Ramona's Mexican Food Products, Inc.

RAMONA'S MEXICAN FOOD PRODUCTS, INC. Ramona's Mexican Food Products, Inc. and Delfino Fidel Rios. Case 31-CA-4576 May 9, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 16, 1974, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in answer to Respondent's exceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Ramona's Mexican Food Products, Inc., Gardena, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This mat- ter was heard at Los Angeles, California, on October 15, 1974. The complaint, issued September 10-and based upon a charge filed July 17, 1974, by Delfino Fidel Rios, an in- dividual, alleges that Respondent, Ramona's Mexican Food Products, Inc., has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT' I JURISDICTIONAL FINDINGS Ramona's Mexican Food Products, Inc., is a California corporation which maintains its principal office and facility at Gardena, California, where it is engaged in the preparation and sale of food products to restaurants, catering services, 867 and stores . Respondent annually enjoys a gross volume of sales of approximately $6 million and purchases goods valued in excess of $50,000 from distributors located within the State of California, who in turn purchase and receive said goods directly from points outside that State . I find that the opera- tions of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Produce, Refrigerated and Processed Foods and Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction, The Issue Respondent is covered by a contract with the Union run- ning from September 27, 1972, through April 30, 1975. This contract recognizes the Union as bargaining representative for all production and maintenance employees, divers, driv- er-salemen and deli workers at Respondent's place of busi- ness, excluding "all other salesmen" and the other customary exclusions. It also provides that a new employee is on a probationary basis for 30 days and" is subject to a union security clause on the 31st day of such employment. Rios was hired on May 29, 1973, and discharged on or about June 25, 1974. According to the General Counsel, he was discharged because of his union activities and Respond- ent, in turn, contends that Rios was a supervisory employee not normally protected under the Act and, further, that he engaged in misconduct which warranted his discharge, viz, "for abusing company time and the company vehicle and company gas for personal reasons," as testified by Carlos Torres, executive vice president of the Company which is owned by his parents. It is undisputed that Torres and Henry Chavez, truck- driver supervisor, are supervisors within the meaning of the Act. As will appear, Respondent admits that Rios was a salesman who in emergencies performed as a driver of one of the 14 delivery trucks operated by Respondent, but urges that he was being groomed to replace one, Sam Magana, the sales manager for Respondent who had left after 21 years of em- ployment. The General Counsel does not dispute the supervi- sory status of Magana, but does contend that Rios had not yet achieved this stature; as will appear, I. agree with this contention. B. Sequence of Events Engaged in the production and nonretail sales of Mexican foods, Respondent has approximately 300 employees with 14 trucks to deliver its products; Henry Chavez is in direct supervision of the drivers. Rios was hired on May 29, 1973, as a salesman by Carlos Tones, then president, but now executive vice president; Rios had no prior sales experience. In this capacity, he was to solicit new accounts and endeavor to reopen former accounts which had taken their business 217 NLRB No. 153 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elsewhere. He was assigned, to a company van and sold from price lists provided him by Respondent. As Torres testified, Rios had no authority to change prices or grant discounts. All of his sales, according to Rios, were subject to a clearance of credit of customers. As part of his training, he accompanied the drivers on their routes so as to acquaint himself with the areas served. He had no responsibil- ity to ascertain that the drivers were doing their jobs correctly and did not so function. According to Torres, he wished Rios to spend 2 to 3 weeks on each of the 14 routes and envisaged that this training would take about 1 year. In addition to his sales duties, Rios substituted for drivers who were ill or on vacation. Rios, an intelligent and articulate witness, testified, and I so find, that this relief driving took up approximately 70 percent of his time. Indeed, not long after his hire he spent approximately 3 months on route 3 due to the absence of that driver. When so engaged in relief driv- ing, he did not perform any sales duties. Torres admitted that he kept no record as to the amount of time Rios devoted to driving, although he opined that the 70 percent- figure was high. Rios testified that when Torres hired him, Tones stated that Rios "had no business with the Union" because he "was not that type of employee." Tones in essence agreed, testify- ing that he told Rios that he need not worry about the Union and that he had no "business" with it because "he was a company man." Some 4 to 6 weeks prior to his discharge, Rios claimed that he should be compensated for damage to his personal cloth- ing while at work. He and Tones disagreed as to the amount of reimbursement and Rios filed a charge with the California State Labor Commission. Tones responded in writing thereto on June 14. About 2 weeks before his discharge, Rios happened to see the contract with the Umon and concluded that he was enti- tled to a higher rate of pay than the $4.37 per hour he was receiving.' As a result he visited the Union to inquire why Respondent never notified the Union of his hire, allegedly as a sales-driver, and further to join the Union for "protection." He testified that this had nothing to do with wages. Minutes after he left the Umon hall, Business Agent Bob Currier telephoned Torres, according to the latter, and inquired as to the status of Rios. Torres responded that he was a company salesman and therefore not to be included within the bargain- ing unit. Later that day, Torres summoned Rios to his office, asked why he had visited the Union rather than contacting Tones. Indeed, as Torres admitted, he reminded him that he was a company man who was to have nothing to do with the Union. Torres admitted that he decided to discharge Rios after his talk with him, notified the office to prepare his check and instructed Chavez to give him his check; this was done on the same day.' C. Alleged Supervisory Status Initially, it is of no import whether Rios was properly within the recognized bargaining unit or excluded therefrom. The only criterion is whether or not he was a rank-and-file employee and, if he was, did Respondent discharge him for valid cause or because he contacted the Union. Stated other- wise, within the unit or not, and if a nonsupervisor, he is subject to the protection of Section 7 of the Act. According to Rios, Tones hired him as a sales representa- tive, telling him that he was to open new accounts and per- form emergency relief driving; there were no other salesmen employed at that time and his employee contacts were only with the truckdrivers and with Henry Chavez.' Torres agreed with Rios that, in accompanying the drivers, his only function was to observe the routes, learnthem, and that he had no responsibility to see that the drivers were performing their jobs correctly. He did not hire or fire, recommend same or responsibly direct any employees. Tones admitted that he envisaged that it would take Rios at least a year to learn the job and ultimately be in charge of four salesmen, to be hired, as well as the drivers, and that his title then would be sales manager. Rios uncontrovertedly testified, and I find, that Tones told him that it would take from 1 to 4 years for him to reach the salary of Magana which had been $1,000 a month. Tones variously testified as to the title of Rios being com- pany salesman and, on the other hand, sales manager. What I deem more probative is the fact that Respondent provided him with company business cards bearing the title of "sales representative." Totally aside from the fact that Rios denied ever being told that he was being groomed to become sales manager, in the posture most favorable to Respondent, the testimony of Tones in several places makes it clear that Rios was being trained, that it would take time, and that ultimately he would "work up to take the place of Sam Magana," the departed sales manager. In sum, employees being groomed for supervisory posts are not supervisors since future assign- ments are at best speculative. Reliance Insurance Company and Planet Insurance Company d/b/a Reliance Insurance Companies, 173 NLRB 985 (1968); Hilton-Burns Hotel Co., Inc., Hilton Hotel Corporation Hale Kaanapoli Hotels Associ- ates, A limited partnership, 167 NLRB 221 (1967); and American Cable Systems, Inc., 161 NLRB 332, 338 (1966). I find, on a preponderance of the evidence, that Rios was not a supervisor within the meaning of Section 2(11) and that he was rather an employee within the meaning of Section 2(3) of the Act. See Crest Chemical Company, 213 NLRB No. 118 (1974). D. The Work Record of Rios Tones conceded that Rios "was always doing a good job." This is consistent with the testimony of Rios, who well with- stood a rigorous cross-examination, that Torres compli- mented him on his progress and work some days before his He received $175 a week which divides into this figure. 2 The testimony of both Rios and Torres varies as to the timing, placing the call from Currier, who did not testify, that day or several days before. ' Another salesman was hired late during the employment of Rios, but left shortly thereafter. RAMONA'S MEXICAN FOOD PRODUCTS, INC. 869 discharge and that he received several raises in pay; the latter was conceded. As for the trigger incident;- Torres claimed that he dis- charged Rios the very same day that he learned that Rios had visited the Union that morning.4 He allegedly did so be- cause Rios used the Company truck, gas and time for a visit which took several hours. However, Torres admitted that he did not so tell Rios in their final conversation. Significantly, Torres admitted questioning Rios as to why he was a "com- pany man" who was to have "nothing to do with the Union." To sum up, Respondent discharged an admittedly most competent employee who had been granted a number of in- creases in pay after 13 months of employment. Torres admit- ted that by doing so he had sacrificed all his training time and much money and was still seeking to replace him. The record discloses that Rios frequently worked overtime and on Satur- days without extra compensation. The inference is well war- ranted that had Rios' personal errand been unrelated to the Union, no discipline would have been imposed.' I find, on a strong preponderance of the evidence, that by discharging Rios, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Ramona's Mexican Food Products, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Produce, Refrigerated and Processed Foods and Indus- trial Workers Local 630, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Delfino Fidel Rios on June 25, 1974, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist there- from and take certain affirmative action designed to effectu- ate the policies of the Act. I have found that Respondent has violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging Delfino Fidel Rios on June 25, 1974. I shall, therefore, recommend that Respondent offer him immediate and full reinstatement to his former job, or, if this job no longer exists, to a substan- tially equivalent position, without prejudice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827 (1946). 4 As noted, the record in places indicates that the visit may have been several days before, but nevertheless was immediately followed by a tele- phone call to Torres from Currier. 5 There is evidence that Tones forbade Rios to assist drivers in loading their trucks or to fraternize with them. It is clear that these incidents mani- festly had nothing to do with the decision to discharge him I shall further recommend that Respondent make him whole for any loss of pay he may have suffered as the result of his discharge by payment of a sum of money equal to that he normally would have earned from said date to the date of Respondent's offer of reinstatement, less net earnings, with backpay and interest thereon to be computed in the manner prescribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 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: ORDER6 Respondent, Ramona's Mexican Food Products, Inc., Gardena, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in or activity in behalf of Produce, Refrigerated and Processed Foods and Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition thereof. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed under Section 7 of the National Labor Relations Act, except to the extent a union security clause is permitted under Section 8(a)(3) thereof. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Delfino Fidel Rios immediate and full reinstate- ment to his former job, or if said job no longer exists, to a substantially equivalent position, without prejudice to seni- ority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him in the manner provided above in the section entitled "The Remedy." (b) 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 ana- lyze the amount of backpay due under the terms of this Order. (c) Post at its plant at Gardena, California, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 6 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herem shall, as provided in Sec 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. I 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." 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps it 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 NOT discourage membership in or activity in behalf of Produce, Refrigerated and Processed Foods and Industrial Workers Local 630, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, by discriminating in regard to hire or tenure of employment, or any term,or condition thereof. WE WILL offer Delfino Fidel Rios immediate and full reinstatement to his former job, or if said job no longer exists, to a substantially equivalent position without prejudice to seniority or other rights and privileges and -make him whole for any loss of pay suffered by reason of the discrimination against him, in the manner pro- vided in the section of this Decision entitled "The Remedy." WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent a union security clause is permitted under Section 8(a)(3) of the Act. RAMONA'S MEXICAN FOOD PRODUCTS, INC.