Winter-Mex Produce Co.

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alfonso B. Flores, An Individual Proprietor d/b/a Winter-Mex Produce Company and Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 310, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 28-CA-1491, 28-CA-1516, and 28-RC-1550 December 8, 1967 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS BROWN, JENKINS, AND ZAGORIA found appropriate within the meaning of Section 9(a) of the Act. I The General Counsel and the Charging Party except to the Trial Ex- aminer's credibility findings. It is the Board's established policy, however, not to overrule a Trial Examiner 's resolutions with respect to credibility unless, as is not the case here , the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 N LRB 544 , enfd 188 F.2d 362 (C A. 3). 2 In the order consolidating these cases , Case 28-RC-1550 was or- dered to a consolidated hearing for the purposes of a "hearing , rulings and decision by a Trial Examiner and that thereafter , Case No. 28-RC-1550, be transferred to and continued before the Board...." The Trial Ex- aminer erroneously recommended that Case 28-RC - 1550 be disposed of by the Regional Director for Region 28. In view of the order consolidating these cases, we do not adopt this recommendation but shall enter our own order certifying the results of the election. On August 1, 1967, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in unfair labor practices as alleged in the com- plaint and recommending that the complaint be dismissed, and that the objections to the election be overruled, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel and the Charging Party filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations 2 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 Recom- mended Order of the Trial Examiner and hereby or- ders that the complaint herein be and it hereby is dismissed. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes cast in the election has not been cast for Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 310, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that said labor organization is not the exclusive bargain- ing representative of the employees in the unit TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HOWARD MYERS, Trial Examiner: On December 16, 1966, Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 310, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, filed a petition (Case 28-RC-1 550) seeking to be certified as the statutory collective-bargaining representative of Respond- ent's dockhands, handtruckers, truckdrivers, loaders, warehousemen, and the entire platform people. Pursuant to a Decision and Direction of Elections,' an election by secret ballot was conducted under the auspices of the aforesaid Regional Director on March 21, 1967, among Respondent's employees in the unit found appropriate.2 Of the 10 eligible voters who participated in said March 21 Board-conducted election, 5 cast ballots in favor of and 5 cast ballots against the Union. On March 25, 1967, the Union filed due and timely objections "to conduct af- fecting the results of the election"; copies thereof were duly served upon Respondent. Upon a charge (Case 28-CA-1491) duly filed by the Union on February 10, 1967, a copy of which was duly served upon Respondent on February 11, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel3 and the Board, through the aforementioned Regional Director, issued a complaint, dated March 29, alleging that Respondent and/or his general foreman, Pedro Lozano: During December 1966 and January 1967, (a) unlawfully inter- rogated the employees regarding their union membership, activities, and sympathies; (b) promised the employees better working conditions if they were not represented by the Union; (c) promised the employees wage increases if they rejected the Union as their collective-bargaining representative; (d) told the employees that Respondent "would fight to the last to keep the Union out" of I Case 28-RC-1550 was consolidated for hearing with Cases 28-RC-1549, 1554, 1555, and 1559. After hearing was had therein, the Director for Region 28 directed separate elections in each case 2 The unit found appropriate in the aforementioned Decision and Direction of Elections was all Respondent's shed laborers in and around Nogales, Arizona, but excluding certain stated classifications of em- ployees 4 This term specifically includes counsel for the General Counsel ap- pearing at the hearing. 168 NLRB No. 91 ALFONSO B.. FLORES d/b/a WINTER-MEX PRODUCE CO. 775 Respondent's establishment; (e) told the employees that if "they rejected the Union [Respondent would] pay them as much as the Union could get them by collective bargaining"; (f) told the employees that it would not be to Respondent's advantage to "work his men more than 40 hours a week if they were represented by a union"; (g) told the employees that their rate of pay would be in- creased 25 cents per hour and, in addition, they would be given fully paid insurance if they "rejected the Union"; (h) told the employees that if they did not support the Union they would be given in excess of 40 hours work per week but, on the other hand, if they supported the Union they would be given only 40 hours work a week; (i) told the employees that if they selected the Union they would receive more pay through the institution of piece- rate work; and (j) told the employees that if they did not reject the Union they would be obliged to strictly adhere to all company working rules. The complaint further al- leged that Respondent discharged Carlos Molina San- doval, on or about January 27, 1967, and thereafter refused to reinstate him, because he had engaged in union or other protected concerted activities. Upon a charge duly filed by the Union on March 28, 1967 (Case 28--CA-1516), a copy of which was duly served upon Respondent on March 29, the General Counsel issued a complaint, dated April 18, alleging that since on or about December 14, 1966, Respondent has refused to bargain with the Union as the collective-bar- gaining representative of the employees in a certain described appropriate unit, even though the Union had been previously selected and designated as such representative by a majority of Respondent's employees in said unit. On April 6, Respondent duly filed an answer in Case 28-CA-1491 and on April 25, he duly filed an answer in Case 28-CA-1516. Each answer denied the commission of the unfair labor practices alleged. On April 18, 1967, the aforementioned Regional Director issued a supplemental decision on objections to the conduct of election, copies of which were duly served upon Respondent and upon the Union, in which he over- ruled objections A, B, and E upon the grounds, inter alia, that the Union did not "produce evidence to substantiate these objections,"4 and noted that the subject matter of objections C, D, and F, "as alleged in the Complaint and Notice of Hearing which was issued on March 29, 1967, in Case No. 28-CA-1491," and since these "objections (C, D, and F), raised substantial issues of fact and credi- bility which best be resolved by a hearing, he ordered that a hearing be held to resolve the substantial issue of fact and credibility raised hereon." The aforementioned Regional Director in said April 18, 1967, supplemental decision on objections ordered that Cases 28-CA-1491 and 1519 and the objections of the conduct of election in Case 28-RC-1550 be con- solidated for hearing. Pursuant to due notice, a hearing was held at Nogales, Arizona, on May 2, 3, and 4, 1967. All parties were represented by counsel and participated in the hearing. Full and complete opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to in- troduce evidence relevant to the issues, to argue orally on the record at the conclusion of the taking of the evidence, and to file briefs on or before May 26, 1967. Briefs have been received from the General Counsel and from Respondent's counsel which have been carefully read and considered. Upon the basis of the entire record in the case and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Alfonso B. Flores, doing business under the name and style of Winter-Mex Produce Company, is engaged in, and during all times material was engaged in, the brokerage and distribution of farm, orchard produce, and similar commodities. During the 12-month period immediately preceding the issuance of the complaint herein, a period representative of all times material, Respondent purchased commodities from producers located within the Republic of Mexico which commodities were shipped to Respondent's Nogales, Arizona, facilities in excess of $500,000. Dur- ing the same period, Respondent's out-of-State shipments of commodities exceeded $50,000. Upon the basis of the above-admitted facts, I find, in line with established Board authority, that Respondent is, and during all times material was, engaged in, a business affecting commerce, within the meaning of Section 2(6) and (7) of the Act, and that his business operations meet the standards fixed by the Board for the assertion of ju- risdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to mem- bership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Alleged Refusal to Bargain Collectively 1. The appropriate unit The complaint in Case 28-CA-1516, copies of which, together with notices of hearing and order consolidating for hearing Cases 28-CA-1491, 28-CA-1516, and 28-RC-1550, were duly served upon Respondent and upon the Union, alleges, Respondent's answer admits, and I find, that all dockhands, handtruckers, and truckdrivers employed at Respondent's Nogales, Arizona, facility, excluding janitors, office clericals, salesmen , and supervisors as defined in the Act, con- stitute, and at all times material constituted, a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. I further fmd that said unit insures to said employees the full and complete benefit of the right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 4 Objection A alleged that Servando Silva was offered a job as foreman if he would help defeat the Union, objection B alleged, "Silva was in fact an agent of" Respondent, and objection E alleged Rammo Amayo was discriminatorily discharged onJanuary 27, 1967 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union's majority status in the appropriate unit At the hearing, there was introduced in evidence by the General Counsel a list prepared by Respondent contain- ing the names of all persons in Respondent's employ on December 14, 1966, the date when, as found below, the Union made its demand for recognition and bargaining.5 Said list contained the names of six persons in the unit herein above found appropriate. On behalf of the General Counsel, there were offered and received in evidence six signed cards expressly authorizing the Union to represent the signers thereof for collective bargaining. The six cards" were signed on November 28, 1966, at a meeting held at the Union's Nogales, Arizona, headquarters. Later that day, November 28, Raymond Sandoval signed a union authorization card and on November 29, Roberto Moreno Peraza signed such a card.7 On December 14, Tom F. Owen, the Union's pre- sident, accompanied by Joe Bejarano, the union organizer who conducted the aforesaid original organizational meeting on November 28, at which six of Respondent's employees signed union authorization cards, and Roger Wallace, another union organizer, called upon Alfonso B. Flores, the Respondent herein, and handed Flores a letter, dated that day and signed by Owen, together with eight duplicate union authorization cards signed by the eight above-named individuals. The letter referred to above stated that the Union represented a majority of Respondent's dockhands, hand- truckers, truckdrivers, loaders, warehousemen, and the entire platform personnel; demanded that the Union be recognized as such representative and that a date be set to commence collective bargaining." Flores testified that after Owen and his associates had left his office, he checked the eight cards given him by Owen and, after checking the cards of Escareno and Pablo Moreno against certain of his business records,° he came to the conclusion that neither Escareno nor Pablo Moreno had signed the proffered cards. Flores further testified that this fact, coupled with the fact that he only had six employees at the time of Owen's visit and Owen had handed him eight cards, confirmed his belief, as ex- pressed to Owen and his associates, that the Union did not represent a majority of his employees. Despite Flores' doubt of the Union's majority status on December 14, the fact remains that the Union was, in fact, the majority representative of the employees in the unit described in Owen's December 14 letter to Flores. This finding is based mainly, but not entirely, upon the following: Escareno testified that he signed his authoriza- tion card on November 28, when he, Araiza, Valencia, German, Pablo Moreno, and Pena visited the union headquarters that day, and that all of them signed authorization cards at that meeting in the presence of each other. Pablo Moreno10 testified that he signed an authorization card at the Union's November 28 meeting 5 Actually, the list is the payroll record for the week ending December 16. fi Being the cards of Salvador Araiza, Raul Escareno, Pablo Moreno, Jesus Pena, Jorge Valencia, and Reyes German (also referred to in the record as Reyes German Moreno). 7 Although the cards of Raymond Sandoval and Roberto Moreno Peraza were received in evidence as General Counsel's exhibits, and presumably the cards were offered in support of the Union's majority status, the record clearly establishes that neither one of said two persons was in Respondent's employ at any time here material. in the presence of Escareno, Araiza, Pena, and Joe Bejarano, Bejarano testified that Escareno, Araiza, Valencia, German, Pablo Moreno, and Pena called at his office, without solicitation by any union representative, and inquired regarding the benefits they might receive if they became union members; that after explaining to them some of the benefits unionization might bring forth, the six-named persons then signified their willingness to be represented by the Union; and that after reading to the group, in both English and Spanish, what appeared on an authorization card, each of them signed a card in his presence and in the presence of each other. Under the circumstances, and upon the entire record in the case, I find that Araiza, Valencia, German, Pablo Moreno, Pena, and Escareno voluntarily signed authorization cards on November 28, 1966. Upon the basis of the entire record in the case, I find that the Union was on November 28, 1966, the duly selected and designated representative of the majority of the employees in the appropriate unit, and that, by virtue of Section 9(a) of the Act, it was on November 28, 1966, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. 3. The alleged refusal to bargain Armed with the eight signed union authorization cards,11 Owen, accompanied by Bejareno and Wallace, appeared at Respondent's office on December 14. After introductions had been had, Owen handed Flores, in the presence of Roland Maness, Respondent's assistant sales manager, eight duplicate original authorization cards12 and a letter addressed to Flores, signed by Owen, and dated December 14. The above-referred to letter was, in effect, a notifica- tion that the Union represented the persons who had signed the eight proffered cards; the signers thereof represented a majority of Respondent's "dock hands, handtruckers, loaders, warehousemen and the entire plat- form people"; the persons in said classifications con- stituted an appropriate unit for the purpose of collective bargaining; Respondent should refrain from engaging in unfair labor practices; Respondent recognize the Union as the collective-bargaining representative of the em- ployees involved; and a date be fixed for the commence- ment of bargaining negotiations. As to what transpired at the aforesaid December 14 meeting, Flores testified, and I find, that when Owen, Bejarano, and Wallace appeared at the doorway of his of- fice on December 14, he was on the telephone discussing some business with a customer; his assistant sales manager, Maness, also was in his office; when he finished his telephone conversation, Owen, Bejarano, and Wal- lace entered his office and introduced themselves to him; The details of this meeting are discussed infra. Escareno's signed "W4" form and certain of his signed payroll records and Pablo Moreno's signed "W4" forms. '" Also referred to in the record as Pablo Moreno Peraza. 11 Namely, the cards of German, Pablo Moreno, Pena, Roberto Moreno, Araiza, Sandoval, Valencia, and Escareno. 12 The Union had each signer of an authorization card sign two such cards. One set of cards was handed to Flores at the meeting here under discussion. ALFONSO B. FLORES d/b/a WINTER-MEX PRODUCE CO. 777 Owen then handed him the aforementioned recognition and bargaining request letter, together with the signed union authorization cards of Araiza, Escareno, Pablo Moreno, Pena, German, Valencia, Peraza, and Sandov- al;13 since Owen and his associates called upon him at the "heaviest hour of business," he was unable to read the letter carefully at the time it was handed to him; although he only casually examined the names appearing in the letter and on the authorization cards, he did not recognize some of these names; the letter also referred to a "Paul Escareno," whereas his employee's name was "Raul Escareno" that on account of this "discrepancy," he told Owen, "I could not accept the Union as bargaining agent for my employees, and I referred him to Mr. Conard, who in turn was to take him to our counsel," Nasib Karam, Esq.;" and Owen, Bejarano, and Wallace then left after Owen had remarked, to quote Flores' credited testimony, "Will you please read the letter and get in touch with us later ... I know you are answering the phone, and we don't want to take [up] any more of your time." Flores also testified, and I find, that Conard is, and on December 14 was, secretary-manager of the West Coast Mexico Distributors Association, an employer-associa- tion of which Respondent is a member; that said or- ganization is engaged primarily in assisting its members "do a better job of selling" their produce, securing more advantageous railroad rates, discussing "matters in the different official circles concerning produce," but it does not handle labor-management matters; and that he sug- gested that Owen and his associates contact Conard because Conard is "the in-between whenever we have any matters to discuss with anyone ... [and] so, it was for me easier [sic] to tell him to go and see Mr. Conard, and Mr. Conard would take them to Mr. Karam." Flores testified, and I find, that within an hour or so after the three aforementioned union officials had left his office, he carefully examined the eight union authoriza- tion cards Owen had handed him as well as Owen's December 14 letter; he did not recognize the names of Roberto Moreno or the name of Raymond Sandoval which appeared on two of the cards because he had never heard of either of them and because neither one had ever worked for him; and he doubted that Raul Escareno had signed the card which purportedly bore his signature because he did not have, nor did he ever have, an em- ployee named Paul Escareno (the name referred to in Owen's December 14 letter) coupled with the fact that the signature which appeared on said card did not look like Raul Escareno's. Flores further testified that because he had only six persons within the claimed unit in his employ at the time Owen handed him the )eight union authorization cards, plus the fact that he did not believe Raul Escareno had signed the card in question and that neither Roberto Moreno nor Raymond Sandoval ever worked for him, he doubted that the Union represented a majority of the em- ployees in the claimed unit. On December 14 or the day following, Flores, after he had examined the eight union cards and Owen's December 14 letter, delivered said documents to his counsel, Nasib Karam. On December 16, the Union filed a petition with the Board seeking to be certified as the statutory bargaining representative of the employees here involved. Karam credibly testified, and without contradiction, that late in the afternoon of December 15, or on the fol- lowing day, he received a telephone call from a man who identified himself as, "Tom Owen, the president of Team- sters Union Local 310 in Tuscon," who "told me that he had been to Winter-Mex and had seen Flores [and] had made a request [that the Union] be recognized as [the] authorized bargaining [agent] for the employees of' Respondent; he told Owen he would "be very glad to talk to him and discuss any matter he had pending" and then inquired of Owen what date would be convenient for Owen to confer with him; after discussing a number of possible dates, it was mutually "agreed that December 22, 1966, would be a satisfactory date to meet in my of- fice and discuss" the pending demand for recognition and bargaining; and the conversation concluded when he said, "Well, I don't know whether or not you would be the party to talk to, but we will be very happy to discuss and see whether or not we can proceed on this matter as in- dicated or whether we will have an election later on, but let us discuss it," and Owen replied, "Fine." Karam further credibly and without contradiction testified that Owen did not keep the December 22 ap- pointment, and that when he met Owen, about a week or two after said date, the following transpired between them: I said, "Well, you did not keep your appointment and we were unable to discuss anything." He said, "Well, we are going to go through with an election." On the same day the six employees had gone to the Union's Nogales headquarters15 and had signed authorization cards, or the following day, the said six em- ployees and Pedro Lozano, Respondent's general foreman, had a conversation in Respondent's warehouse. Regarding this conversation Raul Escareno testified on direct examination as a General Counsel witness as fol- lows: Q. Now, what was the conversation that took place between Mr. Lozano and this group? A. He said that the union was all right. Q. What else did he say? A. If they would comply with all of the benefits that the union promised, then it was all right. Q. What benefits was he talking about, did he say? A. We told Pedro that the union offered us all the benefits and the insurance the union has. Q. Who made this statement? Did Mr. Lozano mention insurance? A. We told Lozano, and Lozano said it was all right. Q. What did Mr. Lozano say about insurance? A. That from the union, it was all right. Q. What did Mr. Lozano say about insurance? MR. KARAM: 16 The question has been asked and answered, and the witness has said that Mr. Lozano said that from the union it was all right. The question has been asked and answered. MR. ALLEYNE:17 The answer is not responsive to the question. 13 It is to be noted, that neither Roberto Peraza nor Raymond Sandoval were in Respondent's employ at the time of this meeting " Karam represented Respondent at the hearing herein November 28. 16 Respondent's counsel. " Counsel for the General Counsel. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. KARAM: The question has been asked and an- swered, sir. TRIAL EXAMINER: Will the Reporter please read the question? (The Reporter read the pending question, as requested.) TRIAL EXAMINER: The objection is overruled, but please do not lead the witness so much. I will sustain the objection as to form. Was anything said about insurance? THE WITNESS: That those are the benefits that the union was offering us if we joined the union, once you are in the union. TRIAL EXAMINER: All right, go ahead. Q. (By Mr. Alleyne) What else did Mr. Lozano tell you at that time? A. At that time, he said it was all right. That is all. On cross-examination Escareno testified regarding the above-referred to incident, as follows: Q. Now, Mr. Escareno, after you signed the card, you say you saw Mr. Pedro Lozano? A. Yes. Q. And, was it a casual meeting at the warehouse? A. Not casual, no. We had to be there to work. Q. Yes, but I mean on this conversation, did that come up as you met each other? A. Yes, in reference to the Union, we were talk- ing there. Q. At that time, you mentioned that the Union would assist you or work for you in getting better terms and working conditions, is that not so? A. Yes, if we joined the Union. Q. And, Mr. Lozano told you that it was very good, that the Union would be able to help you out? A. Yes. Q. He did not tell you that you should not join the Union, did he? A. No. Q. And, he did -not tell you not to work for the Union or not to do anything against the Union or for the Union? A. No, he didn't say that either. Regarding the aforementioned November conversation between Lozano and the six employees who had previ- ously signed union authorization cards, Pena testified on direct examination as a General Counsel witness as fol- lows: Q. Approximately how long after you signed your card did you have your first conversation? A. I don't know whether it was one week or two. Q. Either one or two, is that right? A. Yes. TRIAL EXAMINER: Did he say weeks or days? WITNESS: Weeks. TRIAL EXAMINER: All right. Q. (By Mr. Alleyne) Mr. Pena, where did this conversation take place? A. In the same warehouse. Q. The Winter-Mex warehouse? A. Yes. Q. Who else was present at that time? 18 Also referred to in the record as Pablo Moreno Peraza. 14 Pablo Moreno and Araiza did, however, testify that a month or so after they had signed the union authorization cards, Lozano spoke to them A. I believe all of us that worked there were there. Q. What was the conversation? A. That the Union was all right. Q. Who said this? A. Mr. Lozano. Q. What else did he say? A. He said that everything was all right. Q. What else did he say? Just tell me everything that you can remember that Mr. Lozano said? A. It was the first occasion that we had a conver- sation. Q. All right, now after that, did you - strike that, I am sorry. Did he say anything more at that time about the Union? A. The same, that it was all right. Pablo Moreno,"' Reyes German, and Salvador Araiza, who, according to Escareno's and Pena's testimony, were present during the aforementioned November conversa- tion between Lozano and the six employees, testified in the instant proceeding regarding various and sundry re- marks about the Union purportedly made by Lozano but none of the three (Moreno, German, and Araiza) made any reference to any union statements which Escareno and Pena testified Lozano had made during the aforesaid November conversation. 19 Lozano testified that in December 1966 and again in January 1967, he spoke to "a majority" of the six em- ployees then under his supervision about the Union; on one occasion he told the employees, "Unions are good"; on another occasion, when the employees told him "they had joined the Union and mentioned the guarantees that were offered to them," he remarked, "It was all right, that they had done right, the Union is good sometimes"; and, on still another occasion, in response to questions put to him by some of said employees, as to how unions in general operate, he explained the workings of unions, what benefits might be derived therefrom, adding, as an example, "In California [unions] would protect the worker." Upon the entire record in the case, I find contrary to the General Counsel's contentions, that the November remarks attributed to Lozano by Escareno and Pena were not violative of the Act. Pena testified as follows regarding a conversation between Lozano and the six employees who had signed union authorization cards on November 28: Q. Now, in January of 1967, that is January of this year, did you have occasion to again talk to Mr. Lozano concerning the Union? A. I believe we had - I believe we met again. Q. Where? A. In the same warehouse. Q. Who was present at that meeting? A. I believe the ones that signed the cards. Q. And, what conversation took place at that time? A. Concerning a contract, I believe. Q. What was said about a contract? A. That it was more convenient, we could be better off with the contract. and to the other authorization card signers about a piece-rate contract. The details of these talks are set forth below. ALFONSO B. FLORES d/b/a Q. Now, who said this? A. Mr. Lozano. Q. What else did he say about the contract? MR. KARAM: I am going to object to this form of questioning, if The Court please. If he is relating a conversation, then he should tell what he said and what the other people said, what everybody said, and not single it out. TRIAL EXAMINER: All right. Tell us what everybody said. THE WITNESS: That the contract was better than being in the Union, or something like that. I don't remember any more. Q. (By Mr. Alleyne) You do not remember any more that Mr. Lozano said; or, that anybody said? A. I don't remember. Q. Now, after that, were there any more occa- sions during which you talked with Mr. Lozano about the union? A. No, sir. Escareno testified on direct examination as a General Counsel witness as follows regarding the conversation referred to by Pena and set forth immediately above: Q. (By Mr. Alleyne) Where did this conversation take place? A. In the warehouse also. Q. Who was present? A. Pablo, Pablo Moreno; Salvador Araiza; and, I. Q. What did Mr. Pedro Lozano say at that time? A. He offered us a contract, work by contract. Q. Did he specifically state what kind of contract he was talking about? Just tell us what he said, please. A. That we would earn more money; that they would pay us three and a half or three per package. Q. Three and a half cents or three cents? A. Yes. Q. Now, how much were you making at that time, per hour? A. One fifty. Q. $ 1.50 per hour? A. Per hour, yes. Q. Now, if you had been paid under the three and a half cents package plan, would this have given you more money or less money than $1.50 per hour? A. I imagine more money. Q. Did Mr. Lozano mention insurance at this time? MR. KARAM: I object to the question, I think it as- sumes something that is not true. TRIAL EXAMINER: I will sustain the objection as to form. Q. (By Mr. Alleyne) What else did he say at this time, if anything? A. He offered us that, but we told him that we did not want to work by contract, that we wanted to work by the hour. Q. Did he say anything else? A. He asked us if that was our last word. Q. Your last what? A. Our last word, if we didn't want the contract. He asked us if that was the last word. Q. After you said that this was the last word, what did Mr. Lozano say? A. That from then on, it was going to be rougher. WINTER-MEX PRODUCE CO. 779 Q. Did he explain what he meant by "It is going to be rougher"? A. In reference to the work, we were going to punch our cards if there was a truck being unloaded; and, as soon as we finished unloading, if there was not another truck, then we were going to check out. Q. Had you done these things before? A. Never. It was never accomplished, what he said was never done. On cross-examination Escareno testified as to said in- cident as follows: Q. (By Mr. Karam) Did he at any time tell you or anyone in your presence that if you rejected the Union -.no, for you to reject the Union - strike that, I will rephrase it. Did he at any time tell you to reject the Union? A. Later, the second time that we met, he talked about that. Q. What did he say A. That we should take the contract, that it was better for us. Q. What contract did he have reference to? A. That we should make arrangements with our boss. Q. Did he mention any contract to you at all? A. Yes, the contract he was asking us to take. Q. What contract? A. Three and a half per package. Q. And, you refused that? A. No, because we wanted a Union. Q. So that you ignored his statements to you and his offers? A. Yes. Q. And, you rejected everything that he proposed? A. Yes. Q. And you told him that you would not accept anything, that you wanted a Union? A. Yes, that was our last word. Q. Did he at any time after that ever mention the Union again to you? A. No, not anymore. Araiza testified that toward the end of January 1967, he had a conversation with Lozano; no one else was present; and the following ensued during said conversation: Q. Mr. Araiza, what was the conversation between you and Mr. Lozano about the Union at that time? A. He also asked me about the benefits we were going to receive from the Union. He said that if we did not join the Union, that it would be better for us to ask for a contract to benefit ourselves. Q. Did he say what kind of contract he was talk- ing about? A. Yes, usually it is worked per package. Q. This package contract, was it your understand- ing that Mr. Lozano was talking about a package contract? A. Yes. Q. Now, what is a package contract? Can you relate that to the Court, please? A. Vegetables and tomatoes that are handled there, they come in boxes, what we call a package. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What would you have been paid under this Q. Everyone then individually said, "No, we do package system? not want a contract with you"? A. Three or three and a half cents per package. A. Exactly. Q. How much were you making per hour at that time? A. $1.50. Q. Do you remember hearing Mr. Pedro Lozano Q. Now, would the package system given you at this meeting which you indicate say that the more or less money than $1.50 per hour? Unions were good and that if you wanted to belong A. More. to the Union, you could go ahead and join it9 Pablo Moreno, called as a rebuttal witness by the A. Yes. General Counsel, testified on direct examination that Lozano frankly, and without hesitation, admitted about a month and a half after he had signed the union authorization card he and the five other employees who had signed such a card on November 28, had a conversa- tion with Lozano in the employees' small office located in Respondent's warehouse Regarding said conversation, Moreno testified as follows: Q. What did Mr. Lozano say about the Union at that time? A. He asked us why we didn't reject the Union and accept what Mr. Flores proposed so we wouldn't be in any more difficulty; that it was better for us to accept the contract which is the one that we have al- ways looked for. Q. Who first talked about the contract at that time? A. Mr. Pedro Lozano. Q. Did Mr. Lozano say anything else at that time? A. That if we didn't take that opportunity, that there wasn't going to be another opportunity, Q. Did he say at that time, Mr. Moreno, just what kind of contract he was talking about? A. That he was going to pay us three and a half per package. During the course of his cross-examination regarding the conversation referred to immediately above, Moreno testified, in part, as follows: Q. Now, who was carrying on this conversation? A. Mr. Pedro Lozano. Q. Was anyone of the other individuals that I have named20 answering or carrying on this conver- sation with him? A. That we answered? Q. Yes. A. Yes. Q. Who was the one who acted as the spokesman or talked for the group? A. We all talked. Q. Did Mr. Salvador Araiza say, "No, we will not accept any contract"? A. He said it. Q. Did Jorge Valencia, "No, we will not accept the contract"? A. Yes, he said it. Q. And, did Escareno say the same thing? A. Yes, he said it. Q. And, did Pena say the same thing? A. Yes. speaking to the employees about the so-called contract. He denied, however, that his purpose in discussing the contract was to wean the employees away from the Union. Lozano testified on direct examination as a Respond- ent witness that he never told Respondent's employees that (1) if they did not support the Union he would give the employees in excess of 40 hours of work per week"' but, on the other hand, if they supported the Union the employees would only receive 40 hours of work per week, (2) if they "would reject the union , Winter-Mex would institute a contract-type of piece-rate method for remuneration for work whereby the employees would receive more than they currently were receiving," and (3) if they "did not reject the union, they would be required to strictly obey all of the company rules; report to work promptly each day; refrain from working with alcohol on their breath; and, that they would no longer be permitted to remain on the work clock when they were not actually engaged or in the process of loading or unloading produce." Lozano further testified that about January 1967, in a conversation with Araiza about the Union Araiza men- tioned that, to quote from Lozano's testimony, "He [Araiza] thought maybe that is what they [the emplo- yees] were looking for, that that is what maybe they wanted"; he could not offer the employees a piece work contract because he had no authority to do so; and he did not tell Escareno, Araiza, or Pablo Moreno "that if they didn't accept work under the contract, or that if they ac- cepted the union, that it would be rougher on them." In the light of my observation at the hearing of the con- duct and deportment of Lozano, Pablo Moreno, Escareno, Pena, and Araiza, and after very careful scru- tiny of the entire record, I find that Lozano's version of what was said by him and by the others on the occasions referred to by Pablo Moreno, Escareno, Pena, and Araiza to be substantially in accord with the facts. this finding is based mainly, but not entirely, on the fact Lozano im- pressed me as being a person who was careful with the truth and meticulous in not enlarging his testimony beyond his memory of what was said on the occasions in question. On the other hand, each of the four-named em- ployees gave me the distinct impression that he was at- tributing certain antiunion remarks to Lozano, which, in- cidently, Lozano did not make, because they thought such testimony would be to the best of the Union.22 Araiza, Escareno, and Pena each testified that in 211 Referring to the six employees who had signed union authorization cards on November 28 11 The employees work on an hourly basis. 22 This is not to say that Lozano was not confused on certain matters or that there were no variations in his objectivity and convincingness. How- ever, the candor with which he admitted that he could not be certain as to dates, times, the persons present, or the exact words used by the partici- pants to the conversations in question, only seems to add credence to what a careful study of his testimony shows that he honestly believes to be the facts. ALFONSO B. FLORES d/b/a January 1967, Flores told them, in the presence of Pablo Moreno and employee Jorge F. Valencia, that he would raise their pay from $1.50 an hour to $1.75 per hour and also give the employees fully paid insurance provided they rejected the Union as their bargaining representa- tive. Araiza also testified, after he had been shown an af- fidavit given by him to a Board agent for the purpose of refreshing his recollection, that in January 1967 he had a conversation with Flores, with no one else present, wherein Flores remarked that he was aware that the Union would try to obtain working conditions for the em- ployees; that if the employees had come to him before going to the Union, he would have given them better working conditions; and that if the employees "decide to reject the Union, I will give you more benefits and a raise in salary" and a company-paid insurance plan. Pablo Moreno testified, and as noted above as General Counsel's rebuttal witness, that in a conversation with Flores which took place in December, at which no one else was present, after Flores had stated he was disgusted "with me because I had signed that card and hidden from him the Union," Flores inquired "Why hadn't we talked to him before signing those [authorization] cards, that we could have had some arrangement without necessity of a second person"; Flores then "proposed to me that I re- ject the Union; he could better me without the necessity of joining the Union; he could raise my pay and get me the life insurance if I would reject the Union"; Flores re- peatedly requested that he decide right then and there if he were "for the Union or for him"; and when he said he would "think it over," Flores reminded him "that I was a man and that I could decide at that moment." Pablo Moreno also testified that toward the end of March 1967, Flores gave him about $27 in cash being the 25-cent-per-hour increase in pay retroactive "from the month of January up to the date we told him we were going to reject the Union. -23 Flores frankly, and without hesitation, admitted that he discussed with the six employees in question, either in- dividually or with several of them together, the Union and their memberships therein; when they told him they had joined the Union because "we want to see what is going to happen" he said, "That is all right. You have the privilege and prerogative to do anything you want. The Unions are all right"; and he never spoke about the Union to all the employees as a group. Flores denied that he ever told any of his employees that (1) the employees should have come to him before "seeking union representation, that [he would give] them better working conditions if they had done so"; (2) he would give the employees a wage increase and better their working conditions if they rejected the Union; (3) if the employees "insisted on being represented by the union [he] would have to protect [himself] and that [he] would fight to the last to keep the union out"; (4) the em- ployees would have less than 40 hours of work per week if they did not reject the Union and if they, on the other hand, rejected the Union they would have in excess of 40 hours of work per week; (5) he would raise the em- ployees' pay from $1.50 per hour to $1.75 per hour and 23 It is significant to note that there is absolutely no evidence in the record, credible or otherwise, that Pablo Moreno or any other employee told Flores that he was "going to reject the Union." 24 Also referred to throughout most of the record and in this Decision WINTER-MEX PRODUCE CO. 781 that their pay increase would be retroactive from January 1, 1967; and (6) he would give the employees company- paid insurance. After being asked a series of questions regarding state- ments attributed to him by various employee witnesses to which he denied making, Flores was asked the following question on direct examination by his counsel and he gave the following answer: Q. Did you say anything of the nature substan- tially that covered these particular matters that I have indicated in the last few questions? A. Yes, what I said, I said, "Well, I know that you were satisfied. I wish I had known before. At least, I would know the reason for your joining the union." And, I said, "But, the thing is over now, we have to wait until the election is over." Upon the record as a whole and from my observation of the witnesses while they testified I am convinced, and find, that Flores' version of what he said to the various employees during his conversations with them to be sub- stantially in accord with the facts. I further find that Flores never asked any of his employees to forsake the Union nor did he offer his employees wage increases, better working conditions, or company-paid insurance for the period commencing November 28, 1966, to the date of the Board-conducted election. These findings are based mainly, but not entirely, on the fact that Flores, like Lozano, impressed me as a truthful and forthright witness and, as found above, Pablo Moreno, Pena, Escareno, and Araiza did not so impress me. There is certain testimony in the record relative to the curtailment of the employees' hours. The General Coun- sel points to this testimony in support of the 8(a)(1) and (5) allegations of the complaint. It would serve no useful purpose to set forth at length this testimony for I find that the employees received less work during this short period because Flores was endeavoring to hire additional help in anticipation of his busy season and used this opportunity to "break in" certain newly hired employees. This procedure in no way violated the Act for it was put into effect for business reasons only. Upon the record as a whole, I find that the allegations of the complaint in Case 28-CA-1491 and the allegations of the complaint in Case 28-CA-1516 that Respondent has engaged in and is engaging in acts and conduct viola- tive of Section 8(a)(5) and (1) of the Act are not supported by substantial evidence. Accordingly, I recommend that the allegations of the complaints in the above-numbered cases that Respondent violated Section 8(a)(1) and (5) of the Act be dismissed. B. The Discharge of Carlos Molina Sandoval24 Molina testified that on January 24, 1967,25 the day he was hired by Lozano, the latter said to him, to quote from Molina's testimony, "If I joined the Union, I was em- ployed to work only 40 hours; and, if I were on their part, that I was going to work more than 40 hours"; about a week after he commenced his employment with Respond- ent he signed a union authorization card; and about a as Carlos Molina. 25 At one point, Molina testified that he was hired on January 27. Lozano testified that Molina worked for Respondent from January 13 to February 3,1967. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week thereafter he was discharged without being given a reason for the discharge. Lozano denied that he ever discussed the Union with Molina or that he made the above-quoted remark Molina attributed to him. I accept as true Lozano's denial and find that he did not make any such remark nor did Lozano, at any time material, talk to Molina about the Union. It is incredible that a newly hired employee would be told by Lozano that the employee would receive less work if he joined the Union when every "old time" em- ployee who testified herein quoted Lozano as saying that unions were "good." Lozano testified that Molina was discharged because he was a dissatisfactory employee in that he lacked ex- perience, had to be shown "every moment how to do the work, and, the other boys had to wait a long time and they would complain about him"; he did not know that Molina was a union member; and Molina's union membership, sympathies, and activities played no part in his decision to fire Molina. Molina testified, under questioning by Respondent's counsel, that some of his coworkers told him that he "should pitch in and help more, that [he was] not doing his share" of the work. Upon the entire record in the case, I find that Molina was discharged for cause and not for the reasons alleged in the complaint, Case 28-CA-1491. This finding is but- tressed by the fact that there is absolutely no evidence in the record that Respondent, or any of his supervisory per- sonnel, had any knowledge of Molina's union member- ship, sympathies, or activities prior to Molina's discharge. Accordingly, I recommend that the allegations of the complaint in Case 28-CA-1491 with respect to Molina be dismissed for lack of substantial proof. As has been seen throughout this Decision, the prepon- derance of the credible evidence establishes that Respond- ent engaged in no activity proscribed by the Act. Under the circumstances, I recommend that the complaints in each of the above-numbered cases be dismissed, that the Union's objections to the conduct of the election be over- ruled, and that the Regional Director for Region 28 certi- fy the results of the Board's March 21, 1967, election.26 in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is, and during all times material was, a labor organization within the meaning of Section 2(5) of the Act. 3. All Respondent ' s dockhands , handtruckers, and truckdrivers , excluding janitors, office clericals, salesmen, and supervisors as defined in the Act con- stitute, and at all times material constituted , a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 28, 1966, a majority of Respond- ent's employees in the appropriate unit, described im- mediately above, have been members of the Union, and at all times since said date, the Union has been the duly designated and selected representative of a majority of the employees in said appropriate unit for the purposes of collective bargaining, and, by virtue of Section 9(a) of the Act, has been , and now is , the exclusive representative of all the employees in said unit for the purposes of collec- tive bargaining with respect to grievances , labor disputes, pay, wages , hours of employment , and other terms and conditions of employment. 5. The allegations in the complaint in Case 28-CA-1491 that Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) and the allegations of the complaint in Case 28-CA-1516 that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act have not been sustained. RECOMMENDED ORDER It is recommended, upon the basis of the foregoing findings of fact and conclusions of law, that the com- plaints in Cases 28-CA-1491 and 28-CA-1516 be dismissed. RECOMMENDATIONS ON THE UNION'S OB- JECTIONS TO THE CONDUCT OF ELECTION CONCLUSIONS OF LAW 1. Alfonso B. Flores, an Individual Proprietor, d/b/a Winter-Mex Produce Company, Nogales, Arizona, is en- gaged in, and during all times material has been engaged zs At the conclusion of the General Counsel's case-in-chief, Respond- ent's counsel moved to dismiss the complaints for lack of proof. The mo- tion with respect to the complaint in Case 28-CA-1516 was denied. As to the motion with respect to the complaint in Case 28-CA-1491 decision thereon was reserved. The motions to dismiss were renewed at the close of the taking of the testimony herein at which time decisions thereon were On the basis of the findings heretofore made in section III, above, it is recommended that the Regional Director for Region 28 overrule the objections filed by the Union on March 25, 1967, and certify the results of the election held on March 21, 1967. reserved. The motions are herewith granted. Appended to the General Counsel's brief were proposed Conclusions of Law, proposed Recommended Order, and a proposed Notice The proposed Conclusions and Order are disposed of in accordance with the findings, conclusions , and recommendations herein set forth