting with the women employees
PACIFIC COAST INTERNATIONAL MEAT CO. 1379
truck, and push the flat truck to the freezer. 14 While Del
Castillo had done this type of work when she first start-
ed with Respondent, she had not been required to weigh
and push a flat truck since her first months of employ-
ment. Moreover, normally two employees were utilized
in pushing the loaded flat truck to the freezer. Addition-
ally, that same day, Del Castillo was ordered by Domin-
guez to perform the difficult task of rewrapping frozen
steaks. Like the job of pushing the loaded flat truck, this
task was normally performed by at least two employees.
In addition, Del Castillo was not permitted to make out
the daily production sheet subsequent to the first meeting
with Futterman.
Later that same morning while Del Castillo was rew-
rapping the frozen meat, George Jurado, the foreman in
the steak cutting department, walked by. She stopped
Jurado and asked him to speak to Dominguez regarding
the buying of steaks for personal use. At or about this
point, Dominguez came into the hallway, apparently
heard his name mentioned, and stated to Del Castillo
that she worked in his department and if she had a prob-
lem, she was to tell him and no one else. Dominguez
then stated that she wanted to go home. When Del Cas-
tillo answered that she did not wish to go home, he in-
structed her to accompany him to the office to see how
easy it was for him to fire a person.
Del Castillo and Dominguez, accompanied by Jurado,
then went to the office and met with Wood. After they
entered the office, Dominguez informed Wood that he
wanted Del Castillo fired. When Wood asked why, Do-
minguez replied that Del Castillo knew how to do every-
thing but that on that particular day she was waiting for
him to push her. Del Castillo then replied that she was
doing as told. Dominguez, at this point, stated that when
he got rid of her and three others, the rest would come
in line. Dominguez stated that he did not want her to
stay since she was not for the business. Wood then added
that the Company had many problems but they would
have to wait until Futterman returned to the plant. Del
Castillo was then ordered to return to work.' 5
While the record is somewhat muddied as to the exact
sequence of the fast moving events of the week of Feb-
1 A fully loaded flat truck would weigh approximately 50 pounds.
5 Del Castillo testified regarding this meeting on two separate occa-
sions during the hearing as part of General Counsel's case-in-chief, as
well as during rebuttal. Dominguez' reference to the discharge of
"others" was not mentioned during her initial testimony. I do not view
her failure to initially mention this statement as any more than a tempo-
rary memory lapse and her versions read together are fully credited. Do-
minguez' testimony regarding this conversation was limited to the follow-
ing exchange:
Question by Mr. Russo: Fernando, you heard the question that
was asked by counsel of Imelda about the remark that you were sup-
posed to have made about firing three to four other persons. Is that
correct?
Answer: That's correct.
Question: Did you make that statement?
Answer: No.
Neither Wood nor Jurado, who are both currently employed by Re-
spondent, was called as a witness and Respondent failed to explain why
they did not testify at the hearing I infer that their evidence would have
been unfavorable to Respondent if they had testified. Martin Luther King
Sr. Nursing Center, 231 NLRB 15, fn. 1 (1977).
ruary 19,16 on either the same day, Tuesday, February
20, or more probably on the following day, Wednesday,
February 21, Futterman had separate meetings with em-
ployees Aguilar and Del Castillo.
At the first of these meetings, Aguilar was called into
Futterman's office where she was questioned by Futter-
man in the presence of Wood.'7 Futterman opened the
discussion by first accusing her of organizing the em-
ployees' meeting and asking if she were glad she had
done it. When Aguilar denied she had been the one re-
sponsible, Futterman stated that he had been led to be-
lieve that she was the one causing all the problems.
When Aguilar persisted in denying responsibility for or-
ganizing the meeting, Futterman asked her who in fact
had been responsible. Aguilar, who by this time was
crying, informed Futterman that she did not want to say.
Futterman told her that she had to tell him and finally
Aguilar informed him that it had been Del Castillo's
idea. Aguilar was then ordered back to work.
Later that same day, Futterman summoned Del Cas-
tillo to his office. Like the prior interview with Aguilar,
Wood was also present. According to Del Castillo's
credible account, Futterman stated that he had heard
rumors that Del Castillo was jealous of Dominguez and
his attention toward Margarita Mendoza. s Futterman
then stated that he had also heard that Del Castillo was
talking to other employees trying to get them to join in a
walkout. Del Castillo denied this. During the course of
the meeting, Del Castillo asked Futterman if it were pos-
sible for her to get a raise. Futterman replied that he
would have to talk to Jurado and Dominguez about that.
Futterman ended the conversation by telling her to
return to work and behave herself. Additionally, Futter-
man instructed her not to tell anyone what happened and
I This confusion as to the sequence of events is understandable since
within a 4-day span, Monday thru Thursday, two large meetings with
Futterman were held and at least three smaller meetings or conferences
were held with some or all of the main participants.
' While Futterman did not explain why Aguilar was the individual
summoned to this meeting it appears likely that she was so chosen be-
cause of her active role in the prior group meeting. The account of this
conversation is based on the nearly identical testimony of Aguilar and
Futterman
i^ Dominguez testified that from the time Mendoza was hired he ob-
served a discernible change in Del Castillo which he attributed to jealou-
sy on her part. Dominguez testified that he observed that whenever he
approached Mendoza, Del Castillo made faces and that Del Castillo was
frequently lodging complaints with him about the quantity and quality of
Mendoza's work. Additionally, he observed that Del Castillo was gener-
ally paying more attention to Mendoza's work and her whereabouts than
she was to her own work with the result that she was making frequent
mistakes. Dominguez further testified that he spoke to Del Castillo about
these mistakes on several occasions prior to her discharge Del Castillo
admits that she felt that Mendoza was given special treatment by Domin-
guez and that she pointed out certain deficiencies in Mendoza's work to
him. However, Del Castillo vehemently denied any romantic interest in
Dominguez and, in fact, no evidence was offered that Dominguez and
Del Castillo ever dated. Moreover, as noted above. Del Castillo was not
the only employee to feel that Dominguez showed Mendoza favoritism
Dominguez' testimony with regard to Del Castillo's alleged history of
mistakes since Mendoza's arrival is totally contradicted by the record evi-
dence. Around March 1978, at or about the same time that Mendoza was
hired, Dominguez, in effect made, Del Castillo his assistant to hand out
work assignments in his absence, assist in the instruction of new employ-
ees and the making of daily production reports She continued to do
these tasks up until the week of February 19, when the complaints re-
garding Dominguez were first lodged with Futterman
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if she had any more complaints, he would have to
fire her or Dominguez and since Dominguez was his
right-hand man, it would be her. 19
According to Dominguez, on Thursday morning, Feb-
ruary 22, he noticed that all the racks were full of meat
and that there was virtually no production in his area.
He did not understand what was happening so he went
to the office to consult with Wood. He asked Wood to
go back to the steak room and observe the situation for
himself. Dominguez returned to the steak room and,
while awaiting Wood's arrival, allegedly timed some of
the women's work. 20 Wood then arrived and, after ob-
serving the women for a few minutes, informed Domin-
guez that Dominguez' suspicions were correct and that
something unusual was going on. Then both Dominguez
and Wood went to Futterman's office and informed him
of the situation and he in turn instructed them to bring
all the women to his office for a second meeting.
Present at this meeting were all employees in the
steak-wrapping department as well as Dominguez,
Jurado, Wood, and Futterman. Futterman stated that
there were problems with slow production. When one of
the employees complained about a work assignment she
had been given, Futterman imformed her that Domin-
guez was her boss and that they had to do whatever Do-
minguez said. Futterman further stated that he did not
want to hear any more complaints from the women and
that there were too many people around who wanted to
work and that if the employees were unhappy, they
could leave.2
On the afternoon of the following day, Friday, Febru-
ary 23, Del Castillo was called into Wood's office and
informed by Wood and Dominguez that Futterman had
decided to let her go.
At the hearing, Futterman testified that he made the
decision to terminate Del Castillo on Thursday after-
noon, February 22, after the second meeting he held
with the women from the steak-wrapping department.
Futterman explained that he had previously talked to
"' Futterman testified that he and Wood interviewed Del Castillo, but
places their meeting a week or two prior to her discharge. According to
Futterman's account, he complained to her about her lower production
and accused her of allowing her emotions from outside work to adverse-
ly affect he work and the work of the entire crew. Futterman further al-
legedly told her to make sure that there was a happy environment at the
plant and that she was to insure that the crew was happy. At the hearing,
Futterman explained that from his periodic walks through the plant, he
observed that production was down and from reports he received from
Dominguez and Wood, he believed that Del Castillo was responsible for
the decrease in production. While Futterman admitted that both his dis-
cussions described above with Aguilar and subsequently with Del Cas-
tillo took place between the two mass meetings (the second of which will
be discussed infra), he did not testify as to whether his meeting with Del
Castillo preceded or followed his meeting with Aguilar. Even under Fut-
terman's account of these two conversations, it appears more probable
that Del Castillo was called in after Futterman had first obtained the in-
formation from Aguilar that Del Castillo was the individual responsible
for organizing the first meeting of employees.
:o Dominguez testified that an employee normally could wrap 96
pieces of meat in 18 minutes and that he observed on this morning that it
was taking 36 to 45 minutes to accomplish this task. Dominguez did not
identify who he timed nor did he ever mention whether he observed Del
Castillo's work that morning.
2 The above version is based on the credible testimony of Del Castillo
and Quinones. Futterman did not testify regarding the substance of this
meeting. Dominguez' version corroborates that set forth above.
Del Castillo regarding allowing her emotions to affect
her production and the production of the rest of the
crew and that he believed that her unhappiness with the
situation was serving as a disruptive influence on the
production of the others. He further explained that her
failure to follow his orders that she "get a happy envi-
ronment into the place" and "to make sure that every-
body is happy" and to "get the production up" constitut-
ed insubordination which warranted her discharge.
While Futterman denied that the decision to discharge
Del Castillo was made on the same day of his meeting
with Aguilar or came as a result thereof, in a sworn affi-
davit given to the Board agent investigating the charge
on March 14, Futterman, after first describing his con-
versation with Aguilar, stated as follows:
I then called Fernando the same day and I told Fer-
nando that Imelda would be fired on Friday, Febru-
ary 23, 1979, because she had refused to follow my
orders about keeping her personal matters out of
her job. I made my decision to fire Imelda on this
day because of her insubordination towards me. I
wanted her to finish up the week.
In resolving this apparent conflict between his testimo-
ny at the hearing and at his recounts of events as set
forth in his affidavit, I am persuaded that the affidavit is
clearly the more probable of the two versions. 22 Other
than Del Castillo's alleged "failure to get a happy envi-
ronment" no evidence was presented that Del Castillo
ever failed to carry out a direct order from Dominguez
or Futterman.
Ill. ANALYSIS AND CONCLUSIONS
Section 7 of the Act protects "concerted activities for
the purpose of collective bargaining or other mutual aid
or protection." Here, the approximately eight women
employees employed in the steak-wrapping department
bonded together to protest alleged favoritism of their su-
pervisor in allocating job tasks. Additionally, they
lodged the complaint to Respondent's plant manager that
their supervisor continually threatened them with dis-
charge and that these constant threats had an adverse
effect upon the environment within which they had to
work. Prominent among the employees who spoke at
this meeting was the Charging Party, Imelda Del Cas-
tillo, who acted as an interpreter for some of the employ-
ees. 23
The law is well settled that the quality of supervision
which has a direct impact on employees' job interests
and ability to perform are legitimate employee concerns
and that group action in bringing these concerns to the
attention of management is protected concerted activi-
ties. Dreis & Krump Manufacturing, Inc., 221 NLRB 309
(1975).
22 Futterman, in both his testimony given at the hearing and in his pre-
trial affidavit, stated that the reason he discharged Del Castillo was her
insubordination and failing to get "a happy environment."
23 That Del Castillo was not chosen as the spokesperson by the em-
ployees to represent them at the meeting is irrelevant since it is clear that
she spoke at this meeting on the employees behalf as well as her own
behalf. K-Mart Enterprises, Inc., 202 NLRB 358 (1973).
PACIFIC COAST INTERNATIONAL MEAT CO. 1381
In addition to the allegation regarding Del Castillo's
discharge of February 23, a series of events and conver-
sations followed fast on the heels of the initial group
meeting of February 19, which the General Counsel has
also alleged constitute independent violations of Section
8(a)(1) of the Act. First, Dominguez, Del Castillo's im-
mediate supervisor, questioned Del Castillo, both at the
plant and later on the phone, regarding what the em-
ployees had said to Futterman about him. During the
first such conversation, Dominguez in effect informed
her that from then on she would have to do exactly as
he ordered. Implicit in this statement was threat of un-
specific reprisals if she deviated from her instructions in
any respect. Del Castillo had only to wait until the fol-
lowing day to feel the wrath of Dominguez' anger and
resentment. That morning Dominguez assigned her to
load and push to the freezer flat trucks weighing up to
500 pounds. Del Castillo had not performed this duty
since her first months of employment with Respondent.
Additionally, it is undisputed that in the past Respondent
assigned at least two women employees to perform this
task. Additionally, that same morning, Del Castillo was
assigned the physically difficult and onerous job of rew-
rapping frozen meat. Again it is undisputed that this was
a difficult and undesirable task normally performed by at
least two to three employees. Finally, Dominguez took
away from Del Castillo the job of preparing the daily
production records.24
That Dominguez was not content to let matters rest
there is evidenced by the fact that later that same day,
after overhearing Del Castillo speak to another supervi-
sor, he ordered her to the office and, in the presence of
Wood, informed her that she and several other employ-
ees would be fired so that he, Dominguez, could bring
the remaining employees back into line.
On either the same day or the following day, Futter-
man, in an admitted attempt to find out who was respon-
sible for organizing the women, called employee Aguilar
into his office and in the presence of Wood questioned
her. Despite the fact that Aguilar was upset and crying
during this meeting, Futterman pressed her to tell him
which employee was responsible for the complaints.
Only after Futterman informed her that she had to tell
him the identity did Aguilar state that it had been Del
Castillo's idea. Thereafter, the credible evidence estab-
lishes that Del Castillo was summoned to Futterman's
office and directly accused of inciting the employees to
walk out and warned that if she had any more com-
plaints, he would have to fire her.
Finally, on Thursday, February 22, Futterman held his
second meeting with employees. Again, it is undisputed
that during the course of this meeting, Futterman stated
that he did not wish to hear any more complaints among
the women and threatened to discharge them if there
:2 Respondent, in its brief, in effect argues that the job of preparing
the daily production sheets only took approximately 2 minutes each day
and therefore having this task taken away was so trivial as to be inconse-
quential. This argument ignores both the fact that performing this task
permitted Del Castillo to leave the production area 15 minutes prior to
the end of her shift and was an assignment which Del Castillo, as well as
the other employees, could consider as prestigious.
were continued problems such as complaints regarding
Dominguez' supervision.
The above-summarized discussions between Domin-
guez and Del Castillo, Futterman and Del Castillo, Fut-
terman, and Aguilar, and finally Futterman's remarks to
the group meeting on February 22, clearly constitute bla-
tant interrogations of employees' protected concerted ac-
tivities and threats of reprisals, including discharge, if the
employees continued to engage in such protected con-
certed activities. That these interrogations and threats
amount to unlawful interference and coercion within the
meaning of Section 8(a)(l) warrants little, if any, discus-
sion. Futterman's remarks to the group of employees on
February 22 was a direct prohibition against employees
further engaging in protected concerted activities under
threat of discharge. Similarly, Dominguez' remarks to
Del Castillo on the previous day in Wood's office is
nothing less than an admission by an agent of Respon-
dent that Del Castillo, as well as several other employ-
ees, would be discharged for their engaging in protected
concerted activities. With regard to Futterman's individ-
ual questioning of Aguilar and Del Castillo, there does
not appear to be any legitimate purpose for his question-
ing who was the individual responsible for organizing
employees, nor was either Del Castillo or Aguilar given
assurances against reprisals. Hansen Cakes, Inc., 242
NLRB No. 74 (1979); San Lorenzo Lumber Company, 238
NLRB No. 198 (1978).
With regard to the General Counsel's allegation that
Del Castillo was assigned to more arduous and less desir-
able job tasks because of her engaging in protected con-
certed activity, the record evidence discloses that Do-
minguez held Del Castillo responsible for the employees'
complaining about him to Futterman and, in reaction
thereto, Dominguez immediately reassigned her to move,
load, and push heavy flat cars and rewrap frozen meat
by herself. Additionally, Dominguez relieved the Charg-
ing Party of her recordkeeping duties. By such retali-
atory assignment of work, Respondent interfered with,
restrained, and coerced Del Castillo in the exercise of
her protected concerted activity in violation of Section
8(a)(l) of the Act. Isaac and Vinson Security Services, Inc.,
193 NLRB 847 (1971).
Finally, I consider the alleged unlawful discharge of
Del Castillo. Against this background of unlawful con-
duct during the preceding 4 days, Respondent's conten-
tions, even when viewed in the light most favorable to it,
is at best confused and ill defined and at worse an admis-
sion that its decision was based upon Del Castillo's pro-
tected concerted activity.
Respondent contends that its sole concern during this
period was an alleged decrease in production and that
this decrease was directly attributed to the Charging
Party. While the record evidence with regard to the al-
leged decrease in production during the 2-week period
preceding her discharge is scant and undocumented, the
record evidence with regard to Del Castillo's involve-
ment therein is totally absent.
Although Futterman in his individual meetings with
Aguilar and Del Castillo, and subsequently in his meet-
ing with the group of employees, complained that pro-
duction was down, Respondent produced no production
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records to substantiate this claim. Respondent admits that
such records were kept on a daily basis but offered no
explanation for its failure to produce such records which
were central to its entire defense. In these circumstances,
it is inferable that they would not support Respondent's
defenses. Colorflo Decorator Products, Inc., 228 NLRB
408, 417 (1977). The only other evidence offered at the
hearing with regard to a decrease in production was Do-
minguez' uncorroborated testimony of his timing the em-
ployees' work on the morning of Thursday, February 22.
This testimony is, in my view, deficient in several re-
spects and, thereby highly unreliable. Dominguez at no
point during the hearing testified how long he observed
production that morning or, in fact, who or how many
employees he timed. While there were approximately
eight employees working on the production line that
week, the record is silent as to whether he observed one
or all the employees under his direct supervision.
Even if one assumes, arguendo, that Respondent's con-
tention that production in fact decreased during the
week of February 19, Respondent offered no credible
evidence that Del Castillo's individual production suf-
fered. Respondent admits that Del Castillo never refused
a direct order or failed to perform an assigned task. As
noted above, no evidence was presented that any super-
visor made any effort to observe or verify her produc-
tion that week. Dominguez' testimony that he observed a
discernible change in Del Castillo's work habits from the
time Mendoza began her employment the previous year
is highly suspect since Del Castillo was given additional
responsibilities during that years' time. Additionally, de-
spite Del Castillo's alleged production mistakes, during
that entire year no action was ever taken against her
prior to her participation in the first meeting with Futter-
man.
The evidence is undisputed that within 2 days of the
employees voicing their complaints to Futterman regard-
ing their supervision, Futterman investigated the situa-
tion, decided Del Castillo was responsible for organizing
her fellow employees, and determined that these com-
plaints adversely affected "the happy environment." In
these circumstances, Futterman's testimony that Del Cas-
tillo was discharged for insubordination for her failure to
get "a happy environment in the plant" can reasonably
be viewed as an admission that he did not want any fur-
ther complaints from the employees and that the surest
methods to insure that no further complaints would be
forthcoming was to discharge the employees' leader and
spokesman. As such, Del Castillo's discharge because of
her protected concerted activities was violative of Sec-
tion 8(a)(l).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II
and III, above, occurring in connection with the oper-
ations of Respondent, described in section I, above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Imelda Del
Castillo in violation of Section 8(a)(l) of the Act, I rec-
ommend that Respondent be ordered to offer her rein-
statement and to make her whole for any loss of pay re-
sulting from her discharge by payment of a sum of
money equal to the amount she would have earned as
wages from the date of her discharge to the date on
which reinstatement is offered, less net earnings during
that period.25 The amount of backpay shall be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be computed
in the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by:
(a) Coercively interrogating employees about their
protected concerted activities.
(b) Threatening employees with reprisals including dis-
charge if they continued to engage in protected concert-
ed activities.
(c) Imposing more onerous working conditions on its
employees because they engaged in protected concerted
activities.
3. Respondent violated Section 8(a)(1) of the Act by
discharging employee Imelda Del Castillo.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 6
The Respondent, Pacific Coast International Meat Co.
its officers agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees for engaging in protect-
ed concerted activities.
(b) Coercively interrogating its employees about their
protected concerted activities.
(c) Threatening employees with reprisals including dis-
charge for engaging in protected concerted activities.
2. On June 29, the Charging Party received a telegram from Respon-
dent dated June 22 informing her to report for work on Monday, June
25. This telegram bears a postmark indicating telegram was not even
mailed until June 28. It does not appear that Respondent is contending
that its telegram was a valid offer of employment. In view of the fact
that this telegram did not arrive until 4 days after June 25, I do not con-
sider that it satisfies the Board's requirement regarding a valid offer of
employment.
2z 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
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
PACIFIC COAST INTERNATIONAL MEAT CO. 1383
(d) Imposing more onerous working conditions on its
employees for engaging in protected concerted activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Imelda Del Castillo immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed, and make her whole for her loss of
earnings in the manner set forth in this section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Vernon, California, facility copies of the
attached notice marked "Appendix." 2 7 Copies of said
27 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
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's 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 are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
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"