Elsa Canning Co.

ELBA CANNING COMPANY 137 the disputed work of maintaining the electronic components on type setting machines located in the composing room of the McCall Cor- poration plant, Dayton, Ohio 2 The International Brotherhood of Electrical Workers, Local No 1527, AFL-CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Company to assign the above described disputed work to electricians 3 Within 10 days from the date of this Decision and Determina- tion of Dispute, the International Brotherhood of Electrical Work ers, Local No 1527, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether it will or will not refrain from forc- ing or requiring the Company, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute to electricians rather than to machinists Elsa Canning Company and Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, and Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, General Drivers Local Union No 657 Case 23-CA-2109 October $0,1966 DECISION AND ORDER On May 31, 1966, Trial Examiner Owsley Vose issued his Decision in the above entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, all parties filed exceptions to the Trial Exam- mer's Decision and supporting briefs Respondent filed a brief in answer to the Charging Parties' exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three member panel [Chairman McCulloch and Members Brown and Zagoria] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and briefs, the General Counsel's and the Charging Parties' exceptions and briefs, and the entire record in this case, and hereby adopts the findings, con clusions, and recommendations of the Trial Examiner, with the fol- lowing modification 161 NLRB No 9 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found that the Respondent discharged employee Jose Alaniz on September 23, 1965, for cause and not in reprisal for his engaging in union and other protected activities. We disagree. The record shows that Alaniz, at the time of his discharge, had been employed by Respondent for a period of 20' years. He was a known union adherent and had testified against Respondent in an earlier unfair labor practice case. In the instant proceeding, as found by the Trial Examiner, Alaniz, on July 13, 1965, was included in an unlawful layoff. The events leading to the discharge with which we are here concerned occurred after his reinstatement on August 24, 1965. Thus, on September 8, 1965, Foreman Rodriguez observed Alaniz open and eat the contents of a can of tomatoes and green chilies. Rodriguez asked Alaniz, "Jose, how come you're doing this when you're not supposed to."' Alaniz replied that "lie was Hungry." Rod- riguez made no further comment. Again on September 13, Rodriguez saw Alaniz open another can, watched him eat the contents, but said nothing. Finally, on September 23, Rodriguez again saw Alaniz eating a can of tomatoes. On this occasion, Rodriguez told Alaniz to report to him as soon as his replacement arrived. Alaniz did so and Rodri- guez sent him home, telling him to check with Foreman Ruiz the next morning. Rodriguez then informed Ruiz that Alaniz had been sent home early because he found him eating tomatoes from one of Respondent's cans for the third time that month. When Alaniz reported for work that morning, he was sent to General Manager Gavito and told by the latter that he had been caught eating the Com- pany's tomatoes on three occasions and had been warned not to do so. Alaniz replied that he had no knowledge that his conduct was against the rules, and offered to pay for the tomatoes. Gavito said it was not the money, but the fact that Alaniz was repeatedly breaking Respond- ent's rules that made his offenses serious. Gavito then discharged him. In the discharge notice, Respondent indicated that Alaniz had been warned twice about eating company products. On these facts, the Trial Examiner concluded that Alaniz had been discharged because he repeatedly ate the Company's canned goods, despite his foreman's warning to stop. In our opinion, the Trial Examiner's finding that Alaniz had received a prior warning cannot be supported by this record. Any such warning must be found in the mild rebuke given Alaniz by Rodriguez during the brief exchange between them on September 8. The mere statement by Rodriguez that Alaniz was doing something he was "not supposed to" hardly placed Alaniz on notice that his conduct was sufficiently serious to warrant severe discipline if repeated. Quite to the contrary, in view of Alaniz' ELSA CANNING COMPANY 139 response that he was eating the tomatoes because he was hungry, and Rodriguez' failure to make further comment either on that or the sec and occasion when Alaniz was seen eating tomatoes, the impression reasonably cone eyed was that Rodriguez did not iegard the conduct in question as constituting a serious offense, or, indeed, of the type that he could not permit 1 The discharge of Alaniz in the circumst tnces is entirely consistent with an attempt to both establish pretextual grounds for the dis chnrge of a known union idherent, and to impress similarly inclined employees as to the stringency with which Respondent would meet their slightest misconduct Taking full account of the nature of the conduct which precipitated the discharge and the ambiguous actions of Foreman Rodriguez, and considering these factors against Respondent's strong opposition to the Union and history of unfair labor practices, we ire satisfied that the harsh discipline meted out to Alaniz, an employee with 20 years' service, during the period pre ceding the impending election, can only be explained as a further effort on Respondent's part to defeat the Union by discouraging any and ill activities on its behalf Accordingly, we find, contrary to the Z rial Examiner, that Respondent has failed to overcome the prima l acne violation made out by the General Counsel herein, that a pre ponderance of the evidence sustains the General Counsel's contention that the seasons given by Respondent for the discharge of Alaniz were pretextual, ind that he w'ts dischiiged because of his union and other protected activity, in violation of Section 8(a) (3), (4), and (1) of the Act 2 Additional Conclusions of Law Upon the basis of the foregoing findings of fact and the entire rec ord in this case, we hereby adopt the following new Conclusion of Law 3, the present Conclusion of Law 3 being renumbered "3 By discharging Jose Alaniz to discourage membership in or activities on behalf of the Unions, and to discourage Alaniz from giv ing testimony in any National Labor Relations Board proceeding, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3), (4), and (1) of the Act" 1 We expressly reject any view that the eating of tomatoes herein was in violation of any company rule Although Respondent in its brief contends that Alaniz broke its rule against damaging and destroying company property we do not believe that such a rule can be fairly extended to cover the conduct in issue 2In view of our finding herein that Alaniz was discriminatorily discharged we do not adopt that part of the Trial Examiners Remedy cutting off Respondents backpay liability to Alaniz on September 24 1965 Neither do we adopt the Trial Examiners sug gestions in that part of his Decision entitled The Remedy with respect to possible methods of computing backpay for the employees laid off on July 13 1965 As the Trial Examiner himself points out such computations are best left to the compliance stage of the proceeding 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board adopted the Trial Examiner s Recommended Order with the following modifications [1 Add the following as paragraphs 2(a) and 2(b), and consecu tively reletter the present paragraphs [" (a) Offer to Jose Alaniz immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and notify him if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selectin e Serv ice Act and the Universal Military Training 'ind Service Act, as amended, after discharge from the Armed Forces " l"(b) Make whole Jose Alaniz for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement, in the manner established in F TV Woolworth Com pany, 90 NLRB 289, together with 6 percent interest per annum there- on, as prescribed in I8z8 Plumbing tt Heating Co , 138 NLRB 716 " [2 Add the following as the second full paragraph in the attached Appendix A [WE WILL offer Jose Alaniz immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the discrimination against him ] CHAIRMAN MCCULLOCH dissenting in p'lit For the reasons set forth by the Trial Examiner in his Decision, I would affirm his findings is to the discharge of Alaniz on Septem her 23, 1965, and approve his recommendation to dismiss that part of the complaint In all other respects, I concur in the Decision of the Board TRIAL EXAMINERS DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Owsley Vose at Edinburg Texas on January 25-31 1966 pursuant to charges filed on July 19 1965 and a complaint issued on August 27 1965 The complaint as subesequently amended pursuant to an amended charge filed on January 17 1966 presents questions as to whether the Respondent violated Section 8(a)(3) (4 ) and (1) of the Act by laying off or discharging 24 employees and in the case of one of them by reducing his working hours and whether the Respondent violated Section 8 (a) (1) of the Act by pro mulgating certain working rules including an excessively broad no solicitation rule by requesting laid-off employees to acknowledge that they could apply for future employment only as new employees and by soliciting from an employee a state ment for use in support of objections to election which it proposed to file ELSA CANNING COMPANY 141 Upon the entire record and my observation of the witnesses and after due con sideration of the briefs filed by the parties, I make the following FINmNos AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent a Texas corporation operates a plant at Elsa Texas where it is engaged in the processing and canning of vegetables During the year preceding the issuance of the complaint the Respondent sold and shipped more than $50 000 worth of its products to customers outside of Texas and in the same period bought commodities valued at more than $50 000 from suppliers outside of Texas Upon these facts I find as the Respondent admits that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein II THE LABOR OROANIZATIONS INVOLVED The Charpmg Parties Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO and International Brotherhood of Teamsters Chauf feurs Warehousemen and Helpers of America Drivers Local Union No 657 hereinafter called the the Unions are labor organizations within the meaning of Section 2(5) of the Act IH THE UNFAIR LABOR PRACTICES A Background The Unions commenced a campaign to organize the Respondents employees in November 1963 and filed a petition for certification as joint bargaining represents tive on December 17 1963 (Case 23-RC-2190) At the Respondents request, the election was scheduled at the peak of the Respondents midyear tomato season on June 18 1964 In May when the tomato season began the Respondent refused to rehire 13 female production employees who had worked for it year after year as tomato peelers Of these 13 4 employees were again refused employment when they again applied for jobs at the commencement of the September tomato opera tion Previously in February 1964 the Respondent had refused to hire Heriberto Alanis who had worked for the Respondent in the warehouse from 1955 to 1959 These refusals to hire were among the allegations of unfair labor practices con- sidered by the Board in a prior case (Cases 23-CA-1768 and 23-CA-1851) The Board concluded that all of the refusals to hire above mentioned were motivated by antiunion considerations and violated Section 8 (a) (3) and ( 1) of the Act i On January 11 1966 the Court of Appeals for the District of Columbia Circuit entered a decree enforcing the Boards Order in the prior case (by default) In the election which was held on June 18 1964 the Union lost 54 to 93 The Union filed objections to conduct affecting election and these were considered by the Trial Examiner along with the unfair labor practices alleged in the prior case In May 1965 shortly after the Trial Examiner issued his decision in the prior case in which he sustained the Union s objections to conduct affecting the election and recommended that the Board set aside the election, the Unions decided not to await the outcome of the Board s review of the Trial Examiner s findings and recommendations in the prior case and to obtain fresh authorization cards from the employees then working This was done and a letter requesting recognition and the commencement of bargaining negotiations was sent by the Unions to the Respondent on May 18 1965 Enclosed in the letter were photocopies of bargaining designation cards signed in the May 11 to 16 1965 period by 26 of the 44 employees listed on the Respondents payroll that week in the warehouse and pro- duction departments In addition the Unions enclosed photocopies of cards signed by 11 other employees most of whom had been on the Respondent s payroll in 1 The Board further found that the Respondent commencing in December 1963 assigned Juan Garcia one of the leading supporters of the Union to more arduous duties in the warehouse because of his union activities and thereby further violated Section 8(a)(3) and (1 ) of the Act 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recent weeks, but not during, the week ending May 18. No cards sent were signed by any of the Respondent's long-haul drivers or shop employees. _ The Respondent declined to grant the requested recognition. Whereupon the Unions' requested and was granted leave ,to, withdraw its earlier petition for certifi- cation and filed a new petition for certification with the Regional Office. At the hearing on the Unions' new petition for certification which was held on June 24, 1965, the Respondent produced a document in which it projected its employment needs for the rest of 1965 and for all of 1966. This document was offered in support of the Company's position that the election should be postponed until the peak of the midyear tomato season in 1966. The Unions were contending primarily that the election should be held immediately after the close of the 1965 midyear tomato season (involving only the Respondent's regular year-round employees), or, if such a date were not acceptable to the Board, then the election should be held as soon as possible during the 1965 midyear tomato season, which still had about 3 weeks to run, according to,,the,Respondent's projections.' On September 29, 1965, the Board issued a Decision and Direction of Election in which it directed, in effect, that the election be held during the next minor peak of employment at which it was practical to hold an election. At the election, which was held on November 5, 1965, the vote was 22 in favor of the Union to 21 "No" votes, with 18 challenged ballots. Thirteen of the 18 challenged ballots were cast by employees who were found 'to have been unlawfully discriminated against in the prior case. As of this date, ruling has not yet been made on the challenged ballots. In the meantime all of the events set forth below occurred. B. The Respondent promulgation of new work rules The Resp6ndent,'con9uulted'its attorney, and started, drafting, new work, rules on or about June 9, 1965, just a few weeks after the Unions requested recognition and bargaining. Previously the Respondents had not had any written work rules for employees. By June 19 the Respondent had completed drafting its rules and on that day attached to the paychecks of each of its employees a mimeographed copy of its "Rules and Regulations." Joe Gavito, Jr., the Respondent's vice president and general manager, admitted that the promulgation of the rules was prompted by "this labor situation in our plant." Gavito explained at the hearing that he thought the rules were a good idea in order to avoid misunderstanding among the employees. The rules, which are set forth in full in Appendix B hereto, provide for three categories of employee offenses in descending degree of seriousness. Among those offenses in' category I, which render an employee subject to immediate discharge, are "Reporting to work intoxicated," "Insubordination," "Dishonesty or theft of employees' or company's property" and "Fighting." Also included in category I is the following rule: 9.'Solicitation for any cause or the distribution of literature during working hours or in work areas without permission? Category II of the Respondent's Rules subjects an employee to discharge after one warning. Included among the offenses in this category are "Absence from work without supervisor's approval" and "Horseplay." Category III, which subject employees to discharge after two warnings, prohibit, among other offenses, "Unnecessary talking on the job," "Tardiness," and "Cursing." The General Counsel contends not only that the Respondent's no-solicitation rule, rule 9, was invalid because of its excessive breadth, but also that the Respond- ent, by promulgating its rules as a whole at this time was attempting to discourage union organization. In support of the latter contention the General Counsel points to testimony indicating that solicitation for church benefits and other affairs had been quite common in the plant in the past. In view of this fact and the Respond- ent's subsequent antiunion discrimination against a number of its year-round pro- duction and warehouse employees, discussed below, I am in accord with the Gen- eral Counsel's contention that the Respondent promulgated its no-solicitation rule at this time in order to discourage employees from continuing their support of the Union, and that the Respondent's conduct violated Section 8(a)(1) of the Act for this reason. Wm. H. Block Company, 150 NLRB 341, Rowe Industries, Inc., 152 NLRB 70. a In October 1965, the Respondent, upon advice of counsel, amended the above rule by eliminating the words "or in work areas without permission." In this connection see G e; W Electric Specialty Company V. N.L.R.B., 360 F.2d 873 (C.A. 7). ELSA CANNING COMPANY 143 With respect to the General Counsel's contention that the Respondent's no- solicitation rule by,its terms was too broad, I agree that the,rule as originally pro-, mulgated exceeded permissible bounds in that it unnecessarily prohibited all solici- tation:in working areas, regardless of whether done on the employees' time or not. The Respondent has not shown that such a limitation furthered its legitimate, interest in promoting production, order, and discipline. . In view of my findings with respect to, the no-solicitation rule, I find it unneces- sary to pass upon the General Counsel's further contention that the Respondent's rules as a whole were put into effect in order to deter union organization. My Recommended Order will be sufficiently broad to cover any future efforts to squelch organizational activities by means of newly promulgated rules. C. The Respondent's layoff of regular year-round warehouse and production employees during the week ending July 13, 1965 1. The facts The record shows that the Respondent has for many years maintained a regular crew of warehouse employees of from 12 to 20 men who worked year round, and a smaller group of production employees who worked regularly even though the plant was not in production. On July 9, 1965, the Respondent posted on its bulletin board a notice concerning its projected plans for employment in the coming year. With the exception of the figure for the current week, the figures were those contained in the document pre- sented at the representation hearing on June 25. The notice in full is attached as Appendix C. The preamble to the notice is as follows: Witli4'the^ Spring` tomato -pack just about completed and with,the curtailment of our canning'operations for, the, next few months, we are having to reduce our work force considerably. We will not maintain a warehouse crew, as such, during these off-production months. We will maintain a limited number of maintenance employees, long-haul truckdrivers, and a crew of two or three in our truck maintenance shop. For your guidance we list below our projected plans for production and employment for the next year. As our canning operations develop we will employ the required number of employees, based on seniority and ability. Set forth below the preamble in the notice is a table giving the estimated number of employees in four categories, "Warehouse," "Production," "Maintenance," and "Drivers & Shop" for each of the weeks in the period beginning with the week end- ing July 13, 1965, and ending with the week ending July 12, 1966. These figures show that the Respondent planned to have 12 drivers and shop employees, in each week in the coming year, a reduction of just 1 below the figure given for the week ending July 13, 1965, when the Respondent listed 40 warehouse employees and 142 production employees. The table shows that the Respondent planned to have no warehouse or production employees in the second half of 1965, except during 4 weeks in September, when it proposed to have 12 warehouse and 15 production employees, and the last 3 weeks in November, when it proposed to have 12 ware- house and 21 production employees. As the portion of the notice above quoted indicates, the Respondent was com- pleting its midyear tomato peak in the payroll week ending July 13, 1965. The Respondent's payroll records list 179 warehouse and production employees in the week ending July 13,, and only 13 in the week ending July 20. A great many of those dropped were seasonal workers who were added to the payroll during the 1965 midyear tomato season. However, during the week ending July 13 the Respondent terminated many warehouse and production employees who had worked for the Respondent on a year-round basis for many years. This does not mean that they worked a full day every week of the year, but rather that they worked some in each payroll week during the year, almost without exception. The General Counsel's principal complaint in this case is predicated upon the Respondent's termination of 19 warehouse employees and 5 production employees during the week ending July 13, 1965. It is the theory of the complaint, as amended, that these 24 employees had worked for the Respondent for many years on a year-round basis without ever being laid off, that their termination involved the discontinuance of the Respondent's former longstanding practice of having regular year-round crews in the warehouse and production departments, and that the dis- continuation of this practice was motivated by antiunion considerations and hence 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8 (a)(3) and (1) of the Acts However in one respect at least the General Counsel s complaint is not well founded My study of the Respondents payroll records shows that 6 of the 19 warehouse workers named in the complaint as amended were not regular year round employees of the Respondent In fact none of these six performed any work for the Respondent until the week ending May 25 1965 or later The complaint as amended therefore will be dismissed as to these six warehouse employees as follows Fernando Cruz Rudolfo Garza, Diego Guerro Manuel Ruiz Juan Salinas and Anastacio Torres The record shows that the other 13 warehouse employees and the 5 employees whom the General Counsel refers to as production employees 4 were all long service employees who had never before been laid off for lack of work In the warehouse Jose Alaniz had worked 20 years without a layoff Pnmitivo Casarez Maximo Cortez Antonio Estala Jesus Garcia Juan Garcia and Diego Madrigal each had worked year round for at least 10 years without a layoff and Raul Mohna and Armando Ochoa had worked regularly for almost 10 years Other warehousemen who worked regularly for the Respondent were Fidel Garcia Ubaldo Ruiz, Alfredo Trevino and Narciso Vargas each of whom had worked 5 to 7 years without a layoff 8 Among the production employees who had previously worked year round with out a layoff were Elegio Madrigal who was hired when the Respondent corn menced operations in 1943 Alfredo Cruz and Marcos Madrigal who had each worked 20 years without a layoff and Viviano Valdez 10 years and Tonbio Macias 8 years without a layoff for lack of work 6 All of the above named warehouse and production employees were let go some time during the payroll week ending July 13 1965 When these employees asked for an explanation they were simply told to look at the notice which the Respond ent had posted on the bulletin board on July 9 When the employees went to the plant the following Saturday to obtain their paychecks they were asked to sign the following statement TO ELSA CANNING COMPANY I understand that my employment is now terminated In the event there is work in the future I understand I have the right to apply for same as a new employee Date ------------------------ -------------------- Signature of Employee Social Security Number -------------------------- Some of the employees refused to sign Admittedly this was the first time the Respondent had used these forms Not one of the Respondents long haul truckdrivers and truck mechanics was laid off during this period None of them was in the group of employees whose bargaining designation cards had been sent to the Respondent by the Unions with their letter requesting recognition and bargaining on May 18 1965 In contrast of the 18 warehouse and production employees laid off for the first time in their long service with the Respondent and whose layoffs are alleged to violate the Act 16 were among the group whose designation cards had been sent to the Respondent on May 18 Of the 13 employees retained on the warehouse and production department payrolls after July 13 1965 only 2 Euleho Delgado and Henberto Salinas were in the group whose cards were sent to the Respondent 7 Two others Juan T Rodriguez and Juan Trevino Jr were referred to by wit nesses as foremen None of the remaining nine employees retained were among the group whose bargaining designation cards were sent to the Respondent with its letter of May 18 8 The complaint as amended alleges that the layoff of Elegio Madrigal a production em ployee also violated Section 8 ( a) (4) of the Act ' Actually some of these production employees appear frequently on the warehouse pay roll It is immaterial for the purposes of this case whether they be regarded as production or warehouse employees 5 The foregoing findings are based on the testimony of Jose Alaniz and Juan Garcia and is not controverted by the Respondent 6 Macias received a disciplinary layoff of 1 month in 1900 4 As General Manager Joe Gavito Jr testified Delgado was the only employee who could repair and overhaul machinery and equipment (he is a welder also ) and operate the boilers and the pressure cookers during the production season as well Salinas Gavito testified was in charge of all labeled stock and the shipping out of all less than truckload orders ELSA CANNING COMPANY 145 Although the Respondent stated in its notice of July 9 that it was not going to require any warehouse or production employees during the rest of July or all dur ing the month of August at least 13 employees were carried on the payrolls of these departments during each of the weeks in this period The employee comple ment was gradually increased during these weeks by adding relatives of supervisors and others until finally on August 24 the Respondent commenced having card signers recalled All during this period up to August 24 (during which the Respond ent assertedly planned to have no production or warehouse employees) a sub stantial amount of overtime work was performed At first almost every employee on the payroll put in some overtime During this period supervisory personnel from other departments worked in the warehouse and truck mechanics performed labor ers work in the warehouse Production employees worked in the warehouse and warehouse employees performed production duties Occasionally female production employees performed work in the warehouse which previously only men had done When the Respondent commenced rebuilding its staff in earnest the latter part of August the Respondent utilized the services of the Texas Employment Commission to notify them to return and instructed the commission not to have employees who had obtained steady jobs return for the reason that it could not assure them of the availability of more than 2 weeks work 2 The Respondents contentions conclusions The Respondent contends that the layoffs of the week ending July 13 were the result of the curtailment of operations necessitated by the financial difficulties which it had experienced in the past few years The Respondent points out that it had suffered the following losses from its canning operations in prior years Year ending September 30 1961----------------------- -------------------------- $8 391 1962----------------------- -------------------------- 1 088 1963----------------------- -------------------------- 57 875 1964----------------------- -------------------------- 8 124 755 The Respondent also calls attention to the fact that these losses had caused the bank financing its operations and its other creditors to question whether the fur ther operation of the plant was feasible The upshot of discussions between the bank and the creditors on the one hand and the Respondent, on the other was the curtailment of the amount of credit available to the Respondent and the impose tion of the requirement that the Respondent discontinue packing the crops on winch it had been sustaining losses The canning of beets and carrots had to be discontinued in the spring of 1964 and previously the canning of green beans and greens had been stopped because of losses in canning these vegetables The Respondent also cites the fact that the curtailment in the number of different vegetables being canned resulted in steadily decreasing inventories of canned goods which meant less work for warehouse employees The Respondent s inventory of canned goods declined from 398 633 cases on hand on July 1 1963 , to 187 352 cases on hand on July 1 1965 However other circumstances persuade me that it was not the Respondents financial plight but rather its antagonism toward the Union which was responsible for the Respondent s change in its longstanding practice of having year round employees in the warehouse and production departments The 18 long service ware- house and production employees here involved were laid off after more than 9 months of the current fiscal year had passed and with only 4 more weeks of pro- duction projected in the remainder of the 1965 fiscal year ending on September 30 1965 The figures concerning the results of the Respondent s canning operations in fiscal year 1965 were not then available But as later disclosed they revealed a dramatic turnabout in the Respondents financial fortunes In contrast to a loss of $124 755 in fiscal year 1964 the Respondent s financial statement shows a profit 8 The foregoing figures do not reflect the Respondent a net earnings from its overall operations for these years The net earning figures show the following profits or (losses) Year ending Sept SO 1961------------ -------------- -- --- - -- -------------- $1 074 1962--------------------------- ----------------------------- 2 514 1968------------------------- ---------- -------------------- (38 375) 1964--------- ----------------- ----------------------------- ( 119 882) 264-188-67-vol 161-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from canning operations in fiscal year 1965 of $84,661. While the final figures were not available at the time of the layoffs, the Respondent undoubtedly had interim figures showing the results almost up until that time .9 The Respondent did not lay off the 18 long-service warehouse and production employees here involved when its financial crises was at its peak in the fall of 1964. Yet 9 months later, after months of profitable operations, after the Respondent was again faced with a demand for recognition and bargaining from the Unions, and after it was informed that 16 of the 18 employees here involved were support- ing the Union, then it decided to abandon its previous practice of keeping year- round crews in both the warehouse and in the production department. The substantial disproportion in numbers of union supporters laid off and non- union employees retained is persuasive evidence that hostility to the Unions lay behind the Respondent's decision to discontinue its longstanding practice of having year-round crews in the warehouse and production departments. As found above, the layoffs largely affected card signers. Of the 18 long-service employees 16 here involved were card signers, and all but 2 of the 16 were included in the layoff. There were special reasons, as General Manager Gavito testified, why the services of these two could not be dispensed with. None of the over-the-road drivers and truck mechanics were included in the layoff. None of them had signed union cards. During the week ending July 20, 1965, the first week after the layoff there were 13 employees on the Respondent's payroll. As found above, 9 of the 13 were non- union employees, 2 were union card signers (the 2 iefeired to above), and the remaining 2 were referred to as foremen by employees.io After the layoffs supervisory personnel worked in departments other than their own, and warehouse employees worked in the production department and pro- duction employees in the warehouse, performing other than their regular duties. At times, women performed warehouse tasks customarily assigned to men. In building up its staff, after the layoffs, the Respondent first hired nonunion employ- ees. Not until the sixth week after the layoff did the Respondent start calling back the card signers. Despite the Respondent's forecast that it would not need any warehouse or production employees in the last 3 months of the year, except during the last 3 weeks in November, the Respondent's payrolls show that during each week in this 3-month period the Respondent had almost as many employees on its warehouse and production department payrolls as during other months of low production. That the Respondent was opposed to the Unions and was capable of engaging in discrimination against employees in order to discourage union adherence is demon- strated by the discriminatory acts involved in the Board's decision in the prior case. As stated above, this decision has now been enforced by the Court of Appeals for the District of Columbia Circuit. That the Respondent has remained adamantly opposed to the Unions is indicated in the letter distributed to all its employees in both English and Spanish shortly before the election in November 1965 in which it frankly appealed for a "NO" vote in the election.ii O The Respondent has an accountant who is employed full time in its office to handle such matters. 10 The courts have recognized that the selection of a disproportionate number of union members for layoff gives rise to an inference that the selection was made on a discrimina- tory basis. N.L.R B. v. W. C. Nabors Company, 196 F.2d 272, 275-276 (C.A. 5), cert. denied 344 U.S. 865 ; N.L.R B. v. W. C. Bach'elder (Hoosier Veneer Co ), 120 F 2d 574, 578, cert. denied 314 U.S. 647; F. W. Woolworth Company v. N L.R.B., 121 F.2d 658, 661-662 (C.A. 2) ; N.L.R.B. v. Shedd-Brown Mfg. Co., 213 F.2d 163, 174 (C.A. 7). The full text of the Respondent's letter is as follows : November 3, 1965 TO ALL OUR EMPLOYEES AND FAMILIES : This Friday you have the opportunity to vote in an important election. THE RESULTS CAN SERIOUSLY AFFECT YOUR FUTURE AND THE FUTURE OF THIS COMPANY Don't let someone else decide your future. Be sure and vote. The union only needs a majority of those actually voting, so your failure to vote can have the same effect as a vote for the union. The election will be held at the Lutheran Church on Friday, November 5, between the hours of 6: 00 A.M. to 8: 00 A.M.; 12: 00 Noon to 1 : 00 P.M ; and 6. 00 P.M. to 8: 00 P.M. You will decide on whether the Meat Cutters and the Teamsters will be your agent. An agent is a very important person. You should never appoint anyone to act as your agent unless you know all about him and are convinced that you can trust him in every way. How much do you know about these Union people who are trying to ELSA CANNING COMPANY 147 The Respondent advances various explanations for its retention on the payroll after the layoffs of the 13 employees retained Alvarado according to the Respond ent is one of its main mechanics and the only employee capable of repairing its can closing machines Bega was an old employee who had worked as night watch man in past years Contreras is the Respondents only labeling machine operator Cruz is a maintenance and repairman and can operate the painting equipment Delgado a card signer as stated above was not only a competent mechanic but also could operate the boilers and cook Hernandez a part time employee on a social security pension repairs field boxes and bins after the tomato season Leal and Medina were mechanics in the truck shop Alfredo Ruiz was an assistant mechanic in the truck shop and a local truckdriver Rodriguez is one of three bonded employees who handles releases out of the warehouse and is a foreman in the warehouse during production (As found below Rodriguez is the supervisor who sent Jose Alaniz home the night before his discharge in September 1965 ) Salinas a card signer is in charge of all the labeled stock and handles all of the small express shipments Rafaelo Solis has worked for the Company for many years and was easily recalled for short runs Juan Trevino Jr the thirteenth employee on the July 20 payroll is referred to by the Respondent as a handy man having several assistants who performs all kinds of odd jobs at the plant including plumbing and carpentry work Trevino is the employee who was referred to by Juan Garcia as the foreman The Respondents payroll records show that Trevino s total annual wages in 1965 were approximately $ 1 200 more than those of the next highest paid production employee From this I infer that if Trevino was not a supervisor of sorts he at least enjoyed such a special relationship with management that he could be depended upon not to support the Union I have carefully considered the Respondents explanations for the retention of such a high proportion of nonunion employees They range from flimsy in my opinion in some cases to quite persuasive in others However in view of the sub stantial disproportion between the number of nonunion and union employees retained the fact that supervisors were used to perform work to which they were become your agent If you vote yes at the election you will be voting to make them your agent You have all read in the newspapers about the Teamsters Union The bead of this Union stands convicted of crimes and has been sentenced to the penitentiary He is now taking up collections from Union members amounting to tliouands of dollars to pay his attorney fees and other bills and expenses This in addition to the regular Union dues assessments fines etc The Meat Cutters Union is the same one who has caused the strike at Texas Plastics Many of your friends who were employees there lost a lot of money while on strike Is this the type of people you want for your agents9 The Company is convinced that they are not A Union cannot make jobs for you It will not pay your wages It will not give you holidays or vacation pay What it can do is ask the company to do these things for you If the Company doesn t want to it doesn t have to and then the only thing the Union can do is strike A strike only takes money out of your pockets and hurts the welfare of your family The Union can only cost you money s Can you and your family afford another expense 9 The Company through the years has done its very best to give as many employees jobs as it can Our work depends a great deal on the vegetable crops in the Valley which are sometimes good and sometimes not so good The Union cannot change this situation in any way We do not know of anything the Union can get for you that we are not already giving you and we plan to go on doing everything we can for our employees and it isn t going to cost you $10 00 a month in Union dues initiating fees assessments and the possibility of lost wages because of strikes and violence Your JOB your FUTURE and the WELFARE of YOUR FAMILY are too im portant to be trusted to the people of the kind who seek to represent you We hope that before you make your mind you will discuss this matter with your husband or wife and your friends and then we think that you will see that you have to vote NO at the elections Sincerely yours ELSA CANNING COMPANY (S) J Gavito Jr By JOE GAVITO JR Manager NO DUES-NO STRIKES-NO VIOLENCE-NO UNION 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not accustomed that mechanics and production employees were assigned to ordi nary warehouse work that substantial amounts of overtime work was performed by these employees and the fact that the Respondent was still strongly opposed to the Union I conclude that the Respondents discontinuance of its longstanding past practice of having year round crews in the warehouse and production department was a maneuver adopted by it to discourage its employees from supporting the Union and that the Respondents explanations for its retention of such a high proportion of nonunion employees were largely pretexts to cloak the discriminatory nature of its action 12 This conclusion is reinforced in my opinion by the method adopted by the Respondent to inform the employees of the layoff Preliminarily , it should be remembered that 13 of the Respondent s warehouse employees of from 5 to 20 years service had signed bargaining designation cards and copies of the cards had been mailed to the Respondent The first news of the impending layoff was con tained in the Respondent s July 9 notice stating that it would no longer maintain a warehouse crew as such during these off production months Then the Respond ent asked the employees when they picked up their checks to sign statements to the effect that they understood that their employment was terminated and that in the event there was work in the future that they had the right to apply for same as a new employee Under all the circumstances it would appear that the Respond ent s action in informing these long term employees that they would be treated as new employees in the future was taken in a fit of pique at the employees for having again designated the Unions as their bargaining representative for it served no useful employer purpose and was inconsistent with the Respondents past prac- tice At least it would not be unreasonable for these long service employees so to construe the Respondent s action in view of their recent designation of the Unions as their bargaining agent and the fact that the Respondet s action affected only the warehouse and production employees among whom the Union s strength was con centrated I conclude that the Respondents action in requesting employees to sign the new employee statements had the effect of discouraging the employees interest in the Union and that the Respondent by making such requests has interfered with restrained and coerced its employees in violation of Section 8 (a) (1) of the Act D The Respondent's alleged discrimination against Elegio Madrigal in violation of Section 8(a) (3) and (4) of the Act The complaint as amended alleges that the Respondent reduced the working hours of Elegio Madrigal commencing on or about January 25 1965 and that its conduct in this regard violated Section 8(a)(3) and (4) of the Act In support of this allegation the General Counsel introduced into evidence a tabulation showing the number of hours worked by Madrigal in 1964 and 1965 compiled from Madrigals check stubs This tabulation shows that Madrigal worked a total of 1 845 25 hours in 1964 and 1 606 50 hours in 1965 The reduction in Madrigal s hours in 1965, below 1964 therefore amounted to 138 75 hours or about 3 hours per week In view of the fact that the hours worked by the Respondents employees mclud ing Madrigal fluctuated considerably from week to week and from season to season, I do not regard a reduction in hours of 3 hours per week of sufficient pro portions in and of itself to warrant an inference of discriminatory treatment No evidence was offered by the General Counsel tending to establish that some other employee having comparable tenure experience and duties worked longer hours in comparison with Madrigal Under all the circumstances I conclude that the General Counsel has failed to establish by a preponderance of the evidence that the Respondent reduced Madrigals hours in violation of Section 8(a) (3) and (4) of the Act v This does not mean however that the Respondent might not have retained some of the nonunion employees after the layoff had not the Respondent been motivated by anti union considerations in deciding to discontinue its year round warehouse and production crews Since the Respondent has put back to work 16 of the 18 employees here involved and has offered temporary reinstatement to the remaining 2 employees this problem affects mainly the question of the amount of backpay due As set forth below this prob 1em can be resolved at the compliance stage of the proceedings ELSA CANNING COMPANY 149 E The Respondents alleged discrimination against Jose Alaniz in violation of Section 8(a) (3) and (4) of the Act Jose Alaniz was one of the warehouse employees who was discrunmatorily laid off during the week ending July 13 1965 Alaniz was reinstated on August 24 1965 Around 10 pin on September 8 1965 Juan Rodriguez the foreman in the warehouse at night observed Alaniz open a can of tomatoes and green chilies in the warehouse Rodriguez went over to Alaniz and told him Jose how come you re doing this when you re not supposed to Alaniz replied that he was hungry Again on September 13 about the same time of night Rodriguez saw Alaniz open another can of tomatoes and green chilies Rodriguez went over and stood 5 or 10 feet away from Alaniz and just looked at him for a while as Alaniz was eating the contents of the can Rodriguez did not say anything to Alaniz on this occasion On September 23 Rodriguez saw Alaniz for the third time opening a can of tomatoes and eating the contents Again Rodriguez went over and stood by Alaniz as he ate the tomatoes As soon as a replacement became available Rodriguez had Alaniz report to him When Alaniz did so Rodriguez told him to go on home and to check with Foreman Joe Ruiz the next morning At the same time Rodriguez left a note for Ruiz explaining that he had sent Alaniz home early because he had found Alaniz eating tomatoes from one of the Respondents cans and that this was the third time that month that he had caught Alaniz doing so When Alaniz reported for work the next morning Foreman Ruiz told him to see General Manager Gavito Gavito told Alaniz that it had been reported to hun that he had been caught for the third time eating the Company s canned goods and that he had been warned not to do so Alaniz replied that he did not know that it was against the rules to do so and offered to pay for the tomatoes Gavito declined saying that it was not the money but the fact that he was repeatedly breaking company rules which made his offense serious and then informed Alaniz that he was discharged The foregoing findings are based primarily on the testimony of Rodriguez and Gavito Alaniz denied that the incidents of September 8 and 13 had occurred However Rodriguez impressed me as testifying truthfully and I do not believe that Rodriguez would have sent Alaniz home on his own initiative and at the same time reported to his superiors that the three incidents had occurred unless this were true The General Counsel cites testimony which he urges establishes that eating the company products was a relatively common practice in the plant However I am not satisfied that this testimony shows that this was a recent practice or that it was done with the knowledge of the Respondents supervisors I do not credit Juan Garcia s testimony that eating canned goods has always been going on there No other employee gave such sweeping testimony and Garcia s testimony concerning the regularity of employment of the six warehouse employees whose cases I have dismissed proved to be greatly exaggerated Alaniz conduct in repeatedly eating the Company s canned goods in the ware house despite his foreman s warning to stop constituted justifiable grounds for dis charge and the General Counsel in my opinion has failed to show that this was just a pretext to conceal a discharge in violation of either Section 8(a)(3) or (4) of the Act The allegations of the complaint as amended based upon Alaniz dis charge on September 23 1965 are hereby dismissed F The Respondent's attempt to obtain a statement from Narciso Medrano supporting its objections to the election As stated above the election was held on Friday November 5 1965 On that day Medrano one of the Respondents long haul truckdnvers was in Dallas Texas en route to Baton Rouge Louisiana As Medrano was returning to Elsa on the night of November 9 he was intercepted on the highway by a fellow long haul driver Jesus Gutierrez at Raymondville which is about 25 miles from Elsa After being flagged down by Gutierrez the two men had a conversation over a cup of coffee According to Medrano s credited testimony Gutierrez told him that Mr 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joe Gavito had sent him out there to catch [Medrano] on [his] way in to see if [he] could sign a statement stating that [he] was out of Elsa on- the day of the election, and that [he] wanted to vote against the Union." Medrano testified that Gutierrez went on to explain, as follows, "That way they could get rid of the election being held here on November • the 5th, and maybe have an election in a year or two." Medrano replied, according to his testimony, as follows: "I' told him that I wasn't interested in that because the Union had won." Gutierrez rejoined, "Well, there is nothing more that we can talk about, I must go back and tell Mr. Joe Gavito that you won't sign no statement." Whereupon, Gutierrez left in an automobile belonging to the Respondent's timekeeper. Gavito testified that in the course of a conversation about the election initiated by Gutierrez, he stated to him, after mentioning that Medrano had been away on a delivery on the day of the election, as follows: I don't know how Narciso feels about the election, he might be against the union and he might be for the union, but I feel that if he is against the union and wishes to express himself that it might be grounds for us to give that as one of the objections to the result of the election. The following conversation then ensued: And [Gutierrez] said, "Well, I will be glad to talk to Narciso and find out how he feels." And I said, "Well, that is up to you. I don't want to have any- thing to do with it, because I don't want Narciso Medrano to think that I am putting pressure on him." I said, "If you want to talk to him and he wants to act of his own free will, and give us a statement that if he had been here that he would have voted against the union, we will be glad to turn it over to our attorney so they can submit it to the NLRB for consideration." I said, "I don't want you to try to convince Medrano or put any pressure on him at all, but if it is of his own free will and expresses himself accordingly," I said, "I will be glad to submit it." And that is just the way I left it. Medrano gave testimony about a second conversation with Gutierrez about 2 weeks after the first conversation in which Gutierrez suggested that the Respondent might be willing to pay a substantial sum of money to obtain a statement of the kind above referred to. Medrano testified that Gutierrez concluded this conversation by saying, "Now this came from me, don't think that they sent me, this is my own opinion, my way of thinking." The General Counsel contends that Gutierrez was acting as the Respondent's agent on both occasions on which he spoke to Medrano and that the Respondent's conduct on these occasions violated Section 8(a)(1) of the Act. With respect to the second occasion on which Gutierrez' spoke to Medrano about a statement I find that Gutierrez was acting solely upon his own initiative, and that the Respond- ent was not responsible for his conduct on this occasion. However, regarding the first occasion on November 9, when Gutierrez stopped Medrano and asked him in effect if he wanted to complain about being deprived of the opportunity to vote in the election, I conclude that Gutierrez was acting as the Respondent's agent and that his conduct was violative of the Act. Gutierrez' approach to Medrano in effect forced Medrano to disclose his prounion sympathies. In the context of events in this case, including the layoff of numerous long-service employees in the ware- house and production departments, the departments in which the Unions' strength was concentrated, the Respondent's inquiry of Medrano, in my opinion, had coercive implications, and constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. By laying off Jose Alaniz, Primitive Casarez, Maximo Cortez, Alfredo Cruz, Antonio Estala, Fidel Garcia, Jesus Garcia, Juan Garcia, Toribio Macias, Diego Madrigal, Elegio Madrigal, Marcos Madrigal, Raul Molina, Armando Ochoa, Ubaldo Ruiz, Alfredo Trevino, Narciso Vargas, and Viviano Valdez during the week ending July 13, 1965, because of their support of the Unions, the Respondent has discriminated in regard to 'their hire and tenure of employment, thereby dis- couraging membership in the Unions in violation of Section 8(a)(3) and (1) of the Act. 2. By promulgating and enforcing a no-solicitation rule which is excessively broad in scope and for the purpose of deterring employees from continuing to ELSA CANNING COMPANY 151 support the Unions, by requesting laid-off employees to-sign statements acknowl- edging that they have the right to seek future employment only as new employees, and by coercively soliciting Narciso Medrano to sign a statement supporting its objections to the election, the Respondent had interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found -that the Respondent laid off the 18 employees named in the pre- -ceding section in violation of the Act, my Recommended Order will provide that the Respondent offer them, excepting Jose Alaniz, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. If the Respondent has already made such an offer of reinstatement, such offer, of course, need not be repeated. In addition, the Respondent shall make each of the said 18 employees whole for any loss of earnings he may have suffered as a result of the discrimination, by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less the net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The earnings of the employees on the payroll during the period beginning on July 13 and ending on August 24 afford some measure of the backpay due the 18 employees here involved during this period. However, as indicated above, since the Respondent might have retained some of the nonunion employees after the layoffs, absent any discrimination motive, it is difficult to determine what portion of the sums earned by the employees retained and hired during the period beginning July 13 and ending August 24 should be allocated to the employees here involved, and to which ones. The resolution of these questions will be left to the compliance stage of the proceeding. A possible solution of this problem which appears fair to me is to divide equally among the 18 employees here involved three-fourths of the sums shown to have been paid all of the warehouse and production employees on the Respondent's payroll from July 13, 1965, to August 24, 1965, except Juan Rodriguez and Juan Trevino, Jr. Backpay accruing after August 24, 1965, will be computed in the normal manner. The Respondent's backpay liability to Alaniz terminates at least by September 24, 1965, when he was discharged, and earlier if he was fully reinstated on August 24, 1965. Because of the character and scope of the unfair labor practices herein found, my Recommended Order will provide not only that the Respondent cease and desist from the specific unfair labor practices found, but also that it cease and desist from in any other manner interfering with, restraining, and coercing employ- ees in the exercise of their rights guaranteed by Section 7 of the Act. In view of the fact that so many of the employees speak Spanish, the notice required to be posted herein, shall also be posted in Spanish. Upon the foregoing findings and conclusions and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER The Respondent, Elsa Canning Company, Elsa, Texas, its officers, agents, suc- ,cessors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, and International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , General Drivers Local Union No. 657, or any other labor organization of its employees , by discriminatorily lay- ing off, discharging, refusing to recall employees , or by discriminating against them in any other manner in regard to their hire and tenure of employment or any term ,or-condition of employment. (b) Promulgating and maintaining any rule ,prohibiting or tending to inhibit employees from soliciting union membership on company property during non- working hours, or promulgating or enforcing any plant rules for the purpose of deterring union organization. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Requesting employees who are being laid off to acknowledge that they have the right to apply for future employment only as a new employee (d) Coercively soliciting statements from employees which require the disclosure of their proumon sympathies or lack thereof (e) In any other manner interfering with restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to their former or substantially equivalent positions to Primitivo Casarez Maximo Cortez Alfredo Cruz, Antonio Estala Fidel Garcia Jesus Garcia Juan Garcia Tonbio Macias Diego Madrigal Elegio Madrigal Marcos Madrigal Raul Molina Armando Ochoa Ubaldo Ruiz, Alfredo Trevino Narciso Vargas and Viviano Valdez without prejudice to their seniority or other rights and privileges and make each and Jose Alaniz whole for any loss of earnings he may have suffered as a result of the discrimination in the manner set forth in the section of this Decision entitled `The Remedy (b) Notify any of the employees named in the preceding paragraph if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act as amended after discharge from the Armed Forces (c) 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 analyze the amounts of backpay due (d) Post at its Elsa Texas plant copies of the attached notice marked Appen dix A 13 including a Spanish translation thereof Copies of said notices to be furnished by the Regional Director for Region 23 after being duly signed by an authorized representative of the Respondent shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered defaced , or covered by any other material (e) Notify the Regional Director for Region 23 in writing within 20 days from the receipt of this Recommended Order what steps it has taken to comply herewith 14 13 In the event that this Recommended Order is adopted by the Board the words a Decision and Order shall be substituted for the words a Recommended Order of a Trial Examiner in the notice In the further event that the Boards Order is enforced by a decree of a United States Court of Appeals the words a Decree of the United States Court of Appeals Enforcing an Order shall be substituted for the words a Decision and Order "'In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify said Regional Director in writing within 10 days from the date of this Order what steps Respondent has taken to comply here iith APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela tions Act as amended we hereby notify our employees that WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO and International Brother hood of Teamsters Chauffeurs Warehousemen and Helpers of America, General Drivers Local Union No 657 or any other union by laying off dis charging refusing to recall any employee or by otherwise discriminating against any employees because of their union activities WE WILL NOT promulgate or maintain any rules prohibiting or tending to inhibit employees from soliciting union membership on company time during nonworking hours and WE WILL NOT promulgate or enforce any plant rules for the purpose of interfering with union activities ELBA CANNING COMPANY 153 WE WILL NOT request employees who are being laid off to acknowledge that they have the right to apply for future employment only as new employees WE WILL NOT coercively solicit from employees statements which require the disclosure of their prounion sympathies or lack thereof WE WILL NOT in any other manner interfere with restrain, or coerce our employees in the exercise of the right to join or not to join unions and to engage in union or concerted activities WE WILL if we have not already done so offer to Primitivo Casarez, Maximo Cortez Alfredo Cruz, Antonio Estala Fidel Garcia, Jesus Garcia Juan Garcia Tonbio Macias Diego Madrigal Elegio Madrigal Marcos Madrigal Raul Molina Armando Ochoa Ubaldo Ruiz, Alfredo Trevino Narciso Vargas and Viviano Valdez immediate and full reinstatement with backpay WE WILL pay backpay to Jose Alaniz for his layoff on July 13, 1965 WE WILL notify the above named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act as amended after discharge from the Armed Forces ELSA CANNING COMPANY Employer Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered defaced or covered by any other material If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Boards Regional Office, 6617 Federal Office Building 515 Rusk Avenue Houston Texas 77002 Telephone 228-4722 APPENDIX B RULES AND REGULATIONS The following rules are those which have been adopted and followed in the past, and the company now feels it is necessary to remind all employees of these rules It is difficult to foresee all possible situations and the following rules do not limit the company s right to discipline for good cause where an employees conduct breaches the standard of common sense and good judgment In order to insure the employees and the company alike that these rules are observed a fair range of disciplinary action is prescribed depending upon the seriousness of the conduct In enforcing these rules when appropriate the company will take into consideration extenuating circumstances I For the violation of the following rules an employee shall be subject to discharge 1 Reporting to work intoxicated possession of, or drinking of any alcoholic beverage on plant premises 2 Insubordination or refusal to do work assigned by a foreman or supervisor 3 Dishonesty or theft of employees or company s property 4 Fighting or instigating a fight while on company premises 5 Wilful damage to company or employees property 6 Violation of rules prescribed by the U S Department of Agriculture, Agricultural Marketing Service and/or Food and Drug Administration 7 Disorderly Immoral or indecent conduct on company premises 8 Posting removal or tampering with bulletin board notices without authority 9 Solicitation for any cause or the distribution of literature during working hours or in work areas without permission 10 Restricting production 11 Smoking in restricted areas 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II For violation of the following rules an employee shall be subject to discharge after one (1) warning 1 Absence from work without supervisors approval 2 Absence from work for any reason if supervisor is not notified within two hours after the scheduled work day begins 3 Productivity and workmanship not up to standard 4 Failure to keep company advised of current address or telephone number 5 Horseplay and interfering with other employees on the job 6 Leaving department work station or plant during working hours without permission 7 Conduct at work dangerous to others 8 Neglect resulting in damage to company property III For the violation of the following rules an employee shall be subject to discharge after two (2) warnings 1 Unnecessary talking on the job 2 Tardiness in reporting to work 3 Cursing directing profanity or derogatory remarks toward any individual on plant premises 4 Violation of safety rules 5 Absenteeism APPENDIX C July 9 1965 NOTICE TO ALL OUR EMPLOYEES With the Spring tomato pack just about completed and with the curtailment of our canning operations for the next few months we are having to reduce our work force considerably We will not maintain a werehouse crew as such during these off production months We will maintain a limited number of maintenance employees long haul truckdrivers and a crew of two or three in our truck mainte- nance shop For your guidance we list below our projected plans for production and employ ment for the next year As our canning operations develop we will employ the required number of employees based on seniority and ability Week Ending Warehouse Production Maintenance Drivers & shop Total July 13 1965 40 142 5 13 200 July 20 1965 0 0 8 12 20 July 27 1965 0 0 8 12 20 Aug 3 1965 0 0 8 12 20 Aug 10 1965 0 0 8 12 20 Aug 17 196 0 0 8 12 20 Aug 24 1965 0 0 8 12 20 Aug 31 1965 0 0 8 12 20 Sept 7 1965 12 15 2 12 41 Sept 14 1965 12 15 2 12 41 Sept 21 1965 12 15 2 12 41 Sept 28 1965 12 15 2 12 41 Oct 5 1965 0 0 8 12 20 Oct 12 1965 0 0 8 12 20 Oct 19 1965 0 0 8 12 20 Oct 26 1965 0 0 8 12 20 Nov 2 1965 0 0 8 12 20 Nov 9 1965 0 0 8 12 20 Nov 16 1965 12 21 2 12 47 Nov 23 1965 12 21 2 12 47 Nov 30 1965 12 21 2 12 47 Dec 7 1965 0 0 8 12 20 Dec 14 1965 0 0 8 12 20 FRONTIER GUARD PATROL, INC. 155 Week-Ending Warehouse Production Maintenance Drivers & shop Total Dec. 21,1965 ------___ 0 0 8 12 20 Dec. 28,1965------- 0 0 8 12 20 Jan. 4,1966____________________ 15 71 2 12 100 Jan. 11, 1966 ___________________ 15 71 2 12 100 Jan. 18 , 1966___________________ 15 71 2 12 100 Jan. 25, 1966 ___________________ 15 71 2 12 100 Feb. 1, 1966____________________ 2 19 2 12 35 Feb. 8 , 1966____________________ 2 19 2 12 35 Feb. 15, 1966___________________ 2 19 2 12 35 Feb. 22, 1966___________________ 2 19 2 12 35 Mar. 1 , 1966_ ___ ___ 6 32 2 12 52 Mar. 8, 1966____________________ 6 32 2 12 52 Mar. 15,1966------------------- 6 32 2 12 52 Mar. 22, 1966 ___________________ 6 32 2 12 52 Mar. 29, 1966___________________ 8 13 2 12 35 Apr. 5, 1966__ __________________ 8 13 2 12 35 Apr. 12, 1966------------------- 8 13 2 12 35 Apr. 19, 1966___________________ 8 13 2 12 35 Apr. 26, 1966___________________ 0 0 10 12 22 May 3 , 1966____________________ 0 0 10 12 22 May 10, 1966___ __ 0 0 10 12 22 May 17, 1966___________________ 0 0 10 12 22 May 24,1966___________________ 20 40 3 12 75 May 31,1966___________________ 20 65 3 12 100 June 7, 1966____ ________________ 20 65 3 12 100 June 14, 1966___________________ 40 145 3 12 200 June 21, 1966___________________ 40 145 3 12 200 June 28,1966_- _ ______ 40 145 3 12 200 July 5, 1966____________________ 20 65 3 12 100 July 12,1966___________________ 20 40 3 12 75 This projection is based on all crops maturing at normal time and that normal tonnage will be available . We must keep in mind that we are subject to crop losses due to freeze, drouth or excessive rains which can change the above planned production or vary the schedule dates. ELSA CANNING Co. (S) J. Gavito, Jr. JOE GAVITO, JR. Frontier Guard Patrol, Inc., d/b/a Frontier Guard and DeLue, Inc.; Colorado Guard-Patrol Service, Inc.; and/or Patrol Serv- ices, Inc. and Merchant Police Employees Association, Inc. Case 07-CA-1703. October 20,1966 DECISION AND ORDER On July 14, 1965, Trial Examiner Louis S. Penfield issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the General Counsel and the Respondent 161 NLRB No. 12.