IBEC Packing Co., Inc.

IBEC PACKING CO., INC. 417 IBEC Packing Company, Inc. and Confederacion Laborista de Puerto Rico. Case 24-CA-2971 December 2, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 24, 1971, Trial Examiner Arthur M. Goldberg issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, IBEC Packing Company, Inc., Maya- guez, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. r In adopting the Trial Examiner's finding that the dischargee, Carmen Rodriguez, was not a supervisor, we do not rely on the stipulation in the agreement for consent election that leadgirls be included in the unit. The record supports the Trial Examiner's finding that Rodriguez did not exercise any of the indicia of supervisory status set forth in Section 2(11) of the Act. supervisor and therefore not protected by the Act and that the discharge was effectuated for good and sufficient reasons connected with her employment. Additionally, on the basis of a lack of information, belief, and knowledge, the answer denied that the Umon is a labor organization within the meaning of the Act. At the opening of the hearing, over Respondent's objections, General Counsel was permitted to amend te complaint in the following respects. First, paragraph IV 'of the complaint, naming alleged supervisory personnel, was amended to add the names of Emma Padilla as forelady and Hiram Diaz as supervisor of the packing and chilling room. Second, a new paragraph IV-A was added alleging that Hiram Diaz, on various dates in July 1970, told employees that if the Umon won the election the plant would be closed. Third, a new paragraph VI-B was added alleging that on July 31, 1970, Forelady Emma Padilla asked an employee if she was going to vote in the election to be conducted that day and told the employee that if she voted for the Respondent she had nothing to fear. Respondent's answer was amended to include a general denial of these allegations and to assert the further defense that Diaz is a supervisor "in the same way and to the same extent that Mrs. Carmen Rodriguez was a supervisor." Finally, the Respondent asserted that if the alleged statements were made they were protected under the freedom of speech provision of the Act. All parties participated in the hearing in Mayaguez, Puerto Rico, on May 5 and 6, 1971, and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, and to present oral argument. Oral argument was waived by all parties and a brief was filed by the Respondent only. Based upon the entire record in the case, my reading of the Respondent's brief, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Based upon a charge filed on January 12, 1971, by Confederacion Laborista De Puerto Rico (herein called the Union or the Charging Party) the complaint herein issued on March 17, 1971, alleging that IBEC Packing Company, Inc. (herein called the Company or the Respondent), violated Section 8(a)(3) of the National Labor Relations Act, as amended (herein called the Act). The Respondent's alleged unlawful conduct consisted of the discharge of Carmen I. Rodriguez on January 7, 1971, because of her membership in and activities on behalf of the Union. The Company's answer admitted the discharge but denied all material allegations of the complaint. The answer set up as affirmative defenses assertions that Rodriguez was at all times material herein a IBEC Packing Company, Inc., is a corporation of the Commonwealth of Puerto Rico engaged in the processing and canning of tuna fish at its plant located at Mayaguez, Puerto Rico. During the year 1970 the Company purchased and had shipped directly to its Mayaguez, Puerto Rico, plant tuna fish' and other materials necessary for the conduct of its business valued in excess of $50,000. During the same period the Company processed and canned tuna fish valued in excess of $50,000 which was shipped to points located outside of the Commonwealth of Puerto Rico. The complaint alleged, the answer admitted, and I find that the Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for the assertion of its jurisdiction. 194 NLRB No. 65 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED Confederacion Labonsta De Puerto Rico admits employ- ees to membership and maintains collective-bargaining relations with a number of employers. The Union complies with the filing requirements of the Labor-Management Reporting and Disclosure Act of 1959. Pursuant to a petition for election filed by the Union the Company, the Union and the Seafarers International Union entered into an agreement for consent election on May 26, 1970,1 under the terms of which the Union participated in a representa- tion election on July 31 seeking to represent the employees of the Company for the purposes of collective bargaining. I find that the Union is, and was at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The Company's Operations The Company employs approximately 400 persons in its Mayaguez plant. Approximately 300 of the employees are production workers assigned to six departments. Only the organization and operations of the packing room, where between 150 and 160 persons including acknowledged supervisors, leadgirls and leadmen are employed, are of significance in this proceeding. In the packing room the precooked fish is brought from the chilling room2 to tables where employees, working with their hands and knives, clean the fish preparatory to the actual packing. There are a total of three Imes in the packing room. Carmen Rodriguez, the alleged discrimina- tee, was employed as a leadgirl assigned to line 1 in the packing room. On line 1 three cleaners are assigned to each table and there are a total of 20 to 21 tables in operation at all times depending upon the daily attendance. When the fish arrives at the table on line 1 the first employee, called the "cleaner," removes the skin, opens and removes the bones from the fish, and passes it on to the second girl. The second employee at the table, called "pet food," removes the blood and meat in which the blood is present and any bones which remain. The third employee polishes the loin of the fish with her hand. As this employee polishes the loin and removes any remaining bones she also removes small pieces of fish which fall off in the polishing operation. These small pieces of fish are called the "grated." The grated appears not only at the polishing stage but in the operation of removing the pet food as well. These small pieces of the tuna are too small to be packed in the loin and are canned separately for use in sandwiches. After polishing, the loin is placed on a conveyor belt where it is scrutinized by inspectors who report to and are supervised directly by the forelady and assistant forelady. As the grated accumulates on the table it is put into a loose pile. Carmen Rodriguez, at the time of her discharge, was assigned to the task of going to each of 10 tables in line I Unless otherwise noted all dates herein were in 1970. 2 The chilling room is part of the packing room 3 This description of the packing room operations is based on plant superintendent Seda's testimony 4 While there is evidence that certain of the other leadgirls exercise 1 to inspect the grated. If she found that it was clean and fit for human consumption, without bones or blood, she would then pat the grated into a firm pile and move on to the next table. Rodriguez was followed by a man with a tray who would remove the piles of grated which she had inspected and passed.3 B. The Discharge of Carmen Rodriguez 1. Rodnguez's asserted supervisory status The packing room line of supervision, as testified to by Jaime Seda, the plant superintendent, is head by Rafael Vazquez, the production coordinator who is in charge of the entire packing room, including the chilling room, with responsibility for the cleaning of the fish. Sixto Nieto is Vazquez' assistant. Emma Padilla is the forelady of the packing room and Ines Lebron, with the title of leadgirl, is assistant forelady under Emma Padilla. There does not appear to be any contention that the foregoing named persons are not supervisors within the meaning of the Act. In addition to the production coordinator, assistant production coordinator, and forelady, there are seven women employed in the packing room who bear the title "leadgirl" and one male employee, Hiram Diaz, who is the "leadman" in the chilling room. Included among the seven leadgirls, as noted above, is Ines Lebron, who was designated in Seda's testimony as assistant forelady. Carmen Rodriguez, the alleged discriminatee, is also included among the seven leadgirls. Respondent contends that as a leadgirl Rodriguez was a supervisor within the meaning of the Act and therefore not protected by the provisions of Section 8(a)(3).4 On May 26 the parties entered into an agreement for consent election following filing of the Union's petition for election.5 Miguel J. Pla, personnel manager, signed for the Company. That consent-election agreement contains the following under the heading "The Appropriate Collective Bargaining Unit:" Included: All hourly paid production and maintenance employees employed by the Employer at its factory in Mayaguez, P.R. including probationary employees, chauffeurs, janitors, messengers, timekeepers, record keepers, leadmen and leadgirls. Excluded: All office clerical employees, sporadic employees, guards and supervisors as defined in the Act. In the instant proceeding Pla testified that together with his attorney he attended the meeting at which the consent election agreement was negotiated, that he raised no objection to inclusion of the leadgirls as ordinary employees, and that when he signed the consent election agreement he was aware he was affixing his name to a document which stated that leadgirls were not supervisors as defined in the Act. Finally Pla was asked: Q. In what way did the duties of the leadgirls change after May 26, 1970? supervisory authority and are not employees within the meaning of the Act, I do not deem it necessary to resolve their status for the purposes of this Decision. 5 Case 24-RC-4105. IBEC PACKING CO., INC. 419 A. In no way. While the stipulation of the parties contained in the consent-election agreement is not dispositive of the issue of Rodriguez' putative supervisory status, it does have "persuasive relevance." 6 It has been held recently by the Board that as to stipulations of the parties in representation cases deference should be afforded to the intent of the parties where such intent is not inconsistent with any statutory provision or established Board policy.? Certainly, the stipulation of the Respondent on May 26 represented its intent to demon- strate that the leadgirls were not supervisors. As to the situation as of that date its stipulation should be binding upon the Respondent. Unlike the situation in Birmingham Fabricating Co., 140 NLRB 640, the stipulation in this case as to the supervisory status of the contested employee does have probative value, because in the instant proceeding there is the testimony of Respondent's personnel manager that the duties of the leadgirls have changed "in no way" since the stipulation was entered into on May 26.8 Accordingly, based upon Respondent's May 26 stipulation that the leadgirls were employees and not supervisors, coupled with Pla's testimony that their duties have not changed since that date, I would find that Rodriguez was not a supervisor within the meaning of the Act .9 In any event, the record testimony fails to establish that Rodriguez exercises any of the indicia of supervisory status set forth in Section 2(11) of the Act.10 Thus, the evidence in this case establishes that Rodriguez did not have authority to hire or fire employees, she could not recommend increases or decreases in their pay, nor could she recommend the hiring or firing of employees. Rodriguez did not attend meetings of supervisors which, Lillian Rivera a witness called by the Respondent testified, were attended by line supervisors including Lillian Rivera, Emma Padilla, the forelady, and production coordinator Vazquez." Rodriguez did not have the responsibility or authority to punch the time and production cards of the employees at the tables. She could not transfer employees to fill a vacancy but could only ask the forelady to move an employee to fill the gap. Rodriguez did not direct the work of other employees. Rather than establishing that Rodri- guez was a supervisor, the evidence indicates that she was 6 Amalgamated Clothing Workers of America, AFL-CIO v N L R B. [Sagamore Shirt Co 1, 365 F.2d 898 (C.A D C ) 7 The Tribune Company, 190 NLRB No 65. 8 In Birmingham Fabricating Co., supra, p 642, fn 2, the Board noted that the stipulation as to supervisory status in that case "is not evidence of their status during the times material here which long predated that stipulation." In the instant proceeding Pla's testimony establishes that the status of the leadgirls was unchanged from the time that the Respondent stipulated that they were employees and not supervisors within the meaning of the Act 9 As with the findings of the Regional Director in a representation proceeding, the stipulation of the parties should be accorded "persuasive relevance," . "aiding the Examiner and the Board in reaching just decisions, subject however to power of reconsideration .. in the light of any additional evidence that the Examiner finds material and helpful to a proper resolution of the issue." Amalgamated Clothing Workers of America v. N.LR B [Sagamore Shirt Co.], supra, p 905. Cf. The Tribune Company, supra 10 Section 2(11) of the Act provides- "The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their an inspector assigned to scrutinizing the grated and pet food which had been cut out of the fish by the cleaners at the table. Thus, Rivera testified as follows: Q. What position did she (Rodriguez) occupy then? A. Leadgirl also. Q. What were her duties during 1970 as leadgirl? A. To inspect the grated as well as the pet food. Rodriguez's duties were best summarized in her own words. When asked if she directed the work of employees, Rodriguez answered, "no, what I did was check the fish, not the persons." In sum, based upon the record testimony, I find that Rodriguez was an employee within the meaning of the Act.12 2. Rodriguez employment record Carmen Rodriguez was hired by Respondent in 1962 as a fish cleaner. After some 2 years on that job she was promoted to the position of inspector and had been a leadgirl since March 1969. On August 4 Rodriguez was transferred from her prior job of checking the scrap on 20 tables of line 1 to inspecting the grated and pet food on 10 tables. Plant Superintendent Seda testified that her moves from fish cleaner to inspector and then to leadgirl constituted promotions. Respondent maintains personnel files on each of its employees. Seda testified that he had examined Rodriguez' personnel folder and that her employment history revealed that other than a mimeographed form notice in 1964 given to her because of poor production there were no warning notices or memoranda in her file dated prior to June 17, 1970.13 3. Rodriguez' union activity The Union's campaign to organize the Company's employees began sometime in April. Rodriguez signed a card for the Union on April 8 at the request of Mrs. Iglesias, a union organizer who at one time had been a company forelady. Thereafter, Rodriguez solicited authorization cards for the Union, visited with workers outside the plant, and turned the signed cards over to Iglesias. In addition, grievances, or to effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." ii Rivera testified that in 1970 these meetings were attended by the production coordinator, the forelady, Glona Ramirez who was in charge of line 2, Rossaura Martinez in charge of line 3, Rivera who had responsibility for line I, and Ines Lebron who is in charge of the inspectors. Rivera testified that Rodriguez did not attend such meetings "because she was not a line supervisor." i2 In connection with Respondent's claim that Rodriguez was a supervisor I note that in the course of the organizing campaign she was called to a meeting with -management personnel at which time she was accused of carrying on union activities on the job during working hours. However, Respondent, which showed its awareness of the limitations the law imposes on protected activities by seeking to interdict her asserted union activity during working hours, did not raise the question of Rodriguez' right to engage in activities on behalf of the Union because of any putative supervisory status. 13 Personnel Manager Pla testified that as far as he knew the Company had no trouble with Rodriguez in all the years she worked prior to the election. 420 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD Rodriguez, "during April, May, June, July and after the election up until August" 14 distributed union leaflets at the one plant gate affording ingress and egress for the employees at quitting time in the afternoon. Seda testified that he knew Rodriguez was active in the Union.15 Sometime in May, during the organizational campaign, Rodriguez was directed by Forelady Emma Padilla to go to the personnel office where she met with Personnel Manager Pla, Seda, and Production Coordinator Vazquez. In the course of this meeting Pla accused Rodriguez of "making propaganda inside the company during working hours." Rodriguez denied the accusation and asked that she be afforded the opportunity to confront the persons who had accused her of carrying on union activities in the plant during working hours. Rodriguez told the management personnel present that she could have spoken to people in the plant but it did not have to be about the Union. Rodriguez testified that Pla advised her that if she continued her activities for the Union inside the plant they would take her to a place where the law prohibits engaging in such activity. Seda testified that he had told Rodriguez that he had seen her engaging in such activity. When Rodriguez said that she had her ideals and was working for the Union, Seda claimed to have advised Rodriguez that she could carry on activities for the Union but not during working hours in the production area. Sometime in May two leaflets were distributed in the plant expressing views opposed to unionization. The first such handbill, signed by Hiram Diaz, leadman in the chilling room, contains the following: As to Mrs. Carmen Rodriguez, I'll say that she has been called to all the meetings, she is still part of our Company, we appreciate her and respect her ideals, even though they may be erroneous. The second leaflet signed "several fellow workers" is essentially an attack on Mrs. Iglesias. As to Rodriguez, this handbill contains the following language: Concerning Mrs. Carmen Rodriguez, when a meeting is held in the office when something is going to be said about the union, she has been ignored because what is -going to be discussed are personal problems and, for that reason, she has been excluded because if what is going to be said in the office is about the union she would not be interested, she is only interested in THE REPORT she might give to the AWAKENING. 4. The events leading to Carmen Rodriguez' discharge As noted, from the time she was hired in 1962 until June 17, including a period of approximately 16 months as a leadgirl, Rodriguez received only one warning, that for low production. Rodriguez joined the Union almost immediate- ly after the organizing campaign began and was openly active on its behalf. On June 17 a memorandum from Forelady Emma Padilla to Plant Superintendent Seda was placed in Rodriguez' personnel' file advising Seda "that for more than 3 months, leadgirl Carmen J. Rodriguez has not talked to any of her fellow workers." The memorandum went on to say that the other leadgirls did not speak to Rodriguez either and that Padilla did not know the reasons for this lack of conversation between them but that Padilla had noticed that the situation led to a lack of communica- tion, cordiality, and companionship. Padilla concluded with the statement "for this reason I find this leadgirl ineffective." Seda noted on this memorandum that he agreed with •Padilla's appraisal of Rodriguez' attitude and that while he did not know why Rodriguez assumed this attitude it was not "the best toward her fellow workers." The Union was defeated in the representation election on July 31. The next day that the plant worked was August 4. When Rodriguez reported to work she was surprised to see the other leadgirls wearing a new uniform while she was still wearing the old attire. Rodriguez had not been informed about the change. After work Production Coordinator Vazquez asked whether it was true that Rodriguez would wear the safe uniform as the other leadgirls. Rodriguez asked Plant Superintendent Seda why she could not wear the same uniform. According to Rodriguez, "he answered that if I put it on I would have to face the consequences." Seda did not explain what he meant by this statement and directed Rodriguez to go to Forelady Padilla for authoriza- tion to wear the new uniform. Padilla told Rodriguez that she could not wear the new uniform without authorization following a meeting with Seda and Vazquez. Rodriguez waited for a decision as whether she could change her uniform but when no such action was forthcoming she determined to go to the Board about the matter. On September 8, Rodriguez requested permission from Personnel Manager Pla to be absent from work the following day so that she could go to the Board's Regional Office. Pla directed Rodriguez to bring him a certificate from the Regional Office that she had been there. The same day, September 8, Pla put a memo in Rodriguez' personnel filed addressed to Forelady Padilla stating that Rodriguez had requested permission to be absent "since she alleges she has been summoned by the National Labor Relations Board." Pla concluded by stating that he had excused Rodriguez but had instructed her to bring "the summons" when she returned to work on Thursday, September 10. Rodriguez visited the Regional Office on September 9, but the investigator assigned to matters concerning the Company was not there that day. A Mrs. Morales at the Regional Office gave Rodriguez a typed statement stating: Mr. St. Bernard, who was handling the investigation of the IBEC Packing case, is not in the office today. Should he consider it necessary to interview you, he will get in touch with you either by letter or in person. Rodriguez did not work on September 10 because Pla would not accept Morales' statement as an excuse for her absence the preceding day. Pla claimed that Rodriguez had asked for permission to keep an appointment which had not existed. Rodriguez denied having told Pla that her visit to the Board had been arranged in advance. Pla placed a memorandum in Rodriguez' personnel file dated Septem-, ber 10, addressed to Forelady Padilla, stating that Rodriguez had reported for work but had not brought in the summons from the Board. The memorandum concludes 14 Testimony of Rodriguez. 15 Personnel Manager Pla was less candid When asked if he was aware of Rodnguez's union activity Pla answered, "I think so " IBEC PACKING CO., INC. 421 with the statement "for that reason she asked to be given time to go to the office to get it in order to bring it." Rodriguez reported back to work on September 11 at her regular reporting time of 7 a.m. However, she was not permitted to start work until an hour and 15 minutes later after Pla had arrived at the plant and Rodriguez had met with him. Pla again insisted that Rodriguez had asked for permission to be off on September 9 because of an appointment with the Board but later allowed her to resume work. She was not paid for the time she lost on September 10 and 11 and her attendance record for September 9 and 10 was marked absence without notification, and she was marked late for the time she had spent waiting for Pla on September 11. As to all memoranda and warnings placed in her file starting with that of June 17, Rodriguez was not informed in any way or at any time that such documents were being placed in her file nor was she shown any of the memoranda which were addressed to aspects of her work following June 17.16 The next memorandum in Rodriguez personnel file is dated September 18. This document, captioned "Inspection of Scrap," carries the notation that it is from Forelady Padilla and Production Coordinator Vazquez but is signed by Seda. The memorandum notes that on a number of occasions Seda had noted Rodriguez inspecting scrap whereas it was his understanding that this was the job of leadgirls Lillian Rivera and Virginia Rodriguez while Carmen Rodriguez was to inspect the pet food and the grated. Seda asked Padilla and Vazquez to notify him if these functions had been changed as he feared that having three leadgirls inspect the scrap would lead to improper inspection of the pet food and grated. Seda asked that they investigate and take the proper corrective action. The next documents in the personnel file are dated October 14 and 15 and relate to a complaint about Rodriguez' "uncommunicative attitude." The first memo- randum, from Forelady Padilla to Production Coordinator Vazquez, complained that Rodriguez showed annoyance at being given instructions and on one occasion she had complained "in an annoyed tone" that she could not take care of the pet and grated at the same time. Padilla concluded, In view of the situation, I recognize that this Lead- girl is completely lacking in efficiency and I believe her to be hardly competent. I wish to make you aware of the situation between this lead-girl and her work and that if she does not improve within six to seven weeks, I would recommend that she be discharged due to her inefficiency. The October 15 memorandum is from Vazquez to Seda recommending that a meeting be held with Rodriguez and any other person involved "in as much as other times she has been admonished verbally." Seda testified that no action was taken on Vazquez' recommendation for a meeting with Rodriguez. On October 20 Seda placed a memorandum in the file addressed to Personnel Manager Pla complaining about Rodriguez' attitude toward Maria Padilla which, he said, was causing trouble between Maria Padilla and a cleaner named Rosa Marie Seda. In this memorandum Seda explained that not much is required to make someone else feel bad and that "probably the ironic smile given to Maria Padilla caused Padilla's upset." The memorandum con- cludes with the statement "I'm writing this down because the minute I hear again that Maria Padilla is being mistreated, there will be a recommendation for disciplinary action." No memorandum was put in Maria Padilla's file concerning the incident between her and cleaner Seda. There are two memoranda in Rodriguez' personnel file dated December 23. The first, from Forelady Padilla to Vazquez states that Padilla had allowed a reasonable length of time to go by but that Rodriguez continued to demonstrate "a negative attitude and lack of interest in her work." Padilla states that leadgirl Lillian Rivera, in charge of line 1, claimed that Rodriguez refused to follow orders and that instead of doing her own job of inspecting the grated and pet food she continued to check the scrap which was the job of another leadgirl. Padilla noted that she would be admonished if fishbones were found in the grated. Padilla recommended "that the proper action should be taken, inasmuch as she does not speak to her other coworkers and her attitude is completely negative." The second December 23 memorandum is from Vazquez to Seda stating that in view of Padilla's memorandum he did not believe that the situation could continue and recom- mending that Rodriguez be dismissed. The next personnel file entry is a two-page memorandum from Seda to Personnel Manager Pla referring to Padilla's December 23 memorandum. Seda stated that Rodriguez does not speak to other leadgirls unless she is questioned, noted that her attitude toward the leadgirl in charge of line 1 was completely negative, and expressed the view that she would not change her attitude as he saw no effort on her part to improve. Seda referred to his September memoran- dum in which he had referred to Rodriguez performing the tasks assigned to other leadgirls and his belief that her failing to check the grated was leading to complaints about bones in the Company's products. Seda stated that the leadgirls had been told that grated inspection was very poor but Rodriguez continued to spend her time checking the loins and scrap. Seda noted that good communication was important in the performance of any job and he did not believe the Company would be able to accomplish this with Rodriguez. Seda concluded with the suggestion that the matter be discussed with Rodriguez' forelady and the production coordinator as soon as possible. The plant closed- for vacation at the end of the workday on December 23 with production scheduled to resume on January 7. On December 29 Rodriguez went to the plant to pick up her pay and nothing was said to her at that time about her continued employment. When Rodriguez reported for work on January 7 she was told not to start work but to go to Production Coordinator Vazquez' office to wait for Personnel Manager Pla. There Rodriguez spoke to Pla on the phone and he advised her that her job was 16 Seda testified that it was he who had written a memorandum to the memorandum was not a warning but more in the nature of an expression personnel department regarding the way Rodriguez had requested of his feeling concerning the manner in which an employee should ask for permission to be absent on September 9. Seda testified that his permission to be absent at the close of a day. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ended. Pla said nothing further and Rodriguez did not ask the reasons for her discharge because it had come as a surprise to her. During the afternoon of January 7 Rodriguez called the plant to speak to Pla but he was not there and she spoke to Vazquez asking for a letter concerning her discharge. Vazquez replied that the Company did not issue discharge letters even though she claimed that she needed one to draw unemployment compensation. Vazquez offered to talk to Pla and stated that a letter would be sent to her home. Rodriguez called the plant a second time on January 7, on this occasion speaking to Pla, reiterating her request for a discharge letter. The last two entries in Rodriguez' personnel file consisted of a memorandum from Vazquez to Seda dated January 7, 1970,17 and second a memorandum from Seda to Pla dated January 8, 1971, transmitting Vazquez' memorandum. In Vazquez' memorandum the production coordinator reports on his telephone conversation with Rodriguez on January 7, 1971, wherein she had asked for a discharge letter from Pla. Vazquez claimed that Rodriguez became angry and called Vazquez "a son-of-a-bitch." Seda's note to Pla transmitted Vazquez' memorandum of the previous day and suggested that the document be kept in Rodriguez' file although she was no longer employed.18 Although a letter was subsequently sent to the Company demanding her reinstatement, the Respondent has never given Rodriguez any reason for her discharge. Following filing of the charge in the instant proceeding on January 19, 1971, the Company wrote to the Board's Regional Director setting forth the reasons for her discharge as follows: In relation to the employee Carmen I. Rodriguez, the latter was discharged for inefficiency, a negative attitude, little communication and excessive absentee- ism. For such reasons her supervisors recommended that the employee wasn't of any use to them on the job.19 Seda testified that Rodriguez was "insubordinate" because, as he claimed to have witnessed, she was reluctant to take instructions from her line supervisor and did not obey those instructions. He claimed she disobeyed instructions by refusing to devote herself to inspecting the grated and pet food and instead did the work of other leadgirls so that her ownjob was not satisfactorily performed. Seda's characteri- zation of Rodriguez' alleged inefficiency again referred back to her failure to spend full time on her own job of inspecting the pet food and grated resulting in an excessive amount of bones in the grated. Seda referred to a meeting with Rodriguez and the other leadgirls at which the customer complaints about bones in the grated were discussed and steps to be taken to correct the situation had 17 This is quite obviously a misdating and should read 1971. 18 During examination of Rodriguez Respondent sought to establish that she had characterized Vazquez as stated in his January 7, 1971, memorandum. Rodriguez denied the accusation claiming instead that she had told Vazquez he should remember there was a God in heaven and that a time would come when everything done on earth would have to be paid for up there Vazquez was not called to testify in this proceeding. Based upon her demeanor while denying the accusation directed against her, coupled with the Company's failure to call him as a witness. I credit Rodriguez' disavowal of the accusation contained in Vazquez' memoranda. Accordingly, I conclude that the Company has failed to establish that she been proposed. Seda claimed that after that meeting complaints about bones. in the tuna continued. Seda did not claim to have spoken to Rodriguez again about any alleged continuation of customer complaints. As to Rodriguez' alleged "negative attitude," Seda stated that this stemmed from her refusal to talk to Seda, or to the other leadgirls and other persons at her level of supervision, "dust did not talk to anyone at all." However, Seda testified that Rodriguez' attention was never called to this situation. Leadgirl Lillian Rivera, called as a witness by the Respondent, testified that Rodriguez was supposed to inspect only the grated and pet food and that Virginia Rodriguez was assigned to the scrap and pieces. Rivera claimed to have observed Carmen Rodriguez inspecting the scrap on many occasions both before and after the union election in July. However, as to this testimony I note Rodriguez' uncontradicted claim that she was first assigned to inspection of the grated and pet food on August 4, following the union election on July 31, and that prior to the balloting her job was inspection of the scrap. Rivera claimed that Rodriguez never spoke to the other leadgirls in the plant. However, Rivera also testified that this had been Rodriguez' practice most of the time that she had been in the plant. Despite this lack of communication on Rodri- guez' part "during the most of the time" she had been employed, including a period of 15 months as a leadgirl prior to June 17, there were no complaints in her personnel file about such misconduct prior to her participation in the Union's organizing campaign. The final grounds stated for Rodriguez' discharge was excessive absenteeism. A compilation of the absences in days and total hours of the various leadgirls reveals that Rodriguez was absent on 21 days for a total of 110 hours in 1970.20 Factoring out the days and hours involved in Rodriguez' visit to the Board in September, her absences occured on 18 days for a total of 92-3/4 hours. Other leadgirls had the following attendance records for 1970. Maria Padilla was absent on 13 days for a total of 77-3/4 hours; Lillian Rivera was absent on 9 days for a total of 42 hours; Gloria Ramirez was absent on 9 days for a total of 65 hours; Ines Lebron was away on 7 days for a total of 49 hours; Virginia Rodriguez was absent on 5 days for a total of 27 hours; and Rosaura Martinez was absent on 6 days for a total of 19 hours. Seda and leadgirl Lillian Rivera testified that the absence of a leadgirl affects production because their replacements are not trained for the job and as a result the same quality of work is not performed. However, Rodriguez' personnel file contains a document entitled "Employee's Rating Record" dated May 2, 1967. This document is signed by Emma Padilla's predecessor as forelady. Among the factors upon which an employee is rated is attendance and for this evaluation Rodriguez' did use obscenities in that conversation. 19 I note that in its stated reasons to the Board for Rodriguez' discharge the Company did not refer to her alleged supervisory status 20 The 21 days included September 9, 10, and II when Rodriguez went to the Board, was prevented from working on September 10, and was kept from work for 1 hour and 15 minutes on September 11. Her attendance card shows that for September 9 and 10 her absence was marked as having been with "no notification" and her failure to report on time on September I1 is marked "lateness " In comparing her attendance record with that of the other leadgirls I have deducted the figures for those 3 days. IBEC PACKING CO., INC. 423 attendance was noted as being "below average." Despite this known below average attendance record Rodriguez was subsequently promoted to the position of leadgirl although Respondent submits that attendance of leadgirls is essential because satisfactory replacement cannot be obtained. 5. Conclusions and findings I find that Carmen I. Rodriguez' discharge and the memoranda and warnings placed in her personnel file prior thereto were part and parcel of a campaign directed against this outspoken union adherent and that her discharge violated Section 8(a)(3) and (1) of the Act. Rodriguez had been employed by the Company since 1962, including a period of almost 1-1/2 years as a leadgirl, and from that time until June 17 her record was devoid of any warnings or disciplinary memoranda other than a form notice for low production given to many of the Company's employees. Her employment record discloses that prior to her promotion to the leadgirl position she had a demon- strated attendance problem of which the Company was well aware. On June 17 the first of a series of memoranda complaining of a negative attitude and lack of communica- tion on Rodriguez' part was placed in the file. Yet, her failure to talk to fellow employees was nothing new but, as Lillian Rivera testified, was characteristic of her behavior for as long as she had been a company employee. It is only after her participation in the Union's campaign, her active solicitation for the Union, her distribution of union leaflets at the plant gate, and her being singled out for attention in antiunion handbills distributed in the plant that her longstanding pattern of behavior became a matter requiring a disciplinary warning in the file. Rodriguez' personnel file contains no material of adverse nature entered between June 17 and September 8. Seda testified that he was not aware of any union activity in general or of such activity on Rodriguez' part following the Union's defeat in the July 31 election. However, on September 9 Rodriguez went to the Board's Regional Office to complain about conduct which she considered discrimi- natory in nature, namely her being singled out by being denied the opportunity to wear the same uniform as the other leadgirls. It was following her visit to the Board -that the flurry of memoranda of complaints leading to her discharge on January 7, 1971, make their appearance. Thus, on September 8, 9, and 10 there are three memoranda devoted to the manner in which she requested permission to be absent to visit the Board's office and was thereafter refused the opportunity to work on September 10 because of that visit. Further, it was after her visit to the Board that memorandum was piled on memorandum complaining about her "negative attitude," her "inefficiency," and her general inability to handle the job. Significantly, although Rodriguez was an employee of long standing and had fulfilled the requirements of a leadgirl for a period of almost 1-1/2 years prior to the first adverse comment appearing in her personnel file, these criticisms were never called to her attention, she was not shown any of the memoranda as they were prepared or before they were placed in her file, and the Company made no effort to correct her unsatisfactory behavior, if unsatisfactory it was. Assuming that the memoranda in her file honestly portray Rodriguez' conduct, it seems fair to infer that but for her union activity, which was of a continuing nature as demonstrated by her visit to the Board on September 9, the Company would have made some effort to correct the work attitude and performance of an employee of long standing and demonstrated ability to perform the job to which she was assigned. Accordingly, I shall recommend that Respondent be ordered to reinstate Mrs. Rodriguez to her former position and to make her whole for any loss of earnings resulting from her discharge. C. Diaz' Alleged Threats of Plant Closing As amended at the hearing the complaint alleged that on various dates in July Hiram Diaz told employees that if the Union won the election the plant would be closed. The only witness questioned about the alleged incident was Ilsa Brunet Maletero, who testified that she knew Diaz was in the plant the day before the election but that Diaz did not tell her anything about the Union. In addition to denying that the statements had been made and asserting that if made were protected by the freedom of speech provision of the Act, the Company defended as well on the assertion that Diaz is not a supervisor within the meaning of the Act. Whether Diaz is a supervisor or not and whether such statements are protected by Section 8(c) of the Act or not, the evidence does not support a finding that Diaz made the alleged statements. Accordingly, I shall recommend dismissal of this allegation of the complaint. D. Emma Padilla's Alleged Warnings Concerning Voting As amended at the hearing the complaint alleged that Forelady Emma Padilla, on June 31, the day of the representation election, asked an employee if she was going to vote and then told her that if she voted for Respondent she had nothing to fear. As with the allegation concerning Diaz, the only witness questioned about this election incident was employee Ilsa Brunet Maletero. Brunet testified that on election day an employee who was at Brunet's side told Forelady Padilla that she was nervous, to which Padilla replied there was no reason to be nervous . General Counsel then showed Brunet the affidavit she had given during the investigation of this case in August 1970 . After reading her statement Brunet insisted that the testimony she had given in this proceeding, condensed above, was the truth. Brunet added that Padilla had told the employee involved that she should think it over well. I do not credit Brunet's claim that a Board investigator would include material in her affidavit that she did not pass on to him. However, where a witness has given two conflicting versions of an event, first in her affidavit that the incident did occur and in her sworn testimony in this proceeding denying its occurrence, I do not believe it behooves the trier of the facts to choose between these two conflicting versions given by the same witness in the absence of corroborating evidence. Accordingly, I find the General Counsel has not sustained his burden of establish ing that Padilla threatened an employee as alleged and shall 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend the dismissal of this allegation of the ORDER complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. I shall recommend that the notice to employees attached hereto shall be posted in both English and Spanish. Having found that the Respondent unlawfully discharged Carmen I. Rodriguez, I shall recommend that the Company be ordered to reinstate her to her former position, or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and to make her whole for any loss of pay that she may have suffered as a result of Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 1,38 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices in which the Respondent engaged,21 that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. IBEC Packing Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Confederacion Laborista de Puerto Rico is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in certain described conduct referred to here and above in section III, B, hereof, Respondent has discriminated against Carmen I. Rodriguez in regard to the terms and conditions of her employment in order to discourage activities protected by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. , The Respondent has not engaged in other unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 22 Respondent, IBEC Packing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership and activities in Confeder- ation Laborista de Puerto Rico, by discriminating in regard to the hire and tenure of employment of Respondent's employees in order to discourage membership or activities therein. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Carmen I. Rodriguez immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered as a result of her discharge in the manner set forth in "The Remedy" section hereof. (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (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 amount of backpay due under the terms of this recommended Order. (d) Post in both English and Spanish at its Mayaguez, Puerto Rico, plant copies of the attached notice marked "Appendix." 23 Copies of said notice, on forms provided by the Regional Director for Region 24, after being duly signed by the Respondent's representative, shall be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 24, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.24 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. 21 See N.L.R.B, v. Entwistle Mfg Co, 120 F.2d 532, 536 (C.A 4) 22 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 24 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: IBEC PACKING CO., INC. 425 "Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL also make up all pay Carmen I. Rodriguez lost with 6 percent interest. All of you are free to become or remain or refrain from becoming or remaining, members of Confederacion Laborista de Puerto Rico, or any other labor organization. After a trial at which all sides had the chance to give evidence, it has been, decided that we, IBEC Packing Company, Inc., have violated the National Labor Relations Act, and we have been ordered to post this notice: The National Labor Relations Act gives you, as employees, certain rights, including the right to self- organization; to form, join, or help unions; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT do anything that interfereswith any of your rights listed above. WE WILL NOT fire or take any reprisal action against any of you because you join, support , or engage in organizational activities on behalf of Confederacion Labonsta de Puerto Rico, or any other union. WE WILL offer to reinstate Carmen I. Rodriguez to her job, with full seniority and all other rights and privileges, since the Board found that she was discharged because she supported the organizational campaign of the above-named Union. Dated_;_ By IBEC PACKING COMPANY, INC. (Employer) (Representative) (Title) WE WILL notify;immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the rightrto full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its,provisions may be directed to the Board's Office, Pan Am Building, 7th Floor, P.O. Box UU, 255 Ponce de Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 809-764-2424.