Peyton Packing Co., Inc.

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 of 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 depaitnieut 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 sum respondent'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.