San Antonio Retail Merchants Association

National Labor Relations Board - Board Decisions

Jan 7, 1975

216 N.L.R.B. 59 (N.L.R.B. 1975)

SAN ANTONIO RETAIL MERCHANTS ASSN. 59
San Antonio Retail Merchants Association and inter-
national Union , United Automobile , Aerospace &
Agricultural Implement Workers of Ameri-
ca-UAW. Case 23-CA-4980
January 7, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 28, 1974, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.
We do not adopt the Administrative Law Judge's
conclusion that Respondent violated Section 8(a)(3)
of the Act by discharging Mary Louise Arriaga. We
think he misconstrued some significant portions of
the evidence pertinent to Arriaga's discharge.
Arriaga was a longtime, competent employee who,
over a period of 22 years, has risen to a position
where she was considered a "lead operator" in
Respondent's credit bureau. She was assigned, in
addition to her own work as a long-distance
operator, the occasional task of investigating com-
plaints and rectifying errors committed in her
department. In August 1973, she began to be the
object of complaints concerning her own work, and
these complaints continued throughout the period of
November 1973 to January 1974, during which she
was instrumental in organizing her fellow employees
into the Union which won a representation election
on January 24, 1974. Aside from Respondent's
coercive conversations with Arriaga and one other
employee,2 as described in the Administrative Law
Judge's Decision, Respondent committed no unfair
labor practices during the organizational and pre-
election campaign. Arriaga was,dischargedion January
28, 1974, after the election and after a flood of
complaints about her work habits had culminated in
two written complaints received subsequent to the
election. They confirmed the fact that she had
continued to mishandle her job after being repri-
manded on several occasions for identical conduct.
That numerous complaints were received concern-
ing Arriaga's performance, from out-of-town credit
bureaus who regularly call Respondent for credit
reports from its locale, is undisputed; nor is it
contended that these complaints were solicited by
Respondent. Most of the complaints were that
Arriaga, upon receiving a long-distance call request-
ing a credit check, would put the caller on "hold"
and keep her waiting for an inordinate amount of
time at the expense of the long-distance caller.
The Administrative Law Judge credited Zepeda's
testimony that, after he received some complaints
about Arriaga's practice of keeping incoming long-
distance callers on "hold" for unusual periods of
time, he watched her and saw that she would stop
and talk to other operators while she was supposed to
be looking for the appropriate credit files. He called
this to her attention and she appeared, repeatedly, to
be nonchalant about it. The Administrative Law
Judge explains Arriaga's nonchalance by characteriz-
ing Zepeda's admonishments as "mild." Such an
explanation notwithstanding, it hardly seems strange
that Zepeda's formerly lenient attitude toward
Arriaga would be hardened by these episodes.
The Administrative Law Judge discredited Zepe-
da's testimony that, although the Respondent had
received other complaints about its service, no
complaints had referred to any specific employee
except Arriaga. On the other hand, no evidence was
produced that would suggest that other employees
engaged in conduct comparable to Arriaga's. Even if
Zepeda's testimony is not literally accurate, the
record before us indicates that Arriaga was in a class
by herself in repeatedly failing to abide by the
required standards for handling incoming calls.
In what is perhaps a suggestion that some of the
complaints against Arriaga were cases of mistaken
identity, the Administrative Law Judge notes that
two employees credibly testified that they "frequent-
ly" received calls wherein the caller confused them
with Arriaga. Both testified, however, that whenever
this happened they corrected the caller. In fact, the
established procedure was for the operator on each
side of the line to identify herself to the other for the
purpose of keeping records of the calls. Significantly,
there is no evidence that Respondent was ever
informed that there was reason to doubt Arriaga's
responsibility for the actions complained of.
The allegation of discriminatory motivation is
I The Administrative Law Judge inadvertently stated that Irma Marti-
nez, one of General Counsel's witnesses, testified concerning a talk with
Respondent's former manager , Tarin. Martinez testified about conversa-
tions with Tann 's successor , Zepeda, but not with Tarm.
2 One hundred and ten employees voted in the election.
216 NLRB No. 9
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arguable only because Respondent did not discipline
Arriaga until after the Union won the election and
Zepeda, had made a statement to her that could be
construed as a threat to retaliate against her
personally if the Union won.3 These facts, while they
might be persuasive standing alone , are counterba-
lanced by Respondent's receipt of the two final bona
fide, written complaints from the managers of the
sister credit bureaus with whom Respondent does the
most business . The fact that these managers finally
put their complaints in writing is itself indicative, and
one of them expressly characterized the problem as
"severe" and asked Respondent to take "corrective
action ." In these circumstances , we cannot find that
the reasons assigned by Respondent for the discharge
were pretextual and we conclude that the allegation
of a violation of Section 8(a)(3) has not been proved
by a preponderance of the evidence.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
San Antonio Retail Merchants Association, San
Antonio, Texas, its officers , agents, successors, and
assigns, shall take the action set forth in said
recommended Order as herein modified:
1. Delete paragraphs A, 1 and 2 and renumber
present paragraphs A, 3, 4, and 5 accordingly.
2. Delete paragraphs B, I and 2 and renumber
present paragraphs B, 3 and 4 accordingly.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER JENKINS , dissenting:
I cannot agree with my colleagues' conclusion that
Respondent discharged Mary Louise Arriaga be-
cause of complaints about her work performance.
The credited evidence in this case, rather, leads
inevitably to the conclusion that the real reason that
Respondent discharged Arriaga was in retaliation for
her union activity and that the reason assigned by the
Respondent for the discharge was pretextual. My
colleagues agree that Respondent violated Section
8(a)(1) of the Act when George Zepeda told Arriaga
in effect that he would retaliate against her personal-
ly if the Union won the election . The Union won the
election on Thursday, January 24, 1974,4 and
Zepeda, true to his word, retaliated immediately and
in the most direct and conspicuous manner by
discharging Arriaga on January 28, 1974, the second
workday after the election. But Zepeda's threat to
discipline Arriaga personally if the Union won the
election and the consummation of that threat merely
constitute a part of the great mass of credited
evidence which establishes that the discharge of
Arriaga violated Section 8(a)(3) and (1).
A review of the credited evidence reveals that Mary
Louise Arriaga was a well-regarded and competent
employee of Respondent for 22 years. She had risen
to a position where she was considered a "lead
operator" and one of three primary long-distance
operators in Respondent's credit bureau. She was so
well thought of that Respondent had assigned her the
additional task of investigating complaints and
rectifying errors committed in the department in
which she worked.
Beginning in November 1973, Arriaga assumed a
leading role in the Union's organizing campaign by
arranging several meetings between the Union and
Respondent's employees. At the second such meet-
ing, on November 15, 1973, Arriaga was elected
chairman of the organizing committee. On Novem-
ber 26, 1973, Union Organizer Roy Hernandez spoke
with Respondent's manager , T. Tarin, and told him
that the Union had signed authorization cards from
80 percent of the employees and requested recogni-
tion after a card check. Tarin was at first receptive to
this method of determining if the Union represented
a majority of the employees but later, after consulta-
tion with his attorney, he notified the Union that it
should secure recognition by an NLRB election.
Thereafter, on November 29, 1973, Arriaga and
employee Irma Martinez spoke with Zepeda, who
succeeded Tarin as manager after Tarin retired on
March 1, 1974. Both Arriaga and Martinez were
wearing large union buttons stating that they were
members of the Union's organizing committee.
Arriaga told Zepeda that she did not want him to
think the employees were out to hurt the Respon-
dent, it was just that they wanted to better them-
selves . Zepeda replied that he was disappointed that
the employees were seeking outside representation
rather than coming to management directly.
The next day, November 30, 1973, Zepeda instruct-
ed Arriaga to see Tarin in his office . Tarin told
Arriaga he was disappointed that the employees were
seeking outside representation and asked Arriaga
what the employees wanted. When Arriaga described
some of the things the employees wanted, Tarin
responded by asking her why she had not come to
him to ask for a raise. Later Tarin asked her how
much she was making and then said that maybe
something could be worked out without the Union.
3 On the other hand, if discipline had been administered to Arriaga 4 Respondent filed objections to the election which were overruled by
before the election , it arguably could have been ascribed to a calculated the Regional Director and the representation case is now before the Board
effort to defeat the Union in a separate proceeding.
SAN ANTONIO RETAIL MERCHANTS ASSN. 61
Arriaga then told Tarin that this was not just
between the two of them but that other employees
were involved. Tarin then asked Arriaga who was on
the organizing committee and also asked Arriaga to
talk with the other employees and have them come to
him to see what could be worked out. Arriaga then
complained that Tarin did not permit employees who
worked for the Company to be promoted. Tarin
replied by asking Arriaga if she wanted to be a
supervisor. She answered, "No, not now. You should
have asked me that 10 years ago." The meeting
ended.
Later, Arriaga spoke with the other employees and
called Union Organizer Hernandez who said that the
meeting Tarin suggested would be all right if he
could be present. Tarin would not agree to have
Hernandez present and the meeting never took place.,
A few days later , on December 5, 1973, Zepeda
asked Arriaga to come to his desk. The credited
evidence shows that Zepeda told Arriaga "he did not
want the Union, that he could talk with Tarin and
tell him what he wanted. Tarin could write all this
down and have his lawyer sign it, and we could have
all we wanted without the Union. . . ." Zepeda then
told Arriaga that Tarin would be reti ing soon and
that the Respondent's board of directors had a
meeting and they had named him the new manager.
He went on to tell Arriaga that she could help him
and he could help her, that she was the "one person
that has a lot of influence on these girls and you can
help me to disencourage [sic] them . . . against the
Union." Zepeda also told Arriaga that he could
make her a supervisor and increase her pay. Arriaga
responded by telling Zepeda that there was no way
she could discourage the other employees because
she was the organizer and started the whole thing
and that the other employees trusted her and elected
her chairman of the campaign . Zepeda concluded by
telling Arriaga that "if the Union wins, Mary Louise,
I'm going to fight you, and I'm going to fight you
with all I can."
From the foregoing, and the credited evidence as a
whole, it is readily apparent that Respondent was
strongly opposed to having the Union represent its
employees and that Respondent was fully aware of
Arriaga's leadership role in the Union's organization-
al activity. It is also clear that Respondent believed
that Arriaga had a good deal of influence among its
employees and as a result directed much of its effort
at counteracting the Union's organizational activity
by attempting to encourage Arriaga to abandon her
support for and efforts on behalf of the Union. Thus
Respondent hoped that by undermining Arriaga's
support for the Union she would in turn use her
influence to undermine the support for the Union
among the other employees. In attempting to reach
Arriaga, Respondent went so far as to offer her a
supervisory position and an increase in wages and
then, when Arriaga rebuffed Respondent's overtures,
Zepeda threatened to retaliate against Arriaga
personally if the Union won the election. In view of
Respondent's attitude toward the Union, its knowl-
edge of Arriaga's union activity, and its unlawful
offer of benefits to, and unlawful threat of reprisal
against , Arriaga, it is difficult to imagine a more clear
and convincing case for establishing Respondent's
discriminatory motivation when it discharged Arria-
ga shortly after the Union won the election.
Certainly the complaints about Arriaga's work
performance do not counterbalance the picture
presented by the above-described evidence. With a
few exceptions, those complaints occurred following
the advent of the union campaign and the majority of
the complaints occurred prior to the respective offers
by Tarin and Zepeda to promote Arriaga to a
supervisory position and to increase her wages. It is
also significant that, although Arriaga was aware that
a number of complaints had been made about her
work, Respondent did not formally warn her on any
of these matters, nor did Respondent threaten her
with discharge because of any derelictions in her
work performance, as it had threatened her with
discharge because of her union activity. Finally, it is
significant that the final written complaint which
Respondent would have us believe sealed Arriaga's
fate consisted entirely of incidents which were the
subject of earlier oral complaints and made no
mention of any derelictions about which Respondent
was not previously aware .5 Thus I must conclude
that the reason assigned by Respondent for the
discharge of Arriaga was pretextual and that the real
reason for Arriaga's discharge was her union activity.
S The majority's suggestion that any discipline adnumstered against
Arriaga before the election could have been ascribed to a calculated effort
to defeat the Union is misplaced inasmuch as there is no evidence , nor does
Respondent contend , that it had decided to discharge Arriaga prior to the
election because of any derelictions in her work performance.
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 the opportunity
to present evidence and arguments , the National
Labor Relations Board has found that we violated
the National Labor Relations Act. We have therefore
been ordered to post this notice and carry out its
terms.
The National Labor Relations Act gives you, as an
employee, certain rights, including the right to
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in self-organization and to form, join, help, or
be helped by unions. Accordingly, we assure you
that:
WE WILL respect your above-stated rights
under the National Labor Relations Act.
WE WILL NOT interrogate our employees as to
the persons who are members of the Union.
WE WILL NOT attempt to discourage our
employees from remaining members of the Union
by making promises of benefit and threats of
reprisal designed to have its employees abandon
the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any employees
in the exercise of his or her right to self-organiza-
tion.
All of you are free to join or not to join the
International Union, United Automobile, Aerospace
& Agricultural Implement Workers of Ameri-
ca-UAW, or any other union, as you see fit, without
any interference, restraint, coercion, or discrimina-
tion by us in any way, shape, or form.
SAN ANTONIO RETAIL
MERCHANTS ASSOCIATION
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This
proceeding was tried before me in San Antonio, Texas, on
May 7 and 8, 1974. The complaint, issued on April 3, 1974,
based on a charge filed by the Union on February 4, 1974,
alleges that the Respondent violated Section 8(axl) of the
Act by interrogating employees concerning their activities
on behalf of the Union; seeking to have employees
persuade other employees to abandon the Union; promis-
ing benefits and improvements in working conditions if
they would abandon the Union; offering certain employees
supervisory positions if they gave up support for the
Union; and discharging employee Mary Louise Arriaga
because she refused to abandon her support of the Union
in violation of Section 8(aX3) of the Act. Respondent
denied the commission of any unfair labor practices but
admitted facts supporting the assertion of jurisdiction by
the Board.
Upon the entire record in the case and from my
observation of the demeanor of the witnesses and the briefs
filed by the parties I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
A. Jurisdiction
During the past 12 months Respondent received gross
revenues of $500,000 and during the same period it
received gross revenues in excess of $50,000 for services
performed for customers located outside the State of
Texas . I find that the Respondent is engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
B. Description of the Company's Operations
Respondent conducts a credit bureau in San Antonio,
Texas, the principal function of which is to provide credit
information on consumer charge accounts to individual
merchants, to credit grantors such as banks, and to other
reporting agencies or credit bureaus. The Company also
performs collection services on behalf of merchants on past
due accounts.
The bureau consists of a number of divisions: the
reporting division provides credit information; the collec-
tion service division provides collection services. The
functions of the reporting division are performed by
telephone operators who receive inquiries from merchants,
credit grantors , or other credit bureaus.
This reporting division is made up of two departments:
there are approximately 60 telephone operators who
handle local inquiries and 5 operators who take care of
long-distance calls. Three of the five long-distance opera-
tors are primarily responsible for providing immediate
consumer information as requested. These primary opera-
tors take care of five lines on a rotary system. The other
two are basically backup operators who generally update
or revise records and then phone this information back to
inquiring callers after such records have been updated.
Each of the backup operators utilizes a straight line phone
with a separate number. When needed to assist the primary
operators the backup employees move to two other stations
the phones of which are tied into the five-line rotary
system. In all, Respondent employs about 111 employees.
For the most part long-distance inquiries come from other
reporting agencies or credit bureaus seeking information
concerning service subscribers.
The normal procedure for processing incoming long-
distance calls is as follows: the inquiring operator identifies
her firm or bureau and gives her name and/or operator
number. The consumer information requested is described
to Respondent's operator including the name of the
consumer, his address, employment, and credit references.
The Respondent's operator identifies herself by name
and/or operator number in order to maintain a record of
who handled the inquiry in the event some followup
information or services becomes necessary. Upon receiving
the inquiry, Respondent's operator puts the phone on
"hold," pulls the consumer credit record from the master
files and reports this information back to the inquiring
operator. Respondent's consumer records are maintained
alphabetically and are stored in the same room where the
operators have their switchboards.
In most cases, Respondent's operator secures the
requested information while the caller waits on the line.
Respondent has a rule which limits to three the number of
credit reports that can be secured on a single call while the
SAN ANTONIO RETAIL MERCHANTS ASSN. 63
inquiring operator "holds" for the information. If Respon-
dent's operator is • not busy she may accept the inquiries,
but the caller is not allowed to hold while the information
is being secured. Instead, Respondent's operator will call
back after noting the credit information requested.
Inquiries involving larger numbers of credit reports on a
single call are reassigned from the long-distance operators
to other operators for handling.
According to a timestudy of the Respondent's operations
it was found that it normally takes 3 to 4 minutes for an
operator to receive an incoming call, secure the record
from the file, take it to her station, and report the
information to the caller. The service subscriber is
responsible for long-distance costs. Therefore all credit
bureaus, including the San Antonio bureau, stress the
importance of expediting all long-distance calls. In
instances where a record cannot be immediately located,.
Respondent returns the call at its expense. In the nature of
Respondent's business, speed in handling long-distance
calls is important.
a right to form a Union." Z said he was disappointed that
the employees were seeking outside representation rather
than coming directly to management. On the next day,
November 30, Z instructed Arriaga to see Manager Tarin.
She went to see him in his office. He also said he was
disappointed that they sought outside representation. He
asked what the girls wanted. Arriaga told him they wanted
a little better wages, some sick leave, either Saturdays or
alternate Saturdays off and a little more retirement pay.
Tarin said, "if I needed money, why hadn't I come to him
to ask him for a raise." I replied,
I said that he had always told me that he was my
friend, and he knew my situation better than anyone
else, being that I am the head of the household, and I
have two boys . . . and that I wasn't going to come
begging to him to pay me more money.
And then he says, Well, how much - How much
money do you want to make? . . . I said I would want
to make at least a hundred dollars clear.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Auto Workers Union began its organizing campaign
in November 1973.1 As the result primarily of the efforts of
Mary Louise Arriaga, who arranged for union meetings to
be held with Special Organizer Roy Hernandez, a series of
meetings took place. The first meeting was on November
13; the second meeting was held on November 15 at which
time the Union Organizing Committee elected Arriaga as
chairman of the committee. On November 26 Hernandez
went to Respondent's facility where he spoke to the
Company's manager, T. Tarin. Tarin retired on March 1;
he was succeeded as manager by George Zepeda hereinaft-
er referred to as "Z." Hernandez told Tarin that he had
signed union authorization cards from 80 percent of the
employees and he requested recognition after a card check.
Tarin at first was receptive to this method of determining if
the Union represented a majority of the employees but
later, after consultation with his attorney, he notified the
Union that it should secure recognition by an NLRB
election. The election (Case 23-RC-4038) took place on
January 24, 1974, and resulted in the Union's receiving 61
votes with 49 voting against representation. Respondent
filed objections to the election which were overruled by the
Regional Director. This case is now before the Board for
review. The representation matter is not before me.
B. Respondent 's Independent Violations of Section
8(a)(1)
After the day's work on November 29, Arriaga and Irma
Martinez spoke to Z. Both employees were wearing large
union buttons with the legend on the buttons stating they
were members of the UAW Organizing Committee.
Arriaga was the principal spokesman. She told Z that just
because the employees were forming a union they did not
want him to think they were out to hurt the Company. "It
is just that they [sic] want to better ourselves, and we have
And then he said, Maybe we can work something out
without the Union.
I said, Well Mr. Tarin, this is not just between you and
1. There are too many people involved, and I would
have to consult with the organizing committee to see if
they are willing to come in and speak with you... .
And then he did ask me who was in the organizing
committee.
I told him, There is myself, there's Maggie Perez, Anna
Maria Cantu, Irma Martinez, Mary James and Pearl
Schriewer.
Tarin then asked Arriaga to talk to the girls so they could
come in here and "talk with me to see what we can work
out." Arriaga then launched into a complaint that Tarin
did not permit employees who worked for the Company to
be promoted . Instead he hired young boys just out of high
school to come in and be trained by the older employees.
Whenever they had questions they came to the experienced
girls and they then became supervisors . Tarin replied,
"Well do you want to be a supervisor?" She answered,
"No, not now . You should have asked me that 10 years
ago."
Arriaga spoke to the girls and called Hernandez who said
such a meeting would be okay if he could be present.
Ari iaga reported this information to Z. She also told Tarin
on the phone what Hernandez had to say . Tarin said he
could not have Hernandez present because then he would
have to have his lawyer present also. The following
morning Z asked to see Arriaga . They met alone in the
back room in the lounge . Z told her he thought the girls
made a mistake by not speaking to Tarin . No committee
meeting with Tarin took place.
On December 5, Z asked Arriaga to come to his desk.
They were alone. Z told her "he did not want the Union,
I All dates are in 1973 unless otherwise stated.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he could talk to Tarin and tell him what we wanted.
Tarin could write all this down and have his lawyer sign it,
and we could have all that we wanted without the Union
and I told him that without the Union who would enforce
these things that we wanted?"
He then told Arriaga that Tarin would be retiring soon
and that he would be taking over. Arriaga replied that
Tarin had said he was going to retire for several years but
had not done so and that she could not believe he would
retire. Z said the board of directors had a meeting and they
had named him and that
I am to take over, and Mary Louise you can help me
and I can help you. . . . I need people like you and
Irma Martinez that I can trust to help me when I take
over.... You're the one person that has a lot of
influence on these girls and you can help me to
disencourage them. . . . He said to disencourage the
girls against the Union. And he says, We can - I can
make you - He said I can make you supervisor of the
long distance department and I will make it known that
you are a supervisor.
And then he did ask me how much money are you
making? And then I said, Mr. Z I'm only making $2.35
an hour. And then he says, Do you clear a hundred
dollars?
on the record. Since no explanation as to the failure of
Tarin to testify was offered by the Respondent the
inference is therefore permissible and made that, if called,
Tarin's testimony would have been adverse to the
Company.2
Z flatly denied he had offered the girls supervisory jobs,
an increase in wages so that they both would earn "one
hundred dollars clear" or that the offers were made
conditioned on the employees relinquishing their support
of the Union. Z further denied that he had told Arriaga
that if the Union won he "would fight her." He did admit
that he told Arriaga that the Company would resist the
Union's attempt to organize. Earlier in his testimony Z told
her that she came to him too late because the Union had
already organized the employees and had requested Tarin
to recognize it on a card check. The logical conclusion
made manifest by the evidence is that Z was urging
Arriaga and Martinez to defect, influence the employees to
do likewise and thus undermine the Union. For reasons
which will be amplified infra I credit the testimony of
Arriaga and the corroboration by Martinez and I discredit
the denials of Z.
Z also told Arriaga that he did not like unions. This
comment was made in the flow of his remark that he would
"fight Arriaga." Z's version of this aspect of his remarks
was that the Company would resist any union effort to
organize the employees.
And I said, No. And he says, well how much would you
want to make? And I said, at least a hundred dollars
plus overtime . Z answered . All right.
Arriaga then said there was no way to discourage the girls
because she was the organizer who started the whole thing.
The girls had elected her to be chairwoman and they
trusted her. The Union was not only for her but it is to help
everyone. Arriaga concluded her recital by saying she
would speak to Irma as he had requested and he told her,
"he did say - he did tell me he did not want the Union,
and he says, if the Union wins , Mary Louise , I'm going to
fight you, and I 'm going to fight you with all I can."
Arriaga spoke to Irma , told her Z said he would make
her a supervisor and that he needed people like Arriaga
and Irma, people he could trust and rely on now that he
was going to have the new position as manager.
Irma Martinez corroborated much that Arriaga had
testified to concerning conversations among Irma , Arriaga,
and Z. In a telephone conversation between Irma and Z, Z
asked her, "Are you clearing a hundred? And I said No,
sir. And he said , Well I can get you a hundred plus
overtime ." Martinez also testified that Z told her he would
make her a supervisor . To these offers Martinez said she
could not accept because , "I just won't sell out. I can't." It
should be pointed out that Martinez steadfastly stuck to
her testimony despite being subjected to brief but vigorous
cross-examination.
So far as the testimony given by both Arriaga and
Martinez concerning talks with Tarin it should be
especially noted that Tarin did not testify . Therefore the
testimony of the girls as to what he said stands unrefuted
C. The Discharge of Mary Louise Arriaga
Arriaga began to work for Respondent in 1952 and
except for leaves of absence due to pregnancies she has
worked for the Company for 22 years. She was one of the
three primary long-distance phone operators. During this
entire span of years Respondent never had a single
complaint about her work until beginning in August 1973,
and continuing until January 28, 1974, when allegedly a
flurry of approximately eight oral and four written
complaints were received by the Company concerning her.
Arriaga was so well regarded by Zepeda that even after a
number of complaints were allegedly received involving
her Z made it a practice to turn the complaints over to her
to be investigated . In this role on one occasion she told Z
she recognized the complaint as referring to her. Two of
the four written complaints did not name or identify her
but Z said these matters concerned Arriaga.
Z testified that he did not warn Arriaga on any of the
matters involving her and certainly never warned her or
threatened her with discharge. Z testified that he told
Arriaga there were too many complaints about her work
and "something had to be done." Upon questioning Z as to
what he meant by telling her something had to be done he
replied that he was thinking of transferring her to another
job. She was never told explicitly that if another complaint
came in on her she would be discharged. In fact it is clear
from the record that she was never even warned because Z
explained that he thought it would be bad labor relations
to threaten an employee with discharge. The most that can
be said is that , despite her denials, she was made aware of
2 K & M Machine Company, Inc., 162 NLRB 83, % (1966); Teledyne
Dental Products Corp., 210 NLRB 435, fn . 19 (1974).
SAN ANTONIO RETAIL MERCHANTS ASSN. 65
the fact that certain complaints had been made about her
handling of long-distance phone inquiries . The burden of
the complaints was that when she answered the phone she
kept the caller on "hold" for an undue length of time. For
example, it was testified by Z that on a number of calls she
did not return to the waiting inquirer at all but left her
holding the phone until the caller hung up. The Company
also claims that on a number of occasions she took 10
minutes before she returned to the phone with the
requested information whereas under normal circum-
stances the requested information should have taken no
more than 3-4 minutes to be properly provided. Arriaga
said she was never warned and no complaints were ever
discussed with her . Z said he talked to her on a number of
occasions and when asked why she did not expeditiously
secure the required information she answered she was
busy. When the same caller made a second fruitless
attempt to secure information from Arriaga which she did
not complete , her answer to Z allegedly was that she was
still busy.
Arriaga further testified that she was never shown any
written complaints until the day she was discharged when
she was shown the last two written complaints lodged
against her. Arriaga said she was so upset and nervous by
being fired that she only glanced at these letters but did not
read them.
It would appear from the totality of the evidence in the
record that while she was aware of some complaints the
admonitions she received were never couched in terms to
put her on notice that a repetition would result in her being
disciplined or discharged . Z testified that he began to
watch Arriaga after receiving some complaints and he
noticed that after she received a call, she would put the
party on "hold," start back to the files, and stop on the way
to talk to various operators while the light continued to
blink on her switchboard . When this was called to her
attention shg would not answer but would complete the job
without comment . Z testified that Arriaga appeared to be
nonchalant about Z 's remarks.
The fact that Arriaga was nonchalant about Z's remarks
is understandable because she did not feel threatened by
Z's mild comments . An example of the gentle way Z
admonished her can be seen by Z's testimony after he had
received one of the complaints against her. He was asked
what he did . He replied, "Well I didn't bawl her out but I
told her to please try to expedite it." Arriaga replied that
she would do the best she could.
The San Antonio office does not open for business until
9 a.m. The practice in the office is not to answer the phone
if it rings before that time but to let it ring. If the phone is
answered the operators were instructed to secure the
information requested and report it to the caller. Z
explained that if the call comes in before 9 a.m. and it is
not answered no toll charges are incurred . Arriaga
answered the phone before 9 a .m. because she said she was
expecting a call . On this occasion she merely informed the
caller that the office was not yet open for business but
made no effort to service the call . This incident formed the
basis for one of the written complaints made against her.
It seems strange that for some of the complaints received
by Respondent concerning Arriaga, Z called upon her to
check out these matters. She did so and reported to Z that
the subject complained of involved her. This occurred a
number of times . In this connection on cross-examination
the General Counsel asked Z:
And at the same time that you tell us that she was not
performing adequately, that you were getting oral
complaints concerning her, you were watching her
talking to other employees when she should have been
working, but you were still asking her to check out
these complaints.
Z answered, "Yes, it was still part of her job. " He also said,
"I regarded her more or less as a lead operator because of
her experience."
There is testimony in the record that each of the three
regular long-distance operators receive approximately 250
phone calls a week. This means that the three operators
handle approximately 750 calls a week give or take some
variances in this number. Projecting this information over
a 50-week year something over 37,000 calls are handled by
the long-distance division. Z testified he received four or
five complaints a year and prior to the Arriaga situation he
never previously received even one complaint which
specifically named an operator by either name or the
operator's number. Much later in his testimony he
admitted that complaints are a problem in every credit
bureau and have been since "day one." It is implausible
that not a single complaint had ever been received by the
San Antonio Bureau which referred to a particular
operator prior to the complaints regarding Arriaga. This
testimony is so improbable and unlikely as to strain
credulity.
Josephine (Josie) Lopez and Patricia Pulido, who are still
employed by Respondent, credibly testified that both of
them frequently received calls in which the caller mistaken-
ly identified them as Mary Louise . This mistake in identity
was not an unusual occurrence . It is to be noted that these
two operators, who appeared as witnesses for the General
Counsel, are presently employed and by giving testimony
adverse to the Company may have exposed themselves to
possible reprisals. It may be said that they testified against
their own interest . I credit this testimony.
I do not discredit the testimony of Margaret Andrade or
Charlotte Roberts both of whom testified for the Respon-
dent. They too are employed by the Company and it was to
their interest to testify the way they did. However, I am
inclined to discount what they said because of their interest
in providing evidence in favor of the Respondent.
D. Credibility
This case poses the difficult question as to who was
telling the truth - the 8(aX3) (Arriaga) or Zepeda, the
Company's manager. Unfortunately, in determining credi-
bility issues, a trier of fact does not have the benefit of any
test that may be applied with absolute certainty that the
result reached will be correct . Under our judicial system,
all that a trier of the facts can do is to give due
consideration to, among other factors the demeanor of the
witnesses , their apparent candor and frankness, their bias
and interest, or the lack thereof, the probability of the truth
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their testimony, and upon consideration of all relevant
factors, give credit where credit appears to be due. After
careful consideration of the testimony I have concluded
that I must credit the testimony of Arriaga over that of
Zepeda. I base this conclusion upon the totality of the
following considerations:
1. Z was inclined to make sweeping unqualified
statements such as that he never received one complaint
naming a particular operator prior to the complaints about
Arriaga . This seems highly unlikely and contrary to the
normal proclivity of people to make errors and then receive
complaints about mistakes we all make.
2. Arriaga and Z have known each other for 22 years.
They are friends. Arriaga, describing an important conver-
sation between them , testified that after she rejected Z's
offer of an increase in wages and promotion to supervisor,
Z said, "they [the employees ] could have all the things they
wanted without a union . . . . If the Union wins Mary
Louise I 'm going to fight you, and I'm going to fight you
with all I can." Z denied he had ever said, "I'm going to
fight you." He asserted I told her we would resist any
union effort to organize . ". . . we will resist through legal
counsel." When Arriaga had her first conversation with Z
about the Union he said it was too late, the Union had
already organized the employees, why are you coming to
me - do you want to get out of it , or words to that effect.
In the second place I regard it as unlikely that Z and
Arriaga, friends of 22 years' standing, would find Z
speaking to her in formal language using words of legal
nicety. Z's testimony, taken in the context described above,
does not ring true.
3. Z testified at length about the fact that he never, in
his long years of employment with Respondent , received
complaints about specific operators . However, while under
searching cross-examination by the General Counsel, Z
finally came full circle and admitted that all credit bureaus,
including San Antonio , receive a large number of com-
plaints . He admitted that he, like all bureau managers, had
received complaints since "day one." This is a glaring
inconsistency. I find Z 's statements in this connection to be
palpably untrue.
4. Z also testified that when complaints began to come
in on Arriaga he gave these complaints to Arriaga to
investigate . He denied he was trying to trap her but
explained - that he called on her to track down these matters
because "she was a sort of lead operator" and had great
experience . I regard Z's course of conduct in this
connection to be utterly unbelievable.
5. Z's demeanor while on the witness stand did not
impress me favorably. He was not candid as explained in
the points supra and his testimony was inconsistent in a
number of crucial areas.
6. Z admitted that he never showed Arriaga any one of
the written complaints made against her until after her
discharge when he showed her only the last two com-
plaints . This too is strange behavior on the part of Z.
Arriaga's demeanor made a good overall impression
although I do not credit her flat denials that she was never
warned . It seems to me that even if Z never threatened her
with discharge or bawled her out, at the very least , she was
aware that a number of criticisms had been made about
her work.
It seems equally clear to me that neither Arriaga nor
Martinez is sufficiently sophisticated to have manufactured
her or his testimony out of whole cloth . I credit their
testimony despite the fact that Arriaga was not correct
when she denied ever having been put on notice that
complaints were made against her . To the extent that a
witness is credited only in part , this is done upon the
evidentiary rule that-it is not uncommon "to believe some
and not all" of a witness ' testimony.3
E. Concluding Findings and Analysis
Respondent, without conceding that it engaged in
independent 8(axl) activity , states in its brief with
considerable emphasis that none of the conversations
involving Z were violative of the Act . It is argued that even
if certain statements were made by Z they were isolated
remarks and not sufficiently serious to warrant the
issuance of a remedial order . Numerous cases are cited in
support of this argument . It is further argued that the
initial discussion had by Z with Arriaga and Martinez was
not only free from unlawful statements or promises ...
but during that meeting Z made it a point to stress
Respondent 's legal posture under the law . The brief also
states that the remarks of Z constitute merely isolated
statements . I disagree.
First, it should be noted that no mention is made about
Taria's statements to Arriaga . The statements attributed to
Tarin and credited by me were a carbon copy of Z's
remarks. The Company did not produce Tarin as a witness
and I have already stated supra that the failure to produce
a material witness gives rise to the reasonable inference
that if Tarin had testified his testimony would have been
adverse to Respondent.
Second, I have read the cases cited in the brief and none
of them are apposite because they are based on facts which
do not include promises of benefit or threats of reprisal. I
have credited the testimony of Arriaga as corroborated by
Martinez that Z offered both of them an increase in wages
sp that each would make "one hundred dollars a week
clear." I have further credited Arriaga 's testimony that Z,
after his offers were rejected by the girls , said, "I'm going
to fight you Mary Louise" and he implemented this threat
by discharging Arriaga . Further, in my view, the testimony
concerning Tarin is mutually corroborative of Arriaga's
version of Tarin's remarks . Nowhere in the record does
Respondent controvert the remarks attributed to Tarin.
The Company's brief also stresses that Z's talks with
Arriaga were merely protected speech, "there being a total
absence of unlawful promises or threats therefrom." It can
hardly be said that promises of $100 clear and promotion
to the position of supervisor coupled with Z's threat to
fight Arriaga, followed by her discharge, is anything other
than a naked threat of reprisal and clear promises of
benefit. Respondent also argues that Z could not have
made such statements because he had been exhaustively
3 N.LP-B. v. Universal Camera Corporate, 179 F.2d 749, 754(C.A. 2,
1950), revised and remanded on other grounds 340 U.S. 474.
SAN ANTONIO RETAIL MERCHANTS ASSN.
instructed as to what he could legally say to his employees
with a detailed list of "do's and don'ts." I reject this
argument as being without merit. The cases are legion in
which careful instructions to management representatives
are not followed as to permissible language that may be
directed to employees.
Also it can hardly be said that lengthy talks, studded
with threats and promises, made by Respondent's manager
and assistant manager, constitute isolated instances. The
remarks of these two top-management men could hardly
be characterized as being innocuous.
Finally, particular attention is called to the timing of
Respondent's discharge of Arriaga. Z told Arriaga that he
would fight her to prevent the organization of Respon-
dent's employees. The Union wins an NLRB election on
Thursday, January 24, 1974. There is an intervening
weekend which brings us to Monday, January 28. Thus
only one workday intervenes between the union victory
and Arriaga's discharge. Against the background of the
facts of the instant case there is more than a suspicion that
Respondent's action flowed directly from the union
victory. To further buttress my conclusion Z testified that
on Friday, January 25 (the next day after the union
victory), he told Tarin that he had decided to fire Arriaga
but would sleep on it over the weekend. Contrary to the
position of Respondent, the receipt of still another written
complaint received on January 28 was not the causative
reason for the discharge. As I view the case, the
precipitating event that sealed Arriaga's doom was the
union victory and not the receipt of another complaint
letter. If Respondent's theory holds water it is impossible
to otherwise account for the delay in discharging Arriaga.
The Company had no practice requiring it to keep Arriaga
in its employ through a series of eight oral and four written
complaints, about her work. The complaints spanned a
period from August 1973 until January 28, 1974. If she was
discharged for cause the cause existed for approximately 5
months. Action against her was not taken until I working
day after the Union's victory.
In conclusion, in order to find Arriaga's discharge to be
discriminatory it is not necessary that her union activity
was the sole element responsible for her being terminated.
It is enough to determine that her discharge was prohibited
by the Act if her union activity was a motivating or
substantial ground notwithstanding that a valid ground
may have arisen for applying disciplinary measures.4 I
expressly find that Arriaga's union activity played a
substantial or motivating, but not necessarily the only, part
which led to her discharge. I therefore find that the reason
given by Respondent for Arriaga's discharge was a mere
pretext. She was discharged in large part because of her
union activity and by so doing Respondent violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
4 N.L.R.B. v. Lexington Chair Company, 361 F.2d 283, 295 (CA. 4,
1966); N.L R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d 948, 950
(C.A. 6,1966).
5 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,
67
2. By its conduct as set forth and found in "III," supra,
consisting of its discharge of Mary Louise Arriaga under
the circumstances described , Respondent has engaged in,
and is continuing to engage in, unfair labor practices in
violation of Section 8(aX3) and ( 1) of the National Labor
Relations Act, as amended. Respondent has also by
interrogation, promises of benefit , and threats of reprisal
sought to have its employees abandon the Union and has
thereby independently violated Section 8(a)(1) of the said
Act.
3. Said unfair labor practices have affected , affect and,
unless permanently restrained and enjoined , will continue
to affect commerce within the meaning of Section 2(6) and
(7) of said Act.
REMEDY
Having been found to have violated Section 8(aX3) and
(1) of the Act in respect to its dismissal of Mary Louise
Arriaga and its failure to reinstate or reemploy her,
Respondent should be ordered to cease and desist
therefrom and to offer her reinstatement to her former job
(or, if no longer available, in that case to an equivalent
job), together with backpay as appropriate, less applicable
interim' earnings , if any, plus interest, computed as
delineated in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), making necessary records available for computa-
tion purposes. Respondent should further be required to
post the usual notice to employees to the effect that it will
repair such violation, and desist from further such
violation and interference with its employees' rights under
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following:
ORDERS
Respondent, San Antonio Retail Merchants Association,
its officers, agents, successors, and assigns, shall:
A. Cease and desist from:
1. Discharging any employee, or failing and refusing to
reinstate or rehire any employee in violation of Section
8(a)(3) and (1) of the National Labor Relations Act,
because said employee has engaged in union organization-
al or other concerted activity protected by and lawful
under said Act.
2. Discriminating against any employee in regard to his
hire, ;enure, or terms and conditions of his or her
employment, so as to discourage membership in, affiliation
with, sympathy for, or lawful activity on behalf of
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America-UAW, or
any other labor organization.
3. Interrogating its employees as to the persons who are
members of the said Union.
conclusions, and recommended Order which follows herein shall, as
provided in Sec. 102.48 of those 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.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Attempting to discourage its employees from re-
maining members of the Union by making promises of
benefit and threats of reprisal designed to have its
employees abandon the Union.
5. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization.
B. Take the following affirmative actions necessary to
effectuate the policies of the Act:
1. Offer Mary Louise Arriaga immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights
and privileges; and make her whole for any loss of pay
suffered in consequence of her discriminatory discharge of
January 28, 1974, in the manner set forth in the "Remedy"
portion of the Decision.
2. Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay and other
6 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the Notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
sums due under and the extent of compliance with the
terms of this recommended Order.
3. Post at its San Antonio , Texas, facility copies of the
attached notice marked "Appendix ." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 23, shall, after being signed by Respondent's
authorized representative, be posted in said premises by
Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
4. Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED, that the complaint herein, dated
April 3 , 1974, be and the same is hereby dismissed with
respect to any unfair labor practices not found to have
constituted violations of said Act.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."