Peyton Packing Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1943

49 N.L.R.B. 828 (N.L.R.B. 1943)

In the Matter Of PEYTON PACKING COMPANY, INC. and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN or N. A., A. F. OF L., LOCAL,
#606
Case No. CD466. Decided May 18, 1943
Mr. Bliss Daffan and Mr. Elmer P. Davis, for the Board.
Mr. Eugene T. Edwards, of El Paso, Tex., for the respondent.
Mr. Allen Williams, of El Paso, Tex., for the Union.
Mr. Frederic B. Parkes, 2nd, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Amalgamated
Meat Cutters' and Butcher Workmen of N. A.,, A. F. of L., Local
#606, herein called the Union, the National, Labor Relations Board,
herein called the Board, by,the Regional Director' for the Sixteenth
Region (Fort Worth, Texas), issued its complaint, dated October 23,
1942, against. Peyton Packing Company, Inc., El Paso, Texas, herein
called the respondent, alleging that the respondent had engaged, in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section-8 (1) and. (3) and Section 2 (6) and (,7) .of
the National Labor Relations Act, 49 Stat. 449, herein called the Act,.
Copies of the complaint, accompanied by notice of hearing,,were duly
served upon the respondent and the Union. ,
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent (1) discriminatorily discharged, on
specified dates, 20 named employeesand thereafter refused to rein-
state them because they had joined or assisted the Union or engaged
in other concerted activities for the purpose of collective bargaining
0
1 Fidel Ramirez, Juan Aguilar, Julian Barraza, Nazardo Diaz, Lorenzo Viera, George
Arciniaga. Salome Rios, Jose Delgado, Eugenio Lopez, Manuel Nevarez, Fidel Lara,
Manuel Barreda, Manuel Renteria, Manuel Quintana, Ignacio Carlos, Juan Montalvo, L. J.
Mena, Eduardo Ochotorena, Luz Cardenas, and Gregono Alarcon. During the hearing,
the Board moved to dismiss the complaint as to Fidel Ramirez, Julian Barraza, Lorenzo
Viera, Manuel Nevarez, Juan Montalvo, and Luz Cardenas. The Trial Examiner granted
the motion.
49 N. L. R.B.,No.119,
828
PEYTON PACMNG COMPANY, INC. 829
or other mutual aid and protection; (2) from on or about December
1, 1941, and thereafter, vilified, disparaged, and expressed disapproval
of the Union; interrogated its employees concerning their union affili-
ations; urged, persuaded, threatened, and warned its employees to
refrain from assisting, becoming members of, or remaining members
of the Union; kept under surveillance the meeting places, meetings,
and activities of the Union; solicited and received reports from em-
ployees and others concerning membership in and activities on behalf
of the Union; and promulgated and posted in its plant a rule pro-
s hibiting solicitation of any kind on its property and/or during work-
ing hours for the purpose of frustrating and preventing self-organi-'
zation of its employees, and has enforced such rule. solely for such
purpose; and (3) by the said activities interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On October 31, 1942, the respondent filed its answer, in which it
admitted the allegations of the complaint as to the nature of its busi-
ness, denied committing any unfair labor practices, and alleged affirm-
atively that each of the employees alleged in the complaint to'have been
discriminatorily discharged was discharged for willful violation' of -
company rules or for other good cause, except Salome Rios, swho, ,the
respondent alleged, was laid off because of lack of work. , , ` ,
Pursuant to notice, a hearing was held from November 5 to 16, 1942,
inclusive, ' at 'El Paso, Texas, before Gustaf B. Erickson,' the Trial
Examiner duly designated by the Acting Chief Trial Examiner. The
Board, the` respondent, and the Union were represented by counsel or
official representative and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the commencement of the hearing, motions were made by the Union
to amend the'charges and by, the attorney`for'the Board to amend the
complaint; to include the allegation that on August 19, 1942,; the' re-
spondent discriminatorily discharged Reyes Trujillo and thereafter
refused to reinstate him for the reason that he joined and assisted the
Union; and that on or about February 1, 1942, the respo ideiit failed
and refused to.promote Juan Araujo to the position of foreman in the
boning department for the reason that he joined and assisted the Union.
The Trial Examiner granted these motions and permitted the re-
spondent to amend its answer during the course of ,the hearing.. At' the
conclusion of the' hearing, counsel' for the Board moved' to conform
the pleadings to the proof. The motion was granted. During the
course of the hearing, the trial Examiner made numerous rulings on
other motions and on objections to the admission ,of evidence. The
'Board has reviewed the rulings of the Trial Examiner made during
830 'DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
the course of the hearing and finds that no prejudicial errors were
committed. These rulings are hereby affirmed.
At the conclusion of the hearing, the parties were afforded an oppor-
tunity to, argue orally before, and file briefs with, the Trial Examiner.
The Board and the respondent made oral arguments on the record, but
all parties waived the right to file briefs with the Trial Examiner.
On December 22, 1942, the Trial Examiner filed his Intermediate
Report, copies of which were' duly served upon the-respondent and the
Union. He found\that the respondent had not engaged in and was not
engaging in unfair labor practices, within the meaning of Section 8
(1), and (3) and Section 2 (6)-and (7) of the Act, and recommended
that the complaint be dismissed. On- January 25, 1943, the Union filed
with the Board its exceptions to- the Intermediate Report, and .a brief
in support of the exceptions. On February 1, 1943, the respondent
filed with the Board a brief in reply to the Union's exceptions.
On February 16,,1943, pursuant to notice, a hearing;was held before
the. Board at. Washington,: D. C., for the purpose of oral argumeit.
The';respondents,and the Union were, represented by counsel and par-
ticipated'in thesoral argument. . - - , - I . ,
The Board has'considered the,exceptions to the.Intermediate Report
and the briefs, and insofar- as the exceptions are consistent with the
findings, conclusions, and ,older set forth, below, finds them to have
merit., - , _ . - ' 1 11 .. _ . , , A. , ,
Upon,the ,entire. record' in the case, the Board makes. the following :
FINDINGS , OF FACT
I. THE BUSINESS OF, THE RESPONDENT
Peyton Packing Company, Inc., a Delaware corporation licensed
to,do business in the State of Texas, is engaged in- the killing of live-
stock, the"curir g' and packing of meats and related' products, and' the
sale and' distribution thereof. Its principal office and place of business
is, located at El Paso,. Texas. During''the year 1941, the respondent
purchased for use in its business materials valued at approximately
$4,950,000,. of which amount, approximately 30. percent was shipped
to it from points outside the State of Texas. During the same period
its sales , amounted to approximately $5,764,000, of which amount
approximately 50 percent was shipped to points outside the State of
Texas.. In 1942, the respondent employed about 3,70 employees.
II. THE ORGANIZATION INVOLVED
'Amalgamated Meat Cutters and Butcher Workmen of North
America, -Local''#606, is a labor organisation 'affiliated with the
4
•PEYTON PACI{ING COMPANY, INC. 831
American Federation of Labor, admitting to membership employees
of- the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion -
1. Chronology of events
In October 19400a hearing was conducted before a Trial Examiner
upon a complaint issued by the Board alleging that the respondent
had engaged in unfair labor practices within the meaning of Section
8 (1), (2), and (3) of the Act. The Trial Examiner in his Inter-
mediate Report, dated'January 13, 1941, and the Board in its Decision
and Order, issued June 11, 1941,2 found,'inter alia, that the respond-
ent had dominated and interfered with a, labor organization known
as Employees' Association of the Peyton Packing Company, herein-
after called the Association. In addition to other factors indicating
company-domination, the Board found that the respondent had per-
mitted activities on behalf of the Association during working hours.
On January 30, 1941, the Association was disbanded by its mem-
bers. It is undisputed that in December 1940 or January 1941, co-
incident with the disbandment of the Association, employed Espiridon
Muro and eight or nine other employees commenced the organization
of another unaffiliated labor organization among the respondent's
employees. When their activities came, to the respondent's attention
by reason of a newspaper article announcing the receipt of a charter
by the organizers, Joseph F. Gandara, the respondent's personnel
manager, sought out Muro and, according to Muro's.testimony, warned
him "to try not to do any work of that kind inside of the Company's
property."
On September 23, 1941, 3 months after the issuance of the Board's
Order, the respondent posted compliance notices in accordance with
the Order of the Board.3
The Union commenced its organizational campaign in October or
November 1941. The respondent was admittedly aware of the efforts
of its employees to organize for Garidara and Vice-President H. B.
Harris testified 'that in October and December 1941, respectively,
' Matter o f Peyton Packing Company, Inc. and Packinghouse Workers Organizing Com-
mittee, 32 N. L. R. B. 595.
8 With the approval of the Board 's Regional Director , the respondent was permitted
to make that part of the Board's Order which required the reimbursement by the respond-
ent of dues checked off the wages of employees in, favor of the - Association , contingent
upon the ruling of the United States Supreme Court on that question in the then pending
case of N. L . R. B. v. Virginia Electric and' Power Company, which ' subsequently was
remanded by' the Supreme Court to the Circuit Court of Appeals without having resolved
that question 314 U S. 469.
832 DECISIONS OF NATIONAL LABOR RELATI'ONS BOARD
they saw cards inviting the employees to a "beer bust" sponsored by
the Union. It is clear from the testimony of L. F. Miles and Harris,
president and vice president respectively of the respondent, that the
Union's organizational activities were definitely ' brought to the re-
spondent's attention early in January 1942 when the respondent was
notified by the Board's Sixteenth Regional Office of the filing by the
Union of charges of unfair labor practices.
On January 26, 1942, the respondent posted the following notice in
English,and Spanish in conspicuous places throughout its plant:,
NOTICE TO ALL EMPLOYEES
No employee shall engage in solicitation of any kind while on
property of this company, or while working on company time.
Disregard of this rule will result in immediate discharge and
no exceptions will' be made.
PEYTON PACKING COMPANY, INC.,
By H. B. HARRIS,
Vice President.
By May 1942, ,the Union's organizational campaign had reached its
peak. Shortly prior to May 15, Vice President Harris instructed
Gandara to make an investigation concerning violations of the no-
solicitation rule. Thereupon'Gandara and employee Raul Aguilar,
who had been requested by Gandara to aid,in the investigation, asked
employees in every department of the'plant if they had been solicited
'to'join the Union on company premises. In the instances where such
solicitation was alleged to Have occurred, the employees were ' re-
quested to identify those who had urged them to join the organiza-
tion. On May 15 and thereafter, 'employees reported by Gandara to
have violated the no-solicitation rule were brought before an inquisi'.
torial board composed of President Miles, ' Vice President Harris,
Vice President S. N. Chauvet, Plant Superintendent W. A. Kessler,
and Gandara. As hereinafter found, these officials questioned em-
ployees charged with violating the no-solicitation rule and discharged
nine of them.
By , letter dated, May 19, 1942, the Union formally notified, the re-
spondent that it represented a majority of the respondent's employees
and requested that a date for a conference be set to negotiate a con-
tract. On May 21, 1942, J. C. Peyton, chairman of the respond-
ent's board of directors, replied thereto by letter, stating in part :
Should the time ever arrive when a majority of our employees
believe that it is necessary for someone else to do for them what
they have heretofore satisfactorily done for themselves by way of
conference and free discussion with the management, and we are
furnished with proof that such is the desire of the majority, you
may rest assured that-we will properly meet that situation when
and if it arises.
,PEYTON 'PACKING OOMPANY, INC. 833
So long as you do not represent anyone having legitimate busi-
ness with us, so far as we know, you must surely understand that
no useful purpose could be served by granting you an interview.
2. Anti-union statements and activities
From the beginning of the Union's intensive organizational'activi-
ties of January 1942 until the peak ' of its campaign in May 1942,
Personnel Manager Gandara and Aguilar, the agent'of Gandara, as
hereinafter found, interrogated employees concerning their member-
ship in the Union and engaged in various other anti-union activities.
According to employee Eugenio Lopez, he had the following con-
versation with Gandara about January 17, 1942: Gandara asked him
if he knew "any of the boys that belong to the union." Lopez replied
that he did not. When Gandara asked him if he were a member of the
Union, Lopez denied'that he belonged. Thereupon Gandara said, "You
better not join, because all of the boys who are going. to join the
union are going to get fired and it is going to be too bad for them.
If you know any of the boys who belong to the union, go ahead
and turn their names in to me."
Employee Pedro Martinas testified that in January or February
1942, he had the following conversation with Gandara : After inquiring
about the safety committee of which Martinas was a member; Gandara
asked, "Do you know there is an association or something trying to
get in the Peyton Packing Company?" When Martinas replied in the
negative, Gandara then asked, "Well, who is the more noisy or the
fellow making the more noise?" Martinas replied that he did not
know, and Gandara departed, saying, "That is all. Don't say to'
nobody what I'say to you."
Although Gandara categorically denied having had the conversation
with Lopez, set forth above, he admitted that he had had a conversa-
tion with Martinas a day or two before February 3, 1942, on which
date a meeting of the safety committee was held. He denied, however,
that he had mentioned the Union and insisted that the conversation
was confined to the problems of the safety committee. - The Trial
Examiner credited Gandara's denials. He further found that Lopez
was not a credible witness and that Martinas was mistaken as to the
date of his conversation with Gandara. Upon a consideration of all
the evidence, we cannot agree with the Trial Examiner's evaluation
of the testimony. The record does not support the Trial Examiner's
inference that when Lopez changed his testimony and stated that
he would take his job back if he were offered reinstatement, he neces-
sarily testified falsely by asserting that he had not discussed his testi-
mony with counsel for the Board or the representative for the Union.
Lopez was not asked whether he had discussed the matter with Board's
834 DECISIONS OF NATIONAL LABOR REIAA*IT01\PS BOARD
counsel or the Union's representative, testifying merely that no one
had helped him change his mind with regard to the question, of rein-
statement. There is no inherent improbability in this testimony.
Moreover, throughout his testimony Lopez appears to be a forthright,
intelligent, and trustworthy witness. As to the colloquy with Martinas,
Gandara admitted having had a conversation shortly before the meet-
ing • of the safety committee on February 3, 1942, such date being
established by records of that meeting. In the earlier proceeding, the
Board did not credit the testimony of Gandara and found that he
had engaged in surveillance of union meetings, an activity particularly
befitting the anomalous nature of 'his directorship' of personnel 4
Gandara admitted that during the investigation of violations of the
rule against solicitation he interrogated over 30 employees with regard
to the Union's solicitation of their membership and contended, in his
testimony, that he did not believe that "contacting 30 employees out of
300 would be termed propaganda _(i. e., against the Union), but cer-
tainly contacting 300 would be, . . . because of the difference
in the proportions." Moreover, as the Trial Examiner found, the testi-
mony of witnesses for both the Board and the respondent establishes
that, despite Gandara's denials, he also questioned employees regard-
ing their union membership and activities during the investigation. In
view of these factors and his subsequent conduct, hereinafter set forth,
we cannot credit Gandara's denials and we find that the conversations
occurred as testified 'to by Lopez and Martinas.
Employee Lopez testified that about January 3, 1942, Aguilar, who
was a billing clerk employed in the main office, asked Lopez if he
belonged to the Union and that when Lopez admitted his member-
ship, 'Aguilar said, "Well, the Union, is not going to do anything
good for you. They will just go ahead and take your money, away
from you and they won't fufill any promises they make; just go
ahead and leave you holding the bucket, and any time you want
to make a good union or a good organization, you come to me and
you and I can go ahead and start organizing a union that will do
some good for you * * * Mr. Gandara told me to tell the boys
that the Company wouldn't pay the wages that the Union is asking-
for." According to Lopez, Aguilar also informed him that "the
'company had a man attending our meetings and there were 45 mem-
bers only in our union." Aguilar categorically denied that the con-
versation had occurred. The Trial Examiner found Lopez to be
an incredible witness, and accepted Aguilar's denial. We are of the,
opinion that the record does not support the Trial Examiner's reso-
' with respect to Gandara's duties as personnel manager, vice-President Harris testi-
fied, "well, we- have got a kind of a funny personnel setup there, I guess He (I e ,
Gandara) does some personnel work and he goes to check up on absences and be goes to
visit cases of sickness and render whatever help he can in that respect; most anything
that comes up in the way of trouble 'among the employees , he frequently handles that."
I
,,PEI TON PACKING COMPANCY, INC. 835
lution of this conflict in testimony. As found above, the testimony
of Lopez is most persuasive and is entitled to credence.- On cross-
examination Aguilar admitted that beginning "around December"
1941 ' he and Lopez "talked ten or fifteen times a day" about the
Union. Moreover, the accuracy of Aguilar's report on the number
of union members is shown by the testimony of Allen Williams,
organizer for the Union, who stated that when he assumed his duties
in February 1942, he received 49 membership cards from the organ-
izer who preceded him. That Aguilar was an excessively. hostile
and disrespectful witness, whose veracity is indeed -doubtful, is well
demonstrated by his testimony,' and, as hereinafter set forth, by his
5 The following is quoted from his testimony :
Q. What did you ask Monsisvais?
A. I asked him whether he belonged to the labor union.
Q. Did Mr. Gandara ask you to ask them if they belonged to the labor union?
A. No
Q. Well, why did you do that?
A. Well, I suppose you call that a• free lancer.
Q. What did you want to know for"
A. Well, I just want to find out ; if they belong to it, I will report it.
Q. Oh, if'they belonged to the labor union, you would report it?
A. You bet you.
n a s .* » s i
Q. What did you mean by this free lance expression of yours?
A. Well, I believe that a free lancer, as I understand it, is a fellow that goes and
solicits for himself, or rather, solicits for pay for somebody else.
Q. Were you soliciting for pay for somebody else?
A. I was not.
Q Oh. Why did you use the expression free lance then?
A. I say I wasn't.
Q. You wasn't what?
A I wasn't what?
Q. Well, I want to know why you used the expression free lance?
A. I just used it That is all.
s a a • a s t
Q. Well, why .Nere you a free lancer then?
A. I wasn't.
Q You said in your testimony-
A I didn't.
Q. I-low did I get to know that you said the word?
A Well, ask yourself.
Q. Didn't you ever say free lancer? Didn't you ever use that expression?
A. I did.
Q: What did you mean by it?
A. I said that I wasn't ; I wasn't a free lancer.
Q. In what respects weren't you a free lancer?
A. I wasn't soliciting for nobody
s O i • ! ♦ $
Q. I want to know how you used the expression free lancer to are in your testi-
mony a while ago. -
A. Didn't I explain that already?
Q. No. I have never understood any explanation you have given me
A. I said a free lancer is supposed to be a, fellow that is soliciting for somebody
and he is being paid. In other words, he is just a stooge for somebody else.
Q. And that is what a free lancer is? A free lancer is a stooge for somebody else?
A. I',guess so.
Q. And when you used the expression, "I was a free lancer," you meant you were
a stooge for somebody else? -
A. I never said that . . . That is the reason I told you I would play a phonograph
record for you
I
531647-43-vol. 49--54
836 'DECISIONS OF NATIONAL LABOR RELATION'S BOARD
too ,ready and- apt explanations regarding anti-union statements
attributed to him by various witnesses. He also had been very
active in the old Association, disestablished by the Board's previous
order'against the respondent, and, in fact; had been its treasurer.
His demonstrated- antipathy to the Union revealed in his admitted
conversations, hereinafter noted, was also known to Gandara, who
testified as follows in regard to his request to- Aguilar to aid in
investigating violation of the no-solicitation rule : "I asked him to
find ' out if he could, without going around making speeches about
unions, find out if 'he knew of any solicitation, because he has been
one of those that had criticized the company for not letting them
get that union they were talking about (i. e., Muro's attempt in
1940-194f to organize a new independent association)." It is undis-
puted that Aguilar and Gandara were personal friends both inside
and outside the plant. In view of these facts, we find Aguilar's
testimony not entitled to credence: We find that Aguilar made the
statements attributed to him by Lopez, as set forth above.
Employee Felipe Soto testified on or, about February 5, 1942,
while at work, Aguilar asked him, "Has anybody told you to join the
Union?" and that when Soto replied in the negative to this ques-
tion, Aguilar said, "Well don't, join `because it is no good:" Aguilar
denied that the conversation' had ' occurred as related by ' Soto but
admitted that his work often took him to Soto's department, that
he had "plenty of conversations" 'with Soto, and that a substantially
similar colloquy had taken place between himself and Soto in a bar
at an unspecified date. According to Aguilar, Soto initiated the
conversation by asking if Aguilar had joined the Union. Where-
upon Aguilar inquired if Soto were a member and when Soto ad-
mitted that he belonged, Aguilar, according to his own testimony,
told him, "He was a darn fool and I told him, why. I said that I
had proof where the union did nothing for the men, and I told him
I could prove it to him." The Trial Examiner seemingly found that
the conversation occurred as related by Soto but that the latter
was mistaken as to the date. We find no rational basis for this
distinction. In view of Aguilar's significant admissions and the
factors, set forth above, negating'his credibility, we find that the
conversation occurred substantially as related by Soto in February
1942.
Juan Araujo -testified that one morning late in February or early
in March 1942, Aguilar made an appointment to see him at luncheon
period and that on entering the plant after luncheon, he had the
following conversation with Aguilar : Aguilar first asked him, "Say,
little chum, what do you know about this union. that is being organ-
ized?" When Araujo replied that he knew nothing about it, Aguilar
TEYTON PACKING COMPANY, INC. 837
said, "Oh, come on now. You can't hide anything from me, because
the officials in the office know that you belong to it. You better
come across and tell me' what you know about it. . . . I. just
want to tell you that your are not going to get anything' beneficial,
out of the 'union. They will only come here and take your money
away from you and leave you holding the bag." Whereupon
Araujo admitted his membership in the Union and Aguilar replied,
"Well, you better watch your step, because you,are due for a pro-,
motion. with the company and if they know that you are going
ahead with the union, you might not get it." Aguilar denied that
the conversation related by Araujo had' taken place and insisted
that, pursuant to an appointment made by Araujo in late February
or early March 1942, he met Araujo as they were entering the plant
after luncheon and that when Araujo asked him to join the Union,
he told -Araujo, "I wasn't interested, in unions at all ... I said that
they were darned fools for joining the Union; that I didn't want to
do nothing with unions; they were just people that took your money
away and they would give you no recompense for your money ..."
Aguilar further testified that Araujo expressed dissatisfaction for
not having been promoted to the position of foreman of the beef
boning department and said that he had joined the Union only a,
few days before. As in the case of Soto, supra, the Trial Examiner
apparently 'found that this conversation occurred but that Araujo
was mistaken as to the date of the conversation. We cannot agree
with this conclusion. Concerning the date of the conversation,
Aguilar also set it in February or March 1942. The testimony of
Araujo is most persuasive and indicates that he was one of the most
intelligent of the respondent's Mexican employees who were called
as witnesses. However, Aguilar's version of the conversation is
patently implausible in many respects. According to Aguilar, Araujo
solicited his membership in the Union and stated that he himself
had joined only a few days earlier. It is otherwise established by
the record that Araujo had been an active unions member since
November 14, 1941. The record also reveals that clerical employees,
such as, Aguilar, are not eligible to membership in. the Union. In
view of Araujo's extensive activities in behalf of the Union since
November 1941, and his obvious intelligence, it is reasonable to
assume, and we find, that Araujo knew of the restriction-as to mem-
bership eligibility and did not solicit Aguilar's membership. In
view of these facts, Aguilar's admitted anti-union statements, and
the other factors establishing the incredibility of Aguilar's testi-
mony, previously noted, we do not credit Aguilar's denial and find
that the conversation occurred substantially as related by Araujo.
Lopez testified that about the middle of March 1942, in a conversation
838 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
during working hours, Aguilar said, "You union boys really want to
get rich over night, . . . The union you are forming there has got a
fine racket," and that when Lopez replied, "Not as fine a racket as the
company union used to have," an argument ensued but before blows
were struck, the foreman of the department separated the two em-
ployees. Aguilar adm'itted' that the argument occurred in March,
which fact was further" corroborated by 'the testimony of Foreman
Pat Murphy and employee Leonardo Mandujan. Moreover, Aguilar
admitted that Lopez's version of the conversation was correct. Despite
these admissions, the Trial Examiner discredited the testimony of
Lopez.. In view of Aguilar's admissions and the fact, as heretofore
found, that Lopez's testimony is entitled to credence, we find that the
conversation occurred in accordance with Lopez's testimony.
Employee Cruz Gonzalez testified that on April 1, 1942, Aguilar told
him that, "There was a union and then he told me not to go into the
union because it wasn't a good thing ... He said for me not to join
the union, but to go to the meeting and ... to know what the meeting
was about and then to tell him what had happened." Gonzalez further
testified that he attended the meeting that evening and joined the
Union and that the following day Aguilar asked him if he had gone
to the meeting. According to Gonzalez, when he replied that he had
not attended" it, Aguilar said, "You are a sap." Aguilar denied the
truth of Gonzalez's version of the colloquy, although he "admitted that
he had a conversation with Gonzalez regarding the Union, the date of
which he was unable to determine. According to Aguilar, Gonzalez
initiated the conversation by asking Aguilar if he knew anything about
the Union and if it were any good. Aguilar testified that he told
him "he was a darn fool if he joined . . '. they would just take their
money away and they wouldn't have anything to show for their money."
The Trial Examiner did not credit Gonzalez's testimony. In our
opinion, the record does not support the Trial Examiner's conclusion.
The fact that Gonzalez joined the Union on April 1, 1942, was defi-
nitely established by his membership card. As found above, Aguilar
told Lopez early in January that the respondent had an informer
attending the union meetings. Moreover, the following testimony
of Araujo, whom we have found to be a credible witness, concerning
a colloquy with Bandara near Araujo's home on the evening of August
144942, is corroborative of Gonzalez's testimony:
He [Gandara] says, "Well, before I can recommend you for this
promotion, I want to know how you stand with this other group?"
I said, "Why, I don't know what you" mean by `this other
group." I - ,
He says, "Oh, you can't get around that question, because I know
,all.'about you. I know you have been active' lately with this"
other group. I know all about your C. I. 0., your A. F. of L:, and
r
^PEYTON PACKING COMPANY", INC. 839
Mr. Williams. I know all about you, because I got men in that
union who go to the meetings and come to me and tell me every-
thing that goes on in those meetings. They come to me and tell'
me everything that goes on there, because they are my friends. I
don't, have to pay them anything." 61
'Therefore, Aguilar's urging of Gonzalez to assume the, role of, an
espionage agent in behalf of the respondent is well befitting the be-
havior pattern displayed by the respondent. As previously found,
Aguilar's testimony is not entitled to credence. We conclude and find
that the conversation occurred as related by Gonzalez.
•
Beginning early in May 1942, Gandara, pursuant to the respondent's
instructions, and with the aid of Aguilar, conducted an investigation
among the employees to determine whether the no-solicitation rule was
being violated.' According to the testimony of employees Lopez,
Araujo, Francisco Caldera, Bernardo Lucero, and Antonio Monsisvais,
during the course of the investigation Gandara and Aguilar, in addi-
tion to.asking whether these employees had been solicited to join the
Union, also asked thdm 'whether or not' they were members of the
Union. ,As shown by the testimony of Aguilar 'previous l`y quoted;
Aguilar admitted such 'questioning. Although Gandara denied that
he had questioned employees concerning their 'union membership, the
Trial Examiner found that he had''done so. Upori the entire record,
we find 'that Gandara and Aguilar, during the course of the investiga-
tion, interrogated employees concerning their union membership.
In addition to'the evidence concerning the activities of Gandara and
Aguilar there 'is evidence of similar activities on the part of various
foremen . , Araujo testified that on May 14, 1942, Foreman MurrelHig-
don summoned him to a conference in- the respondent's office, and stated,
"We are going to get you guys in the union one by one, especially you
boys with the mustaches." Higdon denied that he evor made such a
statement 'to, Arauj o and further explained that "the only time that
I ever said anything about a mustache, I was kidding Nick. He has
charge of the pork shipping. That is right after the draft went in.
He said, `The ,army is going to get you.' I said, `No, they are not.
They are going to get the fellow's with the mustaches first."' Although
Higdon's explanation is not entirely implausible, nevertheless, as we
Have previously noted, Araujo's,- testimony is very impressive and,
furthermore, the remark he attributed to Higdon well befits the pattern
of anti-union activities engaged in by the respondent. We accord-
° Gandara admitted that he had a. conversation with Araujo about August 14, 1942,
immediately before Gandara left for his vacation . He further admitted that he made the
appointment to see Araujo at the latter's home and that they talked in his car , all,as
testified' to by Araujo . However, Gandara denied that the Union was mentioned in the
conversation .: For the reasons above set forth. we cannot credit Gandara ' s denials and
find that the conversation occurred as testified to by Arauio
I See footnote 5, supra.
840 DECISIONS OF NATIONAL LABOR RELATION'S BOARD ,
ingly do not credit Higdon's denial and find hat he made the remark
as testified to by Araujo'. -
Employee Francisco' Ledezma testified that about June 1942, Jack
Lee, then assistant foreman, but subsequently foreman of the feed lot,
asked him if he belonged to the Union and if he knew other employees
who belonged. Lee denied that he had ever questioned Ledezma con-
cerning his membership in the Union. Since Lee's interrogation of
Ledezma is identical to the questions asked other employees by Aguilar
and Gandara between January and May 1942, we find that it conforms
to the respondent's course of conduct previously noted. We accord-
ingly credit Ledezma's testimony and find that Lee made the remark
attributed to him by Ledezma.
Employee Roberto Yudico testified that about June 1942, he over-
heard Foreman Mariano Florez say in the shower room, "The Union
is going to hell right here" and that he was going "to get rid of each
one of them slowly." Yudico further stated that "it seemed" to him
'that the remarks were addressed to employee Salvador Montalvo, the
former president of the disestablished Association. Florez categori-
cally denied making the statement attributed to him by Yudico, and
Montalvo corroborated his denial. The Trial Examiner credited the
denials of Florez and Montalvo. We cannot concur therein. In view
of the discriminatory conduct engaged in by the respondent prior to
June and the mass discharges in May, as hereinafter discussed, it is
clear that Yudico's threat was, at least partially, an announcement
of a f ait'accompli. , In view ,of the entire pattern of discrimination
revealed by the record, we find that Florez made the statements attrib-
uted to him by Yudico.
3. Conclusions
Although. he Trial Examiner found that Gandara and Aguilar had
questioned employees concerning their union membership, he con-
cluded that'such questioning had occurred only during the course of
the respondent's investigation to 'determine whether employees had
violated the rule against solicitation, that such questions were within
the scope of the investigation, and that such activities were not viola-
tive of the Act. He clearly erred in.these conclusions. Even,if such
questions were asked solely during the course of the investigation,
they were immaterial to a determination-of the matter under investiga-
tion and were clearly violative of the Act.'
8 Cf. Matter of Richard F Kline and Local 355, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers (AFL), 39 N. L. R. B. 1047; N. L. if. B. v. Stone,
125 F. ( 2d) 752 (C. C. A. 7), enforcing as modified 33 N L. R B. 1014 ; Matter of F. W.
Woolworth Company and F. W. Woolworth Co of France and United Wholesale & Ware-
house Employees of New York , *Local 65, United Retail & Wholesale Employees of America,
25 N. L. R. B. 1362, enforced as modified 121 F. ( 2d) 658 (C. C. A. 2) ; Matter of Indus-
trial Life and Health Insurance Company and American Federation of Industrial and
Ordinary Insurance Agents Union No 2356, Sumter, S C. (AFL), 47 N -L. R B. 395.
i
PEYTON PACKING COMPANY, INC. 841
Moreover, the evidence recited above, which we have credited,
establishes that the efforts of Gandara and Aguilar to ferret out
prominent members of the Union began early in January 1942, even
prior to the promulgation of the no-solicitation rule. As shown by
the testimony of Lopez, Martinas, Soto, Araujo, and Gonzalez, all of
whom-we have heretofore found to be credible witnesses, Gandara and
Aguilar continued their anti-union activities throughout the ensuing
months; and finally, in May, when the Union's organizational cam-
paign reached its peak, the• respondent seized upon Muro's alleged
complaint of discriminatory treatment to launch a plant-wide inquiry,
through Gandara and Aguilar, to obtain the names of employees
violating the no-solicitation rule. The 5-month campaign to stifle
the Union's organizational efforts resulted in a series of discriminatory
discharges, hereinafter discussed.
Throughout the period in question, Gandara and Aguilar questioned
employees regarding their membership in the Union, warned them
that union members would be discharged, instructed employees not to
join the Union, told them that the respondent had informers attend-
ing and reporting the details of the union meetings, attempted to enlist
the services of Gonzalez as an espionage 'agent, and made various other
statements,,set forth above,-in derogation of the Union. In addition,
other anti-union remarks were made by Foremen Higdon and Yudico
in May and June 1942, and Assistant Foreman Lee questioned ' em-
ployee Ledezma with regard to his union affiliation in June. All these
activities were consistent with the' attitude expressed by the chairman
of the respondent's board of directors in his reply to the Union's
demands for bargaining rights.
The respondent's liability for the activities of its foremen, the
assistant, foreman,9 and Gandara,10 its personnel director, is clear.
We think it equally clear that the respondent is accountable for, the
activities of Aguilar. As heretofore noted, Aguilar had been. especially
active in the Association, serving as its treasurer. Also, as previously
stated, both Gandara and Aguilar admitted that Gandara requested
Aguilar to aid him in conducting the investigation ordered by the
respondent to determine whether the solicitation rule was being vio-
lated, but the record does not establish precisely the date upon which
this request was made. The respondent contends that it requested
Gandara to make the investigation following a complaint by Muro
The assistant foreman instructed and relayed orders to the laborers ,working under his
direction . In the absence of the regular foreman, the assistant foreman assumed his duties.
It is clear from the testimony of employee Ledezma that he regarded the assistant fore-
man as his supervisor and as a representative of management.
10 Gandara , in addition to the duties previously noted , had authority to recommend the
hiring of employees . Vice-President Harris admitted that the respondent did not consider
Gandara to be an ordinary employee and that Gandara assisted the respondent 's officials in
formulating company policy.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around the first of , May that the Union was being permitted privileges
previously denied him . Gandara testified that it was after he was
instructed to make the investigation that he first requested Aguilar's
aid. Aguilar first testified that Gandara had requested his services in
"March or May. I really don 't know." Aguilar later testified that he
questioned only Caldera and , Monsisvais about the Union's solicitation
and that such questioning , which occurred on May 13, 1942, was done
within "a day or so" of the time that Gandara had asked him to make
'the investigation . However , as is shown in many instances throughout
this decision , Gandara and Aguilar questioned employees about their
union'membership and activities prior to' May and Aguilar questioned
many employees , in addition to the two whom he admits interrogating.
As previously shown, as early as, January 1942, Aguilar informed
Lopez that he had been instructed by Gandara:to inform the employees
that the respondent would, not pay union wages. In view of Aguilar's
admitted hostility to the Union ,- his close association with Gandara;
his past participation, in the company -dominated Association, the
-indefiniteness 'of the' testimony regarding i the` ^ date when Gandara
solicited ' Aguilar's aid , - and, the fact' that 'the' respondent's efforts to
ascertain the, identity of employees prominent in the Union started in
January 1942 and, continued on through May 1942 , we' find that-Agui-
lar' was acting with the sanction . and approval of the, respondent
as,Gandara 's'assistant in' the';respondent 's effort, to stifle the orgariiza-
tionalefforts' of the' Union throughout this period . ' We accordingly
find- that Aguilar 's statements and activities - are, attributable to' the
respondent.'
We have found above that both Aguilar' and Gandara informed
employees that the, respondent was receiving reports of the, Uriion's
meetings . Aguilar's accurate information ; concerning the number of
union ^ members in February, confirms the truth' of these statements.
Such activity is not, foreign to the respondent , since we found' in the
prior case, that the respondent was engaging in surveillance of union"
meetings : Upon, all the, evidence we find-that; the respondent obtained
and received'reports^of the Union 's'nieetiiigs. • ,
We find that the respondent , by interrogation of employees' with
regard , to-their membership in the Union; by, statements, threats, grid
activities of Gandara , Aguilar, and, its supervisory, employees dis-
paraging the Union ; by obtaining and receiving reports of the Union's
meetings , by its discriminatory promulgation and enforcement of the
no-solicitation rule, as hereinafter , found,, and by-other acts outlined
above, has interfered with , restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
PEYTON PACKING COIVTPANR', INC. - , 843
B. The no-solicitation rule and the discriminatory discharges
As previously stated, in January 1942 the respondent posted a notice
in the plant prohibiting solicitation of any kind by an employee "while
on property of this company, or while working on company time,"
upon pain of discharge. No attempt was made by the respondent to
enforce this rule until May 1942, when upon receiving a complaint
from Muro that the Union was being permitted to solicit whereas he
had formerly been denied similar privileges, the respondent instructed
Gandara to conduct an investigation to determine whether the rule
was being violated. On May 15, and within a few days thereafter,
numerous employees were called into the offices of the respondent, and
in the presence of Harris and other officials of the respondent, as well
as a stenographer who made a record of the interviews, were questioned
as. to whether they had solicited for the, Union on the respondent's
premises. As a result of the investigation nine employees were there-
after discharged for alleged violation of the rule," although six of the
men detlied at the interviews, and all but one denied at the hearing,
that they had violated the rule 12 The respondent, allegedly discharged
the employees in reliance upon affidavits secured by Gandara and
Aguilar from other employees who named the nine in question as hav-
ing solicited the affiants on company premises.
The Trial Examiner found that the respondent had not engaged in
unfair labor practices in discharging these nine employees. We do
not,agree with this conclusion. The Act, of,course, does not prevent
an employer from making and enforcing reasonable ;rules covering the
conduct of employees on company time. Working time is for work.
It is. therefore within the province of an employer to ;promulgate and
enforce a rule prohibiting union solicitation during working hours.
Such •a rule must be presumed to be valid in the absence, of evidence
that it was-adopted for a discriminatory purpose. It is no less true
that time outside working hours, whether before or after work, or
during luncheon or rest periods, is.an employee's time to use as he
wishes without unreasonable restraint, although the employee is on
company property. It is therefore not within the province of an em-
ployer to promulgate and enforce a rule prohibiting union solicitation
by an employee outside of working hours, although on company prop-
erty. Such a rule must be presumed to be an unreasonable impediment
to self-organization and therefore discriminatory in the absence of
" Gregorio Alarcon , George Arciniaga , Manuel Barreda , Nazarlo Diaz, Eugenio Lopez,
L. J. Mena, Eduardo Ochoterena , Manuel Quintana , and Manuel Renteria.
il Diaz admitted only that he had asked fellow employees to attend union meetings ;
Mena answered in the affirmative when questioned by the respondent on May 15 but testi-
fied at the hearing that he did not understand English very well and had not understood the
question ; Ochoterena testified that he had 'been so frightened that he had answered all
questions in the affirmative without realizing their import Ochoterena further testified
that he could not remember any occasion when he had violated the rule.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence that special circumstances make the rule necessary in order
to maintain production or discipline. 13
The respondent has failed to make any showing of special circum-
stances in.this case which would make necessary a rule forbidding
solicitation on an employee's time for the sake of efficiency, discipline,
or production. The only explanation offered by the respondent's
officials for the adoption of the rule was that upon reading the Supreme
Court's decision in the Virginia Electric amd Power Co., case, it
"occurred" to them that solicitation on company premises might involve
the respondent in another Board hearing. Although the Board's
decision rendered 7 months earlier had dealt with the respondent's
liability for union activity on company time,14 the respondent alleged
that.possible liability for such activity "didn't occur to us" at that
time or in the, intervening months. Under all the circumstances we
cannot accept as true the respondent's explanation for the posting of
the rule. The explanation, if true, does not justify the rule prohibiting
solicitation' on employee's time. Numerous circumstances, however,
wariaiit the inference, which we draw, that the respondent's purpose
in promulgating,and'enforcing the rule, was to prevent the self-organ-
ization' of its employees. , This conclusion is clearly demonstrated by
the manner 'in' which the respondent enforced the, rule. If the rule
had been promulgated for a bona fide purpose, e. g'., to prevent impair-
rnent of production, such purpose would have been served by disciplin-
ing, in a reasonable manner, those employees who'were apprehended
in the.act of violating the rule. The respondent made no attempt to
follow such a policy in administering the rule. At no time was its
supervisory force "urged' to report infractions ' of the rule or to take
immediate disciplinary action with regard to employees caught violat-
ing the rule, reasonable, methods ordinarily pursued in'the enforcement
of rules relating to, conduct 'of employees. Instead the respondent
suddenly launched an investigation through Gandara and Aguilar to
discover, prior violations of the rule. Members of the Union were thus
discharged on the basis of affidavits surreptitiously secured from other
employees' alleging that those discharged had engaged in solicitation
months bef4e16 Moreover, ' as we have previously found, Gandara
and Aguilar did not limit their inquiries to violations of the rule but
also sought in the course of the investigation to ascertain which of the
employees were members of the.Union,'irrespective of whether or not
such employees had engaged in solicitation.
'a See N. L. R B . v.,Wilham Davies Co,, 12 L. R. R. 367 (C. C. A 7 ), decided April 21,
1943.
14 The Board found that the respondent , inter alga, had aided in the formation of an in-
side union by permitting activities in behalf of the inside union during working hours, while
denying similar privileges to an affiliated organization. Nothing in that decision indicated
that the respondent was required to prohibit solicitation on employee's time
16 Gandara secured one of the affidavits from Gonzalez , by going to Gonzalez 's home and
awakening him
ti
1PEYTON PACXING COMPANCY, INC. 845
Other aspects of the enforcement of the rule likewise establish the
respondent's discriminatory motives. We cannot credit the respond-
ent's contention that it had no knowledge of violations of the rule
until Muro's complaint was received in May. Witnesses called by the
respondent testified, without contradiction, that they had reported
violations of the rule to Gandara as early as February 1942,16 and most
of.the witnesses called by the respondent testified that they had been
solicited on various dates between January and April. Thus, while the,
respondent knowingly overlooked violations of the rule for several
months, the respondent in May began a sudden and vigorous enforce-
ment of the rule, even to the extent of discharging employees, whose
only violations,- so far as the record shows, occurred many months
before. This seemingly unexplainable action becomes clear only when
considered in the light of the Union's success in organizing, its mem-
bership drive having reached a peak early in May. In view of our
prior finding that the respondent was receiving reports of union meet-
ings, it must be assumed that the respondent had knowledge of the
Union's majority status. This conclusion is corroborated by Miles'
admission that Harris informed him in the latter part of April or the
first`of May that there was "a lot' of activity apparent around here,
and it seems that there is trouble brewing." Moreover, Williams, the
Union's organizer, testified without contradiction that beginning on
May 11, 1942, he called Peyton, chairman of the respondent's board of
directors, almost daily, although Williams did not reach Peyton until
May 19, because the latter was out of town 17 Williams, according,to
his 'testimony, informed Peyton on, May 19 that the Union had a ma-
jority and requested recognition and a bargaining conference, and
Peyton summarily dismissed the request. Although Peyton denied
that Williams had made the statements -as alleged by Williams, the
events occurring immediately thereafter support Williams' testimony,
which 'we credit. On the same day, Williams wrote the respondent
requesting recognition and a bargaining conference. In response to
this request, Peyton replied by the letter set forth above, which, fol-
lowing the pattern of -the respondent's numerous other anti-union
activities, established' the respondent's disregard for its obligations
under the Act. Thus faced with the necessity of recognizing the Union
and bargaining with it, 'a duty which the respondent was unquestion-
19 Employee Ramon Morales testified that he reported and signed it statement in Febru-
ary 1942 that his membership had been solicited in the Union during working hours on
company premises . Employee Jenovevo Olivas testified that he reported similar activities
in March or April 1942. Gandara admitted that he "had heard some time back in March,
from Raul Aguilar that they [i e, Aguilar and Lopez] used to have some discussions
about unions , and I told Raul at the time that I didn't want to hear about it." Although
Morales may have been mistaken as to the date of his affidavit , nevertheless it is clear
that the respondent had knowledge of the violation of the rule several months prior to May.
11 Williams testified without contradiction that he spoke to a man who identified himself
as. "Miles."
k
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably unwilling to .fulfill, the respoldent was carrying out its threat
to "meet that situation when and if it,arises," by discharging union
members in order to destroy the Union's majority. The fact that the
respondent failed to enforce the rule during the 4-month period after
its promulgation, despite knowledge of infractions thereof, and en-
forced it only upon the realization of the establishment of the Union's
majority in May, further shows the respondent's discriminatory mo-
tives in promulgating and enforcing the rule.
Although we have assumed for the purposes of this discussion that
the nine employees in question violated the rule, as interpreted by
the respondent, it should ,be noted that the evidence adduced by the
respondent to establish the alleged violations is of little probative
value. The respondent failed to introduce into evidence the affidavits
on which it allegedly acted in making the discharges.. Instead it
called various employees to the stand who testified that they had.
been,solicited by one or more of the nine.employees discharged. Two
witnesses were 'called allegedly to establish that Alarcon solicited.
One of,the witnesses placed the solicitation in,February; but Alarcon
did -not Join the Union until April 8. The other -witness identified
the solicitor only as "Gregorio," Alarcon's christian name , but not
an unusual name among these Mexican employees. Two witnesses'
also testified that Lopez solicited their membership. One testified
tliat,the solicitation occurred during 'the luncheon period. The other
witness was Aguilar. Not only have we -found Aguilar an incredible
-witness generally but this .testimony is particularly incredible. 'Lopez.
was the,'leader ;in the Union;movement and 'most be presumed to have
known that Aguilar was not eligible for membership,in the Union,
as well . as knowing of ' Aguilar's anti-union activities. Although
O'ch,oterena admitted when questioned on'May 15 that he had :violated
the',rule ,18 the only witness called :by the respondent to, establish that
he had done so admitted on cross-examination that she 'had not'rre-
ported the violation 'to the respondent until 5 months after the ,dis-
charge and about 2 'weeks before the hearing. • The respondent,intro-,
duced no evidence to establish that it had proof that Mena had violated
the rule 'prior to• the,date he was called into -the respondent' s offices
to Ibe questioned. The sole witness called by the ,respondent to estab-
lish that Renteria had violated the rule testified that the solicitation
occurred on an unspecified date between January and May; -but
Renteria did not join ,the Union until April29. Although each,of the
discharged employees denied that he had "solicited" on company ,time
or property, we,do not find, nor do we consider it,necessary to our
inquiry to find, that none of them had done so, at least within the
19 Ochoterena 's testimony that he had, contrary to the fact , admitted violating the rule
on May 15 because be was so frightened that he answered all questions In the ' affirmative
is In part supported by the fact that he had only joined the Union on May 6.
PEYTON PACKING COMPANY, INC. 847
respondent's broad interpretation of the rule. Nevertheless, the
failure of the respondent to establish that it had reasonable grounds-
for, believing that each of these union members was guilty of violating
the rule prior to his' discharge, coupled with the respondent's failure
to confront the discharged employees with the accusations against
them prior to their discharge, constitutes further evidence of the
respondent's discriminatory motives.
Upon the entire record we are convinced and find that the respond-
ent promulgated and enforced the rule for the purpose of preventing
self-organization and that by discharging Gregorio Alarcon, George
Arciniaga, Manuel Barreda, Nazario Diaz, Eugenio Lopez, L. J. Mena,
Eduardo Ochoterena, Manuel Quintana, and Manuel Renteria, the re-
spondent discriminated in regard to their hire and tenure of employ-
ment; thereby discouraging' membership in'the Union and' interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. The alleged discriminatory discharges
Salome Rios had been employed by the respondent on at, least two
occasions prior to the time of his last employment, which began late -in
January 1942. He -testified. that, he "worked at different times away
back in the basement.- Sometimes a week, sometimes days; for about
a month." On the occasion of his last employment he was first assigned
to the warehouse.- Sometime in February he was transferred to the
feed mill. On April 22, 1942, he joined the Union and thereafter
attended all but one of the union meetings and discussed union affairs
with other employees outside the plant. On April 27, 1942, he was
laid off, for the reason that there was not enough work for him to do.
On the following day the respondent recalled him but, as he was
engaged in an immigration matter, he did not receive the message until
later that day. On April 29 he reported for work and was told by his
foreman that he "didn't have any more work for those days." On
April 30 he again reported for work and, according to Rios, was then
told by his foreman, "You are discharged because you failed to appear
before."
S. N. Chauvet, respondent's vice president in charge of buying and
feeding cattle, testified that it was the -practice of the respondent to
lay off men in the feed mill if the amount of work for them decreased
through the reduction in the number of cattle received, such as occurred
following April 30,1942. The respondent's pay-roll records show that
on April 30 the respondent reduced its staff of 38 men employed in the
feed mill by 3, and on May 7 the force was further decreased by 2
men, and from that date until October 29, 1942, the number of em-
ployees in the feed mill varied from 22 to 3. Four or five of the
848 _ DECISION'S OF NATIONAL LABOR' RELATIONS BOARD
employees in the feed mill are constantly employed to care for equip
ment and machinery, whereas the remainder are -extra employees
employed at common labor.' Rios was -a common laboier during the
period he .worked in the feed mill. In its answer, the respondent
alleges that Rios was laid off ,because of lack of work and that, the
respondent is willing to reemploy him wherever his, services may
reasonably be used. In view of these facts, we find, as did the Trial
Examiner, that Rios was not discharged on April 20, 1942, because he
joined or assisted the Union,. but that he was laid off because of lack of
work in, the feed mill.
Juan Aguilar commenced his employment with the respondent on
November 7, 1938. He joined the Union on March 25, 1942, regularly
,attended the meetings of the Union thereafter, and was active in solicit-
ing memberships., He testified as follows with regard to his discharge
on May 16,1942: Because of illness, he.did not report to work on May
12, 1942, and he did not notify the respondent of-his absence until he
returned on May 13. At that time, he found that his time card was
not in the rack. Upon reporting its absence to the watchmen in charge,
Juan Aguilar was told that his foreman, Stevens, had said that he
"should not go back to work any more." That afternoon when he
telephoned Stevens and asked if he would be reprimanded for remain-
ing away from work, Stevens replied, "I don't know, but come Saturday
either to come to work or to get your check." On Saturday, May 16,
1942, when Juan Aguilar returned to the plant, he was given his
check. It was stipulated that in the week ending February 12, 1942,
Juan Aguilar was absent on February 5, 6, and 9;- that in -the week
ending March 12, he was not at work on March,9 ; that in the week
ending April 9, he was out on April 6; and in the week ending April
30 he did not report on April 27, 28, and 29. He excused his absences
by stating that he fell off a ladder while in the plant and injured his
back and for that reason he remained at home a few days. However,
the record conclusively establishes the fact that his fall from the
ladder occurred in 1940 and not in 1942. Juan Aguilar admitted that
about 15 days prior to his discharge, his foremen, Stevens and Jesse
Morrow, warned him that if he again took leave of absence without
notifying the company, he would be discharged. We find, as did the
Trial Examiner, that Juan Aguilar was discharged by the respondent
because he arbitrarily failed to report for work without • giving the
respondent any notice of his intention to be absent.
Jose Delgado commenced working for the respondent in September
1941. He joined the Union on April 4, 1942, and attended two or
three of its meetings. It is undisputed that between January and,
May 1942, Delgado failed to report for work on several occasions, and
gave no notice to the responaent of his intention to remain at home.-
A
,PEYTON PACKING COMPANY, INC. 849
He attributed his absences to illness., It was stipulated that he laid
off on April 13, 14, and 15. Delgado admitted that when he returned
to work, his foreman warned him that if he again laid off without
giving notice, he would be discharged. On May 11 Delgado failed
to report for work. When he appeared on May 13, he was told to
return on the 15th for his check. He did so and was paid off.. Like
the Trial Examiner, we find that the respondent discharged Jose
Delgado because he failed to report for work without giving the
respondent notice, after he had been warned that such absences would
result in his discharge.
Ignacio Carlos was employed by the respondent on July 16, 1938.
He joined the Union on November 7, 1941, and thereafter attended
all meetings and obtained members for the Union. On May 14, 1942,
Gandara apprehended him in the act of smoking a cigarette in the
second floor lavatory of the plant, in violation of a no-smoking rule
which had been in effect for several years. Immediately thereafter,
he was called to the office and was interviewed by the same inquis-
itorial board of the respondent's officials who were interrogating, the
employees accused of having violated the 'no-solicitation rule. In
response to their questioning, Carlos admitted that he had been smok-
ing in the lavatory and that he knew that he was thereby violating
a company rule. He was summarily discharged forthwith. Although
there is considerable testimony to the effect that it was common prac-
tice for employees to smoke in the second floor lavatory, nevertheless
it is undisputed that the respondent discharged Felipe Anaya,
Stephen Ward, Jr., and Jose Serrano on August 9, 1941, December 5,
1941, and May 20, 1942, respectively, because they were caught smok-
ing on the premises of the respondent in violation of the rule. We
find, as did the Trial Examiner, that the respondent discharged
Carlos because he had violated a rule of the respondent which pro-
hibited smoking on the plant premises. -
Reyes Trujillo began working for the respondent on March 25, 1936,
He joined the Union .on April 8, 1942, and thereafter attended all
union meetings and solicited memberships for the Union. At the time
of his discharge on August 19, 1942, he was engaged in burning hair
off shaved hogs, using in that task a torch similar to the type used
by plumbers. About August 14,1942, Trujillo complained to C. W.
Rathwick, the respondent's first-aid Ivan, that he had a burning sen-
sation in his eyes and that his eyes were tired. He attributed that
ailment to the torch used in his work. Rathwick took Trujillo to
S. A. Schuster, an eye specialist, who examined his eyes, prescribed
eye glasses, and reported to Harris that he could find "no cause for
Trujillo's symptoms other than eye strain,, which was not unusual
for a person of Trujillo's age. Although the Trial Examiner found,
I
850 , DECISIONS OF NATIONAL LABOR' RELATIONS BOARD,,
in accordance with Trujillo's, testimony, that Schuster suggested that
Trujillo be given a task other than torch work, and that Trujillo
was, relieved of the torch work for 2 days and given another job,
the testimony of Schuster, Harris, Rathwick, Florez, and Kessler con-
clusively establishes in our opinion, that Schuster did not make such
a recommendation and that Trujillo continued in his regular work
with the torch. On August 19, 1942, Trujillo refused to perform the,
torch work, and- after a conference with his foreman, Mariano, Florez,
and Plant Superintendent Kessler, his employment was terminated.
We find, as did the Trials Examiner, that Trujillo was discharged'
because he refused to `carry out the instructions of his foreman and
not because of his membership and activity in the Union.
Fidel 'Lara began. his employment with the respondent tin October
1939. He joined the Union on March 18, 1942, and, thereafter attended
its meetings, made speeches, and solicited memberships. At the time
of 'his discharge on September 17, 1942, and for more than a year,
priortthereto, he was employed in the garage as a mechanic's helper.
About 3 weeks-before September 17; 1942, his foreman, George Hof-
meister, instructed him to lubricate a truck, which; according to, Lara,
had been, driven only 37 miles since its last lubrication. It appears
that trucks' and automobiles are normally lubricated" every 500 to
1,000 miles. • However,'Ilofineister testified that the car needed lubri-
cation badly. Lara testified that he had "trouble" with his foreman,'
that he knew more about the work to be done around in the garage-
than did his foreman, that he asserted such an attitude, And that
about 3 or 4 weeks prior to his discharge he' quit his job after his'
foreman had ordered him to follow instructions. He further testified
that when he quit his job he talked with Harris before he left' the
plant, that Harris told him to "cool off," and that as a result of Harris'
intercession with Hofmeister, Lara was put back to work. Hofineister
testified that Lara would not carry out his orders ; that he insisted
on performing his tasks in his own fashion; that he was undepend-
able; that ' it was necessary' to watch him constantly in order to be
certain that the job would,be done correctly; and that for these rea-
sons Lara was discharged. As the Trial Examiner found', Hofmeister's
appraisal of Lara is substantiated, by the latter's own testimony. It
is,also noteworthy that if the respondent desired to rid itself- of Lara
because of his union activities, Harris would certainly not have inter-
ceded for him on the day that Lara quit. Like the Trial Examiner,
we find that Lara was not discharged by the respondent because he
joined and assisted the Union.
Juan Araujd has been in the employ of the respondent for about
3 or 4 years. He commenced as a laborer but within a short 'time he
was promoted to the position -of a packer and later to that of a
PET]0N PACKING COMPANY, INC. - c801
stenciler in the pork-shipping department. For the past year and a
half he has acted as foreman of the pork-shipping department, in the
absence of the regular foreman. He joined the Union on November
4, 1941, and at the time of the hearing was the Union's recording secre-,
tary. Prior to the formal opening of the beef-boning department,
devoted to a new process, such work was performed by the cutters
in Araujo's dehartlnent and Araujo familiarized himself with the,
new process. Araujo testified that late in 1941 Assistant Superin-
tendent J. N. Phillips told him, "Johnnie, you better keep your eyes,
and ears open and see how this is all done because pretty soon it is
going,to be your baby."- About the same time, according to Araujo,
his foreman, Nick Gonzalez, told him to teach another employee to
stencil boxes so that he might succeed Araujo when the latter left
the job. However, employee J. L. Thompson, whose past experience
had been confined to clerical work in the office and in tl'e plant, and
not Araujo, was made foreman of the beef-boning department when
it was formally opened in December 1941.20
Thompson did not prove to be a satisfactory foreman and abandoned
such position' in February or March 1942.21 Plant Superintendent
Kessler testified that late in January 1942 he first considered pro-
moting.Araujo'to'the foremanship of the beef-boning department, and
in February informed Araujo's foreman, Gonzalez , of such intention.
According to Kessler , Gonzalez replied, "Oh my God, you might as
well cut off my right arm. He is the best man I have. It will break
up my gang." In the end, employee Rafael Ramirez, who ,liad been
in the respondent's employ for 10 or 12 years, succeeded Thompson
as foreman of the beef-boning department. The respondent contended,
and the Trial Examiner found, that Araujo was not made foreman
because of the wishes of Foreman Gonzalez to preserve his organiza-
rion intact. In our opinion, this conclusion is open to question since
Gonzalez, late in 1941, as previously noted, instructed Araujo to
teach another employee to perform his job so that the work might
continue without interruption when Araujo was promoted. However,
in view of Kessler's testimony that lie still intends to advance Araujo
as soon as reasonably possible, and also,the significant fact that Ra-
39 The statement is, undenied. Although I 'hillipe was called as a witness by the ie-
cpomlent , he as not questioned with regard to this incident
"The Trial Examiner found that the department rigs opened in Febiuary 1942 . , Araujo
testified that lie "believed " the'departnient opened in Februarv . Ilowevei , Thompson and
Phillips stated that the dep . irtment opened, and Thompson was made to,eman thereof, late
in December after Chiistnias . Kessler testified that it opened in inid-Decenibei Miles
stated that'I'honipson liecaiiie toieniaiion Deccuibeu 72
=i Thonipson testified that lie was foieinan'ot the depaitment until lie ibluntarilt left
the respondent 's employ late in Maicli 1942 Phillips testified that Thonipson was tore-
nian of the depa itnieut until January 20, 1942, vdien lie became ill and was absent from
the plant for ' maybe two icceks " and that «hen lie returned, "he didu t runt to go back
to the boning department ' Miles stated that wlien Thonipson ietuined on January 30,
7942 lie transteried to the lard iehuery
.?7G4i-4"- of 4t)--53
852 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
mirez, who succeeded Thompson as foreman, had worked considerably
longer for the respondent than had'Araujo, we find that the respond-
ent did not refuse to,promote Araujo to the position-of foreman of the
beef-boning department on or about February 1, 1942, because he had
joined and assisted the Union.
Upon the entire record, we, find, as did- the Trial Examiner, that the
evidence is insufficient to warrant the conclusion that Salome Rios,
Juan Aguilar, Jose Delgado, Ignacio Carlos, Reyes Trujillo, and Fidel
Lara'were discharged and Juan Araujo was not promoted because of
their membership or activities in behalf of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in-Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce•ramong 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 the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action which, we find necessary to effectuate the policies
of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Gregorio Alarcon, George Arci-
niaga, Manuel Barreda, Nazario Diaz, Eugenio Lopez, L. J. Mena,
Eduardo Ochoterena, Manuel Quintana, and Manuel Renteria. In
order to effectuate the purposes and policies of the ;pct, we shall order
that the, respondent offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and make 'them
whole for any loss of pay they may have suffered by reason of the
discrimination by payment to each of them of a sum of money equal
to the amount he normally would have earned as wages during the,
period from the date of the discrimination against him to the date of
the offer of reinstatement, less his net earnings 22 during such period.
In accordance with our usual practice, the period from the date of the
By "net earnings " is meant earnings less expenses , such -'as for transportation, room,
and board incurred by an employee in connection with obtaining work -and working' else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See'Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2.790 , 8 N L. R. B 440 Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. N. L R B , 311 U. S. 7.
PEYTON PACKING COMPANY, INC. - - 853
Intermediate Report to the date of the Order herein will be excluded
in computing the amount of whatever back pay each of the employees
discriminated against is entitled to have, since the Trial !Examiner
did not recommend their reinstatement with back pay.23
Since we have found that the respondent did not discriminate with
respect to the hire and tenure of employment of Salome Rios, Juan
Aguilar, Jose Delgado, Ignnacio Carlos, Reyes Trujillo, Fidel Lara,
and Juan Araujo, Ave shall order that the complaint be dismissed as
to them.
Upon-the basis-of the foregoing findings of fact, and upon the entire
recor,l in the case, the Board makes the following :
CONCLUSIONS oF LAIN'
1. Amalgamated Meat Cutters and Butcher Workmen of North
America, Local #606, affiliated with the American- Federation of
Labor, is a labor organization, within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire -and tenure of employ-
ment of Gregorio Alarcon, George Arciniaga, Manuel Barreda, Na-
zario Diaz, Eugenio Lopez, L. J. Melia, Eduardo Ochoterena, Manuel
Quintana, and Manuel Renteria, and thereby discouraging member-
ship in Amalgamated Meat Cutters and Butcher Workmen of North
America, Local '#606, affiliated with the American Federation of
Labor, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section S (1) of the Act.
4. The aforesaid unfair labor practices ale unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
th e' A ct.
5. The respondent has not discriminated with respect to,the hire and
tenure of employment of Salome Rios, Juan Aguilar, Jose Delgado,
Ignacio Carlos, Reyes Trujillo, Fidel Lari, and Juan Araujo.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations,Act,
the National Labor Relations Board hereby orders that the respond-
Ct' `Mnttit •of E'R Heffelfnge,,Compan+l.Inc and United IVoli Paper Crafts of North
Awcrico, Local So. G. 1 N I. R B. 701.
854 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
ent, Peyton Packing` Company, In., El Paso, Axas, its officers, agents,
successors, and assigns shall:.
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, Local #606, affiliated with the
American Federation of Labor, or any other labor organization of its
employees, by discharging or in any other manner discriminating in
regard to their hire and teiiurc of employuienl, or any term or con-
dition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing. and'to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act: -
(a) Offer to Gregorio Alarcon, George Arciniaga, Manuel Barreda,
Nazario Diaz, Eugenio Lopez, L. J. Mena, Eduardo Ochoterena,
Manuel Quintana, and Manuel' Renteria immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice 'to their seniority and other rights and privileges;
(b) Make whole each of the employees named in the pi-eceding
paragraph for any loss of pay he may have suffered by reason of the
payment to him of a sumrespondent's discrimination against him, by
of money equal to the amount which he normally would have earned
as wages during the period froin'the date-of the respondent's discrimi-
nation against hire to the date of the Intermediate Report herein
and during the period from the date of this Order to the date of
the respondent's offer of reinstatement, less his net earnings during
such periods :
(c) Post immediately in conspicuous places at its El Paso, Texas,
plant, and maintain for a period of at least sixty (60) consecutive,
days from the date of posting, notices in English and in Spanish to its
employees stating: (1) that the respondent will not engage in the
conduct from•which it is ordered to cease and desist in paragraphs
1 (a) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in,paragraphs 2 (a) and (b) of this Order;
and (3) that its employees are free to remain or become members of
Amalgamated Meat Cutters and Butcher Workmen of North America,
Local #606, affiliated with the American Federation of Labor, and
that the respondent will not discriminate against any employee be-
cause of membership or activity in that organization;
TEF'TO\ PACKING COMPANT, INC. - 855
v -
(d) Notify the Regional Director for the Sixteenth Region in
Writing, within ten (10) days front the (late of this Order, what steps
the respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as,it alleges that the respondent discriminated
in regard to the hire and tenure of employment of Salome Rios, Juan
Aguilar,, Jose Delgado, Ignacio Carlos, Reyes Trujillo, Fidel Lara,
and Juan Araujo.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Order.