Inter-American Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1965

156 N.L.R.B. 72 (N.L.R.B. 1965)

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inter-American Foods, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 173,
AFL-CIO. Case No. 23-CA-2037. December 16,1965
DECISION AND ORDER
On October 22, 1965, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a. supporting brief and the Respondent filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria]. -
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order
dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Browns-
ville, Texas , on July 6 . and 7, 1965, on the complaint of General Counsel, as
amended, and the answer of Inter-American Foods, Inc., herein referred to as
Respondent .' The issue litigated were whether the Respondent violated Section
8(a)(4), (3 ), and (1 ) and Section 2(6) and ( 7) of the Labor Management Rela-
tions Act , 1947 , as amended , 61 Stat. 136 , herein called the Act. The parties
waived oral argument and briefs filed by the General Counsel and Respondent
have been carefully considered . During the hearing I reserved rulings ' on several
motions. These motions are disposed of in accordance with the findings and con-
clusions herein set forth.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation , having its principal place of business and
plant in Brownsville , Texas, where it is engaged in the processing of shrimp and
other food products . During the 11 months preceding the issuance of the com-
1 A charge was filed on April 29, and an amended charge was filed on May 5, 1965.
A complaint was issued on June 3, 1965, and amended during the hearing.
156 NLRB No. 28.
INTER-AMERICAN FOODS, INC. 73
plaint,2 a representative period , Respondent manufactured , sold, and shipped from
its Brownsville plant food products valued in excess of $50,000 to points outside
the State of Texas. The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within the meaning of Section
2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butchers Workmen of North America, Local
Union No. 173, AFL-CIO, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings , as amended , and litigated at the
hearing are whether the Respondent : ( a) was discriminatorily motivated in failure
to rehire Rebeca Govea 3 and Mickey Baker on or about April 5, 1965, and there-
after, in violation of the provisions of Section 8(a)(3) and (1) of the Act; or (b)
failed and refused to rehire the named employees because they filed charges or
gave testimony under the Act in violation of Section 8(a)(4) and (1) of the Act.
Respondent generally denied the commission of any unfair labor practices.
Background and Sequence of Events
Except -as noted , there is no dispute as to the sequence of events herein set
forth.
Respondent was incorporated in April 1964 , and began production operations
on July 1, 1964. The premises where Respondent carries on its activities had been
previously occupied by Brownsville Shrimp Exchange, Trade Winds Company, and
Booth Fisheries, the first named company being the immediate predecessor.4
Brownsville Shrimp Exchange had closed down on an unspecified date in 1962,
reopened about October 1963 and operated until February 1964, with a complement
of 18 or 20 employees in the latter period, after which they discontinued. operations.°
It is undisputed that Manager-Comptroller Walsh and Ramon Saldivar 6 are super-
visors within the meaning of Section 2(11) of the Act.7
On June 30, 1964, Saldivar hired Rebeca O. Govea, and she reported for work
commencing July 1, 1964, being initially assigned to the area where the breading
of the shrimp was performed. A week later she was assigned to the packing depart-
ment. After 3 weeks she was assigned as a peeler, remaining in that category until
her termination on September 4, 1964. Mickey Baker was similarly hired by Salidvar,
commenced work on July 1, 1964, and initially she worked as an inspector in the
breading department, then was transferred to peeling about 3 weeks prior to her
termination on September 4, 1964 . Govea and Baker are the alleged discriminatees
herein.
It is undisputed that Respondent . actually commenced operations on July 1, 1964;
the complaint issued on June 3, 1965.
8 The complaint was amended at the hearing to correctly reflect the spelling of the
last name.
"Plant Superintendent Saldivar asserted he worked for the Brownsville Shrimp Ex-
change from 1952 until 1955, then for Trade Winds until 1957. When Trade Winds
moved out In 1957, Brownsville Shrimp Exchange took over again.
51 have taken official notice of Case No. 23-CA-1874 In which Trial Examiner Whit-
temore made certain findings on March 25, 1965. Respondent did not appeal , the Board
adopted the findings and conclusions of the Trial Examiner on August 4, 1965, and Re-
spondent complied with the Recommended Order. The Board found, therein, that Manuel
Sanchez, Jr., was president of a corporation which owned the plant, Inferentially,
Brownsville Shrimp Exchange , and Sanchez remained at the plant "off and on" until
October 1, 1964, providing "advice" to Inter-American 's management . This was the
credited testimony of General Manager Henry Willson Walsh in the earlier case.
6 Undoubtedly the same individual identified as Plant Superintendent Saldivar In the
earlier case.
7I find It unnecessary to resolve the allegation of the amendment that Antonia Guevara
was a supervisor in August and early September 1964. General Counsel , contends she
was a supervisor , while Respondent contends that she was a "lead girl " or "pusher."
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Govea related that about a week after she began working for Respondent, she and
Baker obtained union authorization cards from Franklin Garcia. Govea and Baker
talked to employees and obtained signatures on some cards.8
About July 14, Respondent held a meeting of the production employees which was
addressed by Sanchez, in the presence of Plant Superintendent Saldivar. A second
such meeting was held a month later. The Board has found that this conduct of the
Respondent, through Sanchez, constituted a violation of the provisions of Section
8(a)(2) and (1) of theAct9
In August 1964, Respondent purchased and installed seven Pronto machines.
Saldivar credibly related that these machines partially peel and devein shrimp for
breading purposes. Employees, classified as peelers, now do the finish work of
peeling and inspect the shrimp. As a result, according to Saldivar, four, five, or six
employees, including Govea and Baker, were selected by him for discharge on
September 4, 196410
In January 19,55, Respondent installed 10 Johnson shrimp trimming machines.
Saldivar explained that a crew of 90 employees were required to handpeel 10,000
pounds of shrimp in an 8-hour shift, while with the 10 machines 35 employees were
required to peel 10,000 pounds. Saldivar asserted that while they had done some
handpeeling since January 1965, there had not been very much, and when necessary
they used the packers to do this work.
On February 17, 1965, Govea appeared and testified in the prior case. Walsh
appears to have been the only member of Respondent's hierarchy present at the.
hearing. It is undisputed that while Baker was present in the courtroom, among the
spectators, she was not called as a witness and was not identified as a potential
witness.
The Events of April 5, 1965
The only undisputed facets of the events of April 5 are that Govea applied to
Saldivar for employment, and subsequently she and Baker. talked to Walsh, with
Saldivar present.
Saldivar credibly related that hiring of production workers is done only by him
or Walsh.1' Walsh asserted Saldivar hires all production employees. Saldivar
related that about 7:15 a.m. on April 5, 1965, Govea walked into his office, alone,
and inquired as to whether he was hiring any people. He respondent that he had
been hiring some. She then inquired if he was going to hire anyone that day and
he responded that he was not hiring anyone that day. She then asked when he
would be hiring, and he responded that he did not know, that he would have to talk
to Walsh. Govea then inquired if she could see Walsh, and inquired as to what
time he would be in. Saldivar responded that she could see Walsh and that he would
be in between 8:30 and 9 o'clock. I credit Saldivar, and particularly his assertion
that no one else was present during this conversation.
Govea asserted that she went to Respondent's plant with Jose Ramirez Valdez
and Jose Velasquez. It is undisputed that neither Valdez nor Velasquez had ever
worked for Respondent. Govea's alleged reason for going to the plant was that a
coworker friend had advised her that Respondent was hiring employees. Govea
asserted that she entered the front door of Saldivar's office while Valdez and Velas-
quez entered through a side door, that they listened while she talked to Saldivar, that
they spoke to Saldivar about employment after her conversation with Saldivar, but
she did not hear what was said between them and Saldivar. Govea asserted that
Saldivar advised her that he was hiring "and I will hire, but I will not hire you."
8 Govea asserted she obtained 14 or 15 cards. Baker asserted that she obtained 12 or
15 cards within a period of 2 weeks. It is undisputed that there were over 125 produc-
tion employees.
9 Case No. 23-CA-1874.
10 The charge in Case No. 23-CA-1874, alleging conduct violative of Section 8(a) (2)
of the Act, was filed on August 12, 1964. An amended charge, filed September 14, 1964,
alleged that the discharges of Govea, Baker, and Jovita Gonzales were violative of Sec-
tion 8(a) (3) and (4) of the Act. The complaint, issued on October 22, 1964 was confined
to the allegations relating to the Section 8(a)(2) violations . The Regional Director dis-
missed the Section 8 ( a) (3) and ( 4) allegations , and his ruling was sustained on appeal.
Saldivar credibly asserted the discharge of Govea and Baker was due to unsatisfactory
work habits.
u Saldivar 's assertion that Respondent obtains needed employees from the Texas Em-
ployment Commission, and applicants at the plant , some of the latter being recommended
by other employees, is credited.
INTER-AMERICAN FOODS, INC. 75
Govea asserted that she then told Saldivar that he had previously advised her that
she was not fired, but merely suspended, and Saldivar advised her that she would
have to talk to Walsh personally.
Valdez, who sought to corroborate the testimony of Govea as to the statements
of Saldivar, asserted that during this conversation "I was standing right beside Mickey
when the conversation with Mr. Saldivar." The only Mickey identified in the record
is Baker, and it is patent that Baker was not present during Govea's interview with
Saldivar. Valdez acknowledged he was not present during the subsequent conversa-
tion with Walsh when Baker was present.12 Velasquez similarly sought to corroborate
the testimony of Govea that Saldivar stated, "Yes, I am hiring, but I can't hire you."
On the basis of demeanor, the conflicts in the testimony of General Counsel's wit-
nesses, exhibiting, as a minimum, poor memory, the fact that there is no evidence
that anyone was hired on April 5, I credit Saldivar's version of his conversation
with Govea.
Govea, Valdez, and Velasquez then left the plant to pick up Mickey Baker. It
appears that the first three speak only Spanish and Baker was sought in order to
have an English-speaking person present during the interview with Walsh. It is
undisputed that while Valdez and Velasquez returned to the plant with Govea and
Baker, they remained in the car and were not present during the subsequent interview
Govea and Baker had with Walsh.
Plant Manager Walsh related that the first time he had seen Govea was when she
testified on February 17.13 He did not recall ever seeing Mickey Baker prior to
April 5.
Walsh acknowledged that he was advised that Govea and Baker were seeking
employment as peelers . Walsh described Saldivar as the one who did the hiring
of the plant and processing personnel. Walsh called Saldivar to his office and, in
the presence of Govea and Baker, inquired if Saldivar was in need of additional help.
Saldivar responded that he was not. Walsh then advised Govea and Baker that they
should leave their names and addresses and that Respondent would contact them if
it was in need of their services. Walsh asserted that Respondent did not thereafter
hire anyone for "handpeeling." He asserted that "he understood" Saldivar later
contacted the Texas Employment Commission for personnel experienced in the oper-
ation of Johnson machines. The record establishes that the request for personnel
occurred in June.14
Saldivar corroborated Walsh. He asserted that he was called to the office and
saw Govea and Baker. Walsh first inquired if Saldivar knew these individuals, and
Saldivar responded in the affirmative. Walsh inquired as to whether Saldivar needed
any employees that day and Saldivar responded in the negative. Walsh then advised
Govea and Baker that he was sorry he could not hire them. Saldivar's denial that
he had hired any employees on April 5 is substantiated by the record.'5
Govea asserted that when she and Baker returned to the plant premises they
encountered Walsh as the latter was getting out of his car. Govea asserted that
Baker identified herself, then Govea identified herself. Govea then related that
when she mentioned her name Walsh responded, "Oh, yes I saw you in court."
Walsh invited them into the reception area, called Saldivar, and, according to Govea,
"they spoke privately for a long time." Govea asserted that Walsh then invited them
into his office and inquired as to what they wanted and was advised that they wanted
work. Govea asserted that Baker advised Walsh, "We know you are hiring people
and that is why we have come out here." Govea asserted that Walsh then asked if
they had worked there previously, if they had sought work elsewhere, and if they
had not found employment. Govea acknowledged Walsh then inquired as to
whether Saldivar was hiring anyone and was advised in the negative. Govea asserted
that Baker then asked if they should return the following day, the following week, or
the following month. Walsh responded that they had their addresses and if Respond-
ent needed them that they would be called. Govea then asserted that six new people
were hired on April 5.
"Another conflict appears in the assertion of Valdez that Govea picked up Velasquez
in Govea's car at Velasquez' home by arrangement the prior day. Velasquez, to the con-
trary, asserted that he drove his car to Govea's home, then accompanied Govea in her
car to the plant.
33 This assertion was corroborated by Govea , who asserted she first encountered Walsh
on April 5 , although she saw him , in court, on February 17.
14 However , Saldivar made no reference to the operation of Johnson machines in his
description of the qualifications he assertedly gave at the time of this request.
w Saldivar acknowledged hiring an employee named Fidela Garza , who was experienced
on a Johnson machine, on Friday, April 2. Garza reported for work on Monday, April 5.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Govea, who testified herein through an interpreter, asserted that she had Baker
accompany her to Respondent's plant in order for Baker to ack as an interpreter
during this conversation. It is patent that Respondent did not hire six people on
April 5.16
Baker's version was that they encountered Walsh in the parking area, and after
each had identified herself by name, Walsh stated, "Oh, I know you both. You were
at the courthouse." Walsh then had them wait in an outer office while he called
Saldivar and conferred with him for about 15 minutes. Walsh then inquired if they
were looking for a job and she responded in the affirmative. Walsh then asked if
they had worked for the Respondent previously and she responded that she had
worked there "from 8 to 10 years." Walsh then asked Saldivar if he needed two
more women and Saldivar responded "Not right then." Walsh advised that he could
do nothing because Saldivar did the hiring and said he did not need anyone right
then. It was at this time that Walsh advised that he had their addresses and tele-
phone numbers and would get in touch with them if he needed them. To the extent
the testimony of Govea and Baker is at variance with that of Walsh and Saldivar, I
credit the latter two.17
Other Events
General Counsel sought to establish, as background, an event assertedly constitut-
ing interrogation of Govea and Baker by Antonia Guevara. Govea's testimony was
that during working hours Guevara came over and stood between Baker and Govea
and asserted, "Girls, I want to ask a question. I want to ask you and I want you to
tell me which is the good Union, the one inside or the one outside? I want to know
because if the inside union wins or the outside union wins, I want to be in it."
Govea asserted that Baker responded, "Why do you ask us. Why don't you ask your
husband. He is a member of the Union and he could tell you." Baker's version
was that on September 2, as they were returning from lunch, Guevara approached
Govea and Baker and stated she wanted to talk to them. She then asked them if
they could tell her how she could join the Union on the outside, that she wanted to
join the Union on the outside because she was afraid she might lose her job if she
joined the Union on the inside. Baker asserted that it was Govea who advised
Guevara that if she wanted some information to ask her husband because he was
in the Union. Baker asserted that she told Guevara that if she was interested in the
Union on the outside to go to the meetings.
I find it unnecessary to resolve the conflict in the testimony of Baker and Govea.
Guevara did not appear as a witness. I likewise find it unnecessary to resolve the
question of whether Guevara was in fact a supervisor. The Board has previously
16 The record establishes the hiring of nine packers thereafter ; four on April 8, two on
April 12, and three on April 15. There is no evidence of the hiring of any peelers until
June 1965, after the hiring of Garza.
17 In arriving at this finding, I have considered the demeanor of the witnesses, and
numerous conflicts in the record, including the following. Initially Govea asserted that
she worked for Brownsville Shrimp Exchange for 8 years . Saldivar denied knowledge
of Govea working for him at any time prior to July 1, 1964, acknowledging that many
hundreds of girls had worked for him and he could not identify all of them . On rebuttal
Govea revised the period of time she worked for Brownsville Shrimp Exchange to 3 or 4
months, and she was uncertain whether it was in 1962 , or prior to 1959, when she started
working at a company identified as Pan-Am. Govea asserted she had a number of con-
versations with Saldivar during this prior period of employment.
Govea had written in ink, on her hand, the dates of July 1 (the date she started to
work), July 14 (the date Sanchez addressed the employees), July 15 (when she held a
meeting with other employees in her automobile), and August 26 (when the union cards
disappeared from the glove compartment of her automobile ). Upon being questioned as
to the reason for the notations , Govea's unconvincing explanation , was "I was just
doodling with my fountain pen and I just did this unconsciously."
Govea was evasive when questioned as to whether or. not she was involved in an unfair
labor practice charge brought by the Union against United Foods, relative to the layoff
of Govea and others at United Foods on an unspecified date in 1964. Thereafter it was
stipulated that the Rebeca 0. Govea listed in the settlement agreement, in Case No. 23-
CA-1853, signed by United Foods, Inc., on January 22, 1965, by the Union on January 26,
1965, and approved by the Regional Director for Region 23 on January 27, 1965 , was the
same individual as the Rebeca 0. Govea in this case . Govea's later explanation was that
she denied being the individual involved "because I understood that I had attended a
hearing just like this one, and I did not attend a hearing like this one."
INTER-AMERICAN FOODS, INC. 77
found union animus in the conduct of Respondent in the prior case . This event
predated the Section 10(b) period . Why this event , if it occurred , was not set forth
in the prior case is unexplained.
Contentions of General Counsel
General Counsel asserts, in his brief , the unexplained disappearance of union cards
from Govea's car , on August 26, 1964 , the interrogation by Guevara on September 2,
1964, and the layoff of September 4, 1964 , are the basis for the drawing of an infer-
ence that the employees were "terminated for union activities ." General Counsel,
in so contending , makes no effort to explain the dismissal of the Section 8(a) (3) and
(4) allegations of the amended charge by the Regional Director on October 27, 1964,
and the sustaining of the Regional Director 's ruling on February 5 , 1965, by General
Counsel in the preceding case. I find no merit in this contention.
General Counsel contends that on September 4, 1964, Govea and Baker were not
discharged , but were laid off. Next, General Counsel contends that as laid-off
employees they were entitled to recall . I find no merit in either of these assertions
which are next considered.
It is undisputed that all of the employees who were released on September 4, 1964,
were given a notice, together with their paycheck . Since this notice was in the
Spanish language, the interpreter provided , by agreement of the parties , the official
interpretation of the contents as follows:
"Sentimos mucho despedirla" means "you are fired ." "Debido al escaso de
trabajo nos forsamos hacer repaje de empleados " means "due to scarcity of
work, we are forced to cut down on our employees ." "Quizas en el futuro Ie
volveremos a llamar" means "maybe in the future we might call you."
Thereafter the translator asserted the Spanish word "terminarse " is a more precise
word meaning terminate employment . He then asserted that the word "despedirla"
had three meanings ( 1) "allow you to leave"; ( 2) "you are fired"; and (3) "you
may leave." He then asserted it is not an exact word which means "you are fired"
or "you are laid off."
Govea related that after receipt of the notice she spoke to Saldivar and asked him,
"Why am I being fired ?" Govea asserted that Saldivar responded , "You are not
fired, you are suspended . As soon as there is work we will call you." Govea asserted
that she then went to Sanchez ' office, did not find him there, but talked to his secre-
tary. I do not credit this recitation of Govea. I would appear improbable, if as
Govea asserted , Saldivar assured her that she was not being fired, but only suspended,
that she would have sought to see Sanchez.18 Baker asserted that on September 4,
1964, when she received the notice she went to Sanchez' office , found that he was
not there , and was , advised by his secretary that "we were not fired that we were laid
off, that as soon as they had work they would call us back." 19
Saldivar, by way of explanation of his determination to discharge Govea and Baker,
related that Baker had worked for him for approximately 4 years at Brownsville
Shrimp Exchange . During that period she had been given a temporary layoff of 2
or 3 days, with a warning, for chewing gum, throwing shrimp at other employees, and
playing. Later Saldivar discharged her. In spite of this background he rehired
Baker, when he was hiring employees for Respondent , because he knew she was
experienced . Saldivar credibly related that on June 30, 1964, he advised Baker that
he would hire her "if you promise me not to be playing like you used to before."
I credit Saldivar's assertion that the employees who were released on September 4,
1964, were discharged , as distinguished from being laid off.
The only inference this record permits is that Respondent had no recall procedure.
When new employees were needed , as I have found supra, they were hired at the
gate, some as the result of a reference to the plant by the Texas Employment
Commission.20
18 Another illustration of the inaccuracy of the testimony of Govea is her assertion that
she was advised , prior to her trip to the plant on April 5, by Paola Salinas, another em-
ployee, that the Respondent was going to hire 30 ladies for a night shift, and that a
night shift was hired and put to work 2 weeks after her April 5 visit . The record estab-
lishes that the night shift was hired and placed into operation in June 1965.
19 There is no evidence that Respondent followed a practice of recall of laid-off em-
ployees. Saldivar 's assertion , "we never call ( recall) anybody," stands undisputed, and
is credited.
20 Similarly I credit Saldivar ' s assertion that when anyone called him on the telephone
relative to possible employment he advised them to come to the plant.
78 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
The basic question to be resolved thus is whether there is sufficient evidence to
establish that the Respondent's failure to hire Govea and Baker, when it did hire
other employees, on and after April 8, 1965, as distinguished from April 5, when
no hiring was done, was discriminatorily motivated.
The record fails to establish the existence of any procedure or practice by the
Respondent of recalling former employees.21 Respondent's practice, to the con-
trary, was to hire those who applied at the gate, including those advised to make
such application by other employees, or by requesting the Texas Employment Com-
mission to send applicants to the plant for an interview. I find Govea and Baker
were aware of this practice.
The single question then is whether Walsh's assurance, on April 5, 1965, that if
Baker and Govea would leave their addresses they would be recalled "when needed,"
and the failure of Respondent thereafter to vary its normal hiring procedure, of hiring
at the gate, constitutes sufficient evidence to support a finding of discriminatory
motive. Saldivar credibly related his reason for not calling Govea, and inferentially
Baker, when he hired others on April 8, as "we never call anybody." 22
In June, Respondent requested the Texas Employment Commission to refer a sub-
stantial number of applicants for interview, for the hiring of a night shift. While
both Govea and Baker asserted they were registered with that commission, neither
was referred. This failure is obviously not chargeable to Respondent.
In the Bryan case 23 the Supreme Court held that where occurrences within the 6
months' limitations period in and of themselves may constitute as a substantive matter
unfair labor practices-earlier events may be utilized to shed light on the true char-
acter of matters occurring within the limitations period; and for that purpose Section
10(b) ordinarily does not bar such evidentiary use of anterior events.
Respondent's union animus is established by the speeches of Sanchez in July and
August 1964 which the Board found to be violative of Section 8(a)(2) and (1) of
the Act. There are anterior events. However, these events may be utilized only to
shed light on the true character of matters occurring within the limitations period.24
Respondent, to avoid a finding of discrimination, is not required to vary its normal
hiring procedures, or to give preference to those if knew to be union advocates.25
Court and Board decisions are uniform in holding that union activity does not,
per se, entitle an employee to preferential treatment.
It thus appears, and I find, that the most that can be said, upon consideration of
the record as a whole, is that it raises a suspicion of Respondent's motive, in advising
Govea and Baker they would be called when needed, at the time Govea and Baker
applied for reemployment on April 5, 1965. In the Exeter case 26 the Board held,
as it has in numerous cases, that while there are suspicious circumstances [attending
the failure to rehire] we do not find that a preponderance of the evidence establishes
a discriminatory motivation therefor. In these circumstances, since the burden of
proof was upon the General Counsel, I believe he has not met his burden of proving
by a preponderance of the evidence that Govea and Baker were discriminated against
because of their union activity.27 I find accordingly.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
21 Cf. Southern Electronics Company, Inc., 134 NLRB 80.
22This case is factually distinguishable from Paramount Cap Manufacturing Company,
119 NLRB 785, and similar cases.
23 Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et at.
(Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411, 416, 417.
24 However , it is noted that Sanchez left Respondent in October 1964. Respondent did
not appeal from the findings of the Trial Examiner, and complied with the Recommended
Order, in the preceding case. This is the sole instance of violation reflected in this
record.
25 While I have found that there was no knowledge, chargeable to Respondent, that
Baker was present and available to testify, in the prior hearing, on February 17, 1965,
I find this fact of no consequence. The Act refers, In the alternative, to either filing
charges or giving testimony and It is undisputed that charges had previously been filed,
by way of amendment in the prior case, on behalf of both former employees.
26 Exeter Coal Company, 154 NLRB 1678.
N Elsa Canning Company , 154 NLRB 1696.
MT. PLEASANT PUBLIC UTILITIES 79
2. Amalgamated Meat Cutters and Butcher Workmen of North America, Local
Union No. 173, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has not engaged in conduct constituting unfair labor practices
affecting commerce within the meaning of Section 8(a) (4), (3), or (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, I recommend
that the complaint be dismissed in its entirety.
Mt. Pleasant Public Utilities and Local Union 735, International
Brotherhood of Electrical Workers, AFL-CIO. Case No. AO-
91. December 16, 1965
ORDER DISMISSING PETITION FOR
ADVISORY OPINION
On November 12, 1965, Mt. Pleasant Public Utilities, herein called
the Employer, filed a petition pursuant to Sections 102.98 and 102.99
of the National Labor Relations Board Rules and Regulations, Series
8, as amended, requesting an Advisory Opinion with respect to the
jurisdictional issue arising in the proceeding filed by the Employer
in the Twentieth District Court of Iowa, Henry County, Iowa, against
Local Union 735, International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Union, and against an official of the
Union. The Union had previously filed a petition in Case No. 18-RC-
6604, seeking certification by the Board as the exclusive bargaining
agent of certain employees of the Employer.' As a result, the
Employer, claiming to be a political subdivision exempt under the
National Labor Relations Act, instituted the aforesaid State court pro-
ceeding to enjoin the Union until the State court had determined the
rights and duties of the parties under Iowa law insofar as they pertain
to the Employer's duty to bargain with the Union. No response, as
provided by the Board's Rules, has been filed by the Union.
The Board has duly considered the allegations of the petition. The
Board's Advisory Opinion proceedings "are designed primarily to
determine questions of jurisdiction by application of the Board's dis-
cretionary standards to the `commerce' operations of an employer." 2
The issue presented herein by the Employer -relates to whether it is an
"employer" within the meaning of the Act. As this issue does not
concern questions of the applicability of the Board's discretionary com-
' We have been administratively advised that the Regional Director for Region 18 has
approved the Union's request for permission to withdraw the petition in Case No.
18-RC-6604.
2 Upper Lakes Shipping, Ltd., 138 NLRB 221.
156 NLRB No. 15.