Patio Foods, Inc.

446 DECISIONS OF NATIONAL Patio Foods, Inc. and International Union of Electrical , Radio and Machine Workers, AFL-CIO. Case 23-CA-2353. June 16,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 5, 1966, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that 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. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respondent filed cross-exceptions to the General Counsel's exceptions and an answering brief. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. I The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record' in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Patio Foods, Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' Respondent contends that the Trial Examiner was biased and prejudiced and that as a result it was denied a fair hearing We have carefully examined the record and the argument made by Respondent in support of its contention, and are satisfied, on the basis of the entire record, that the contention is without merit ' Respondent's request for oral argument is denied since the record and the briefs adequately present the issues and the positions of the parties LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon charges filed April 13 and May 9, 1966, by the International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein the IUE or the Union, against Patio Foods, Inc., herein Patio or the Respondent, the General Counsel issued a complaint and amended complaint alleging Respondent violated Section 8(a)(1) and (3) of the Act. The answer denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard by me at San Antonio, Texas, on August 11 and 12, 1966. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the General Counsel and the Respondent. Upon the entire record in this case and from my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation having its principal place of business at San Antonio, Texas, where it is engaged in the manufacture, processing, sale, and distribution of food products. Annually it sells and distributes products valued in excess of $50,000 to places outside the State of Texas and purchases materials valued in excess of $50,000 from places outside the State of Texas. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The IUE is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that the Respondent violated the Act by: (1) Promulgating, on July 1, 1964, and thereafter maintaining and enforcing rule 131 providing for dismissal for "Solicitation on Company Time for Any Cause or Purpose Not Expressly Approved by the Management." (2) Enforcing said rule to prevent distribution of union literature in nonworking areas on nonworking time. (3) Physically interfering with and threatening to arrest employees distributing literature in nonworking areas on nonworking time and threatening to suspend them and discharging them for such activity. (4) Demanding, in vulgar language, that an employee remove herself from company property. B. The Testimony Alice Jordan was employed in the enchilada department of Patio until April 11, 1966. She testified' that on that day the department closed down about 4:45 p.m. (regular I Joint Exh 2 2 Jordan was a completely credible witness and, in fact, there is little serious dispute in the testimony of the witnesses 165 NLRB No. 63 PATIO FOODS closing time was 5 pm.) because of a shortage of tortillas. She and Rachel Villarreal, another employee, left the storage frozen shipping building and went through gates 1 and 2 (see Joint Exh. 1) to Military Drive where two union organizers, Freund and Javior, and an employee named Lupe Hernandez had union literatures to distribute to employees when they left work. Both Jordan and Villarreal took the literature and then reentered the plant passing back through both gates 1 and 2. There were guards at both gates, D. C. Robinson employed by Stanley Smith Detectives, Incorporated, at gate 2 and W. E. Murphy an employee of Patio described as gate receptionist at gate 1. The witness testified that most of the employees leaving the plant would use the same route although, since the employees' parking lot lay between gates 1 and 2, all would not continue by foot through gate 2. After passing gate 1 they began distributing the literature to the other employees who were leaving the plant Murphy asked them if they had permission to pass out the literature and when told they had permission from the union organizers, Murphy told them Stumberg (H. E. Stumberg, Jr., general manager of Patio) had not given them permission and would "get mad." They continued to distribute the literature and Murphy blew a whistle and motioned for the guard at gate 2, Robinson, to come over. Robinson reached Jordan as she was passing out the pamphlet to another employee, grabbed the pamphlet out of her hand, and pulled her around by the arm. Robinson told her she was not supposed to be passing out pamphlets in that area and Jordan told him she had a right to do it. At this time the 5 o'clock whistle blew and Stumberg and W. R. Green, plant superintendent, came from the building. Stumberg asked Jordan what she thought she was doing and when she told him she was distributing union literature he told her she had no right to do it on his property. Stumberg told her to get off of the plant property and then ordered them into his office. When Jordan and Villarreal refused to leave, he threatened to call the police and then told them not to report for work the next day. Stumberg and Green then went back into the plant. In "a few seconds" Stumberg and Green came back and Stumberg told them they were breaking "a long-time set regulation" and then told them they were fired. The girls continued to distribute the pamphlets as they left the plant. As they were leaving Jordan told Green they, like MacArthur, would return and that she had the guts to return. Green told her to "get out in the street with her guts." While Jordan and Villarreal were distributing the pamphlets in an area marked an "x" on Joint Exhibit 1, a truck was unloading at an adjacent dock. The unloading was being performed by a crew of Patio's employees under the direction of Abel Santos, in charge of the storage and frozen shipping department. (The location of the trailer they were loading is shown on Joint Exh. 1.) The trailer was situated close to the area where Jordan and Villarreal were distributing their literature and it was the testimony of Santos and Samuel Serenil that the employees who were loading the truck stopped work when the distribution ' Joint Exh 3 Serenil testified that Jordan tried to give him a pamphlet but that he refused Jordan denied that she attempted to give any literature to any employee working on the truck and I credit her denial Apart from the fact that Jordan was a credible witness there would have been no reason to stop distributing to employees leaving the plant to go to the truck Sereml's testimony was not supported by any other employee 447 "began and watched the argument between Jordan and Stumberg and Green.4 It was also the testimony of Lupe Casillas, in charge of warehousing and receiving, that about 12 employees in his department stopped work to watch the distribution and the argument. These employees quit work at 5 p.m. I find no such substantial discrepancies between the testimony of the General Counsel's witnesses and those called by Respondent as to require further review. The testimony of Jordan was corroborated by her coworker Villarreal and it is not, as to the general pattern and sequence of events, contradicted. C. Conclusions Two contentions of the General Counsel may be disposed of without ado. The contention that an employer may not promulgate a rule forbidding solicitation on company time is absurd. The distinction between a prohibition against solicitation on company time and one against solicitation on company property has been observed since, in labor law, "the memory of man runneth not to the contrary."' It has become hackneyed and shopworn from application by the Board and the courts, including the U.S. Supreme Court.'' The allegation that rule 13 violates the Act must be dismissed. The second contention which merits quick dismissal is that which asserts a separate violation of Section 8(a)(1) in Green's use of the word "guts" in ordering Jordan off company property. The General Counsel, with as fine a display of nice-nellyism as this Examiner has recently encountered, contends that the use of the word "guts" (the word was first used by Jordan herself) constituted vulgarity. By implication the use of vulgarity in addressing an employee engaged in union activity is a per se violation of the Act. The theory is novel as well as lofty-minded but, apart from the fact that there are words which spring to mind which would have fitted the situation and which might have been subject to the charge of vulgarity, I do not find vulgarity barred by the Act, nor any requirement that an employer observe the etiquette of the nunnery in speaking to his employees. The Board has a sufficient burden in enforcing the statute without the added imposition of implementing the rules of behavior established by either Amy Vanderbilt or Emily Post. I recommend dismissal of paragraph 9(h) of the complaint insofar as it refers to the use of vulgar language. 7 The relevant and material issue in the case is whether the conduct of Jordan and Villarreal on April 11 was protected by the Act. That determination in turn rests upon whether they were, when engaged in passing out the pamphlets, in a nonworking area and on nonworking time and were not interfering with employees who were on working time. I do not find lengthy discussion required. Jordan and Villarreal were distributing the pamphlets on the path of egress from the plant to Military Drive. It was, of course, company property but it could scarcely be called a Peyton Packing Company, Inc , 49 NLRB 828 Republic Aviation Corporation v N L R B, 324 U S 793, N L R B v United Steelworkers of America, CIO [Nutone, Inc.] and N L R B v Avondale Mills, 357 U S 357 7 For a discussion of vulgarity and its impact see the Trial Examiner's Decision in Louisville Chair Company, Inc , 161 NLRB 358, section C, 1 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working area in the sense that term is generally employed. It is true that a truck was loading adjacent to the path and that another truck was loading at the canned goods warehouse" and testimony establishes that men at both areas stopped work to watch the argument between Jordan and Stumberg and Green. I do not think this sufficient to constitute the area used by employees going to or leaving from work as a working area. Certainly the distribution of the pamphlets did not prevent or interfere with work of the loaders. It is true that they were distracted by the ensuing scene but it was the responsibility of their supervisors to see that work continued. Assuming the activity of Jordan and Villarreal was lawful and protected, the responsibility for the distraction should be that of Stumberg and Green, who unlawfully interfered with that activity. I also find that Jordan and Villarreal were on their own time when this activity occurred. Admittedly work in their department had ceased and they had, after permission had been obtained by their supervisor, been released for the day. Under these circumstances I find it immaterial whether they were paid for the last 10 or 15 minutes or not. They were free to go home, to repair to the nearest tavern, or whatnot. It was, then, their privilege to engage in solicitation of the other employees who had been released and were leaving the plant. I find that Respondent unlawfully interfered with this activity by: (1) Robinson's conduct in stopping Jordan and taking a pamphlet from her hand and ordering her to cease solicitation.9 (2) Stumberg's direction to Jordan and Villarreal to leave his property and distribute literature in the street. (3) Stumberg's threat to call the police and place them under arrest and his order that they not report for work the following day. (4) The discharge of Jordan and Villarreal for engaging in the distribution of the literature. By the conduct set forth in (1), (2), and (3), above, the Respondent violated Section 8(a)(1),1° and by the conduct set forth in (4), above, it violated Section 8(a)(3) and (1) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent discharged Alice Jordan and Rachel Villarreal in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that they be offered full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. I shall also recommend that Respondent make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them in accordance with the formula of F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By enforcing its "Solicitation Rule" to prevent the distribution of union literature in nonworking areas on nonworking time; by physically interfering with the distribution of said literature in nonworking areas on nonworking time; and by threatening to suspend and to arrest employees for engaging in the distribution of union literature as aforesaid, the Respondent violated Section 8(a)(1) of the Act. 2. By discharging Alice Jordan and Rachel Villarreal for engaging in protected concerted activity in order to discourage union activity,the Respondent violated Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is recommended that Patio Foods, Inc., San Antonio, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully enforcing its "Solicitation Rule" by preventing the distribution of union literature in nonworking areas on nonworking time; physically interfering with the distribution of said literature in nonworking areas on nonworking time; and threatening to suspend and arrest employees for engaging in the distribution of said literature in nonworking areas on nonworking time. (b) Discriminating against any employee in regard to his hire or other tenure or condition of employment to discourage membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, by discharging or otherwise terminating his employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Alice Jordan and Rachel Villarreal full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay she may have suffered by reason of the discrimination practiced against her in the manner set forth in that portion of this Decision entitled "The Remedy." (b) Notify Alice Jordan and Rachel Villarreal 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 for the computation of any backpay 8 See Joint Exh 1 10 While the suspension of Jordan and Villarreal was a violation Although Robinson was an employee of a plant security of Section 8(a)(3), no separate finding will be made since it is service and not of Patio, I find him to be agent of Patio in this encompassed within the finding of an unlawful discharge under situation acting within the scope of his authority that section. PATIO FOODS which may become due under this Recommended Order. (d) Post at its plant at San Antonio, Texas, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director fcr Region 23, after being duly signed by an authorized representative, shall be posted by it 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 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 Decision, what steps have been taken to comply herewith. 12 It is further recommended that all allegations of the complaint not specifically found to be in violation of the Act shall be dismissed. " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's 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." II 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 herewith " APPENDIX 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 Lab r Relations Act, as amended, we hereby notify our employees that: WE WILL NOT enforce our "Solicitation Rule" so as to stop our employees from distributing union pamphlets in nonworking areas on nonworking time. WE WILL NOT physically interfere with the distribution of union literature by our employees in nonworking areas on nonworking time. 449 WE WILL NOT threaten to arrest or to suspend from employment any employees because they are distributing union literature in nonworking areas on nonworking time. WE WILL NOT discharge any employee because he or she has distributed union literature in nonworking areas on nonworking time. WE WILL NOT discharge any employee to discourage membership in or activity on behalf of International Union of Electrical, Radio and Machine Workers. AFL-CIO. WE WILL offer Alice Jordan and Rachel Villarreal their jobs back without loss of seniority or other rights and privileges and pay them for any loss of pay they may have suffered since they were fired. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of their right to self-organization, to form, join, or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization. All of our employees are free to become or remain, or to refrain from becoming or remaining. members of the above-named or any other labor organization. PATIO FOODS,INC. (Employer) Dated By (Representative) (Title) Note: We will notify any of 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. 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 Board' s Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611.