Point St. George Fisheries, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 54 (N.L.R.B. 1969)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Point St. George Fisheries , Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America , Local 364, AFL-CIO. Case 20-CA-4481
June 26, 1969
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 4, 1968, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party
and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
The Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. 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.'
We cannot agree with our dissenting colleague
that the General Counsel has established, by a
preponderance of the evidence on the basis of the
record as a whole, the violations alleged in the
complaint. While it is clear that Plant Manager
Davi had general knowledge of the union
organizational activities taking place and was
opposed to them, the record also shows that before
the employees Davi was generally equivocal, making
remarks to the effect that the employees could join
or not join the Union, it did not matter to him.
Further, although there is some evidence from which
to infer that Davi had suspicions that employees
Robinett and Gerald Wallis were union advocates, it
is quite clear he had no actual knowledge of the fact
until after he had made his decision to discharge
them.' The nub of the case, then, lies in the events
that transpired on the parking lot on April 4, for it
was those events that precipitated Davi's decision to
terminate the alleged discriminatees.
'Although we accept the credibility findings of the Trial Examiner, we
do not adopt his characterization of the testimony of one witness as
"fabrication" and of another as "an outright lie."
'The implication of the dissent that on April 3 Robinett and Wallis were
interrogated specifically as to whether they had signed cards is misleading
Davi's credited testimony was that, in view of the telephone call he had
received from Mrs. Robinett on April I in which she expressed concern
about the union representative "not leaving ", he asked them "How did you
make out, boys" Robinett then volunteered , "I did not sign for the union
Davi's credited version of the conversation
between him and Mrs. Robinett establishes two
crucial points. First, Mrs. Robinett corroborated her
husband's falsehood of the previous day that he had
not signed an authorization card. Thus, with respect
to Robinett's union activities, Davi knew no more
than he did before. Second, the relationship between
Mrs. Robinett and Davi, bad to begin with
according to Davi because of her constant prying,'
was greatly exacerbated by her accusation that Davi
was spreading rumors that she was not actually
married to Robinett (immediately refuted by Davi)
and by her further accusation that Davi had hired
two male employees in order to "play with their girl
friends." We do not find inherently incredible the
possibility that Davi was at that moment so fed up
with Robinett's wife that he impulsively fired
Robinett and the person most closely associated
with him.' Nor is the General Counsel's case
strengthened by the fact that the alleged
discriminatees were seasonal workers, the season
had ended, and they had little, if any, prospect of
more work to perform. Although we deem the
circumstances surrounding these discharges
suspicious, suspicions and conjecture may not fill the
rather obvious evidentiary gap presented in the
instant case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein he, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, concurring in part and dissenting
in part:
Unlike my colleagues, I would overrule the Trial
Examiner and find that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Gerald Wallis and Ernest Robinett. However, I
agree that the complaint should be dismissed as to
Richard Wallis and Larry Cherney, the other two
alleged discriminatees.
In my view, the Respondent has failed to
adequately rebut the prima facie case established by
the General Counsel to the effect that the discharges
of Gerald Wallis and Robinett were attributable to
Respondent' s manifest union animus rather than
economic or other considerations.
The record clearly shows that Respondent's plant
manager , Joseph Davi, who was responsible for the
discharges of Wallis and Robinett on April 4, 1967,
was aware of the union campaign and their
involvement therein. Thus, on March 29, pursuant
to a report from an employee that a union agent
had visited him at home and left union literature
because I had an experience once before where I lost my lob " Wallis then
said, "I told the union man that I am satisfied with the way things are
now " At that point the conversation concluded
'Davi credibly testified that Mrs Robinett called him several times
between February and April 1967
'Gerald Wallis lived next door to the Robinetts and was frequently
driven to and from work by them
177 NLRB No. 10
POINT ST. GEORGE FISHERIES, INC.
and an authorization card, Davi telephoned the
Union's financial secretary-treasurer, Everett
Matzen, and proceeded to accuse him of
clandestinely attempting to organize Respondent's
plant. During the course of the ensuing
conversation, Davi intimated that should the Union
succeed in its organizational attempt, he, Davi,
would either discharge all the prounion employees
or simply close down his operation and locate
elsewhere.
Several days later, on April 1, Union
Representative Lallatin called at the Robinett home.
Robinett's wife immediately telephone Davi at his
home, informed him of Lallatin's presence, and
requested his advice. Davi replied that he did not
"give a damn what the hell they do because if they
want to join they can join and if they don't want to
join they don't have to join," but added that they
should "just tell him to leave" When Mrs. Robinett
replied, "Supposing he won't leave?" Davi retorted,
"Then just have him thrown out." Despite the
aforementioned telephone conversation, Lallatin,
who was not "thrown out," succeeded in obtaining a
signed authorization card from Robinett, as he had
done from Wallis on a like visit earlier in the
afternoon. Upon reporting for work Monday
morning, April 3, Robinett and Wallis were met at
the timeclock by Davi. In response to Davi's
inquiry, Robinett and Wallis denied having signed
union authorization cards or, in general , having an
interest in the Union.'
Nothing further of consequence occurred until
shortly before noon on April 4, when Robinett's
wife arrived at the Respondent's parking lot to pick
.up Robinett for lunch. Davi approached Mrs.
Robinett and inquired as to what eventually
transpired on the evening of April 1, when Lallatin
was at the Robinett home. Mrs. Robinett informed
Davi that Lallatin was an old friend, that she and
her husband felt sorry for him because he was
unemployed and forced to work for the Union and
in order to help him out and prove to the Union
that he was doing his job her husband had signed a
paper simply acknowledging Lallatin's visit. Shortly
thereafter Mrs. Robinett and Davi became
embroiled in an argument relative to a rumor being
circulated around plant to the effect that the
Robinetts were not legally married. Davi, after
denying responsibility for the rumor and pointing
out the admitted culprit, left the parking lot and
summoned both Wallis and Robinett to the front
office for purposes of picking up their paychecks.
Prior to distributing their paychecks, without any
'While the replies, as the majority has observed , were not entirely
responsive to Davi's question , "How did you make out, boys?" it is clear
to me that their answers more than satisfied Davi's curiosity as to whether
Lallatin had been summarily dismissed , as instructed, and, indeed, he did
not pursue his inquiry at this time. Further , I would view as untenable the
majority' s inference that concern over the union representative "not
leaving" originated with Mrs Robinett for the record shows, as noted
above, that it was Davi who introduced this subject by flatly stating that
they should "Just tell him to leave"
55
explanation of his actions in this respect, Davi
showed Wallis and Robinett a blank union
authorization card and asked them if they had
signed identical cards. After receiving an affirmative
reply from both men, Davi uttered an exclamation
and then gave them their final paychecks.
The Respondent has raised three defenses to the
complaint, none of which, in my opinion,
substantially negate the prima facie case established
by the General Counsel and Charging Party. First,
Respondent would have us believe that the
discharges were attributable to Davi's perturbation
with Robinett's wife's constant pestering which
culminated in the parking lot argument. While this,
standing alone, may have been a legitimate ground
for discharge of Robinett, I fail to see why such
action on behalf of Robinett's wife should have any
bearing whatsoever on Wallis' job tenure. Moreover,
other than the telephone call of April 1 and the
parking lot argument, the only other possible
irritating contact between Robinett's wife and Davi
appears to be confined to one instance in February
when Mrs. Robinett inquired about her husband's
paycheck. Two contacts in a 3-month period do not
in my opinion amount to such annoyance as to
warrant discharge.
Apparently realizing the weakness in its first
defense, Respondent then claims that Wallis was
included along with Robinett for discharge because
he relied on Robinett for transportation to and from
work. However, Davi who, as noted above, made
the selection for discharge negates this defense as he
acknowledged during the hearing that he was not
sure how Wallis traveled to and from work, and
that such consideration did not enter into his mind
at the time he effected the discharges.
Lastly, Respondent defends on the ground of lack
of work due to the seasonal nature of its business.
Although the record substantiates the Respondent's
contention that the first 2 weeks of April constitute
a period of transition, i.e., windup of crab season
and startup of salmon season, and that the work
complement is usually at its lowest at this time of
year, it also shows that the Respondent usually
keeps a skeleton force to prepare both plant and
equipment for the next crop. Moreover, this year,
contrary to past years, the Respondent had
additional work available due to the fact that it was
moving part of its equipment to a new building next
door. In addition to the foregoing, Davi again
appears to contradict Respondent's contention of
lack of work, when he stated that " . . . I was going
to let them work until Thursday, April 6 and the
next week."
Accordingly, in view of all the foregoing,
including Respondent's evident hostility to the
Union, its shifting and inconsistent reasons for the
discharges, and particularly the credited testimony
of Plant Manager Davi, which rebuts for the most
part the Respondent's defenses, I am constrained to
conclude, contrary to my colleagues, that
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's action in discharging Ernest Robinett
and Gerald Wallis was predicated upon their union
affiliation and thereby violative of Section 8(a)(3)
and (1) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner:This proceeding, with
all parties represented by the counsel named above, was
heard by the Trial Examiner at San Francisco, California,
on March 13-15, 1968, on complaint of the General
Counsel and answer of the Respondent.
The complaint herein was issued on June 27, 1967, by
the Regional Director (Region 20) and was amended by
an order dated February 26, 1968. The complaint was
based on a series of charges alleging unfair labor practices
filed as follows:
(a) The initial charge was filed on April 5, 1967, by
Everett A. Matzen, financial secretary-treasurer of the
Union. This charge alleged that the Company' had
violated Section 8(a)(1) and (3) of the Act by the
discharge of two employees named Ernest Robinett and
Gerald K. Wallis and by acts which interfered with and
coerced its employees.
(b) A first amended charge was filed on July 10, by
John B. Salazar, attorney for the Union. This charge
alleged that the Company had violated Section 8(a)(1),
(3), and (5) of the Act by: (1) the discharge of three
employees named Robinett, Gerald K. Wallis and Terry
Anderson; (2) refusing to bargain with the Union which
represented a majority of the Company's employees in an
appropriate unit; and (3) other acts which interfered with,
restrained, and coerced its employees.
(c) A second amended charge was filed on September 26,
by the aforementioned attorney for the Union. This
charge alleged that the Company, since on or about April 4,
had: (1) discriminated against and discharged 40 named
employees, hereafter listed, because of their activities on
behalf of the Union; (2) since on or about June 24, had
refused to recognize and bargain with the Union as the
majority collective-bargaining representative of the
employees; and (3) had violated Section 8(a)(1) by other
acts of restraint and coercion. The list of the allegedly
discharged employees attached to this charge names the
following:'
Ernest Robinett Nellie Micehke
Jerry Wallis Myrtle Smith
Terry Anderson Tillie Nelson
Carol Heard Marion Sorentino
Lena Melton Gladys Stevenson
Richard Wallis Billie Barber
Maud Ward Ruby Barlich
Genevieve Smith Enedina Castanon
Mabel Smith Sara Castanon
Mary Paco (Pacs) Antonia Cruz
'In this Decision , Point St George Fisheries , Inc , will be referred to as
the Company or the Respondent ; Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 364, AFL-CIO , as the Union or the
Charging Party; the General Counsel of the Board and his representative
at the hearing, as the General Counsel; the National Labor Relations
Board , as the Board , and the Labor Management Relations Act, as
amended , as the Act.
All dates in this Decision are in the year 1967 unless specified otherwise.
'The employees whose names are underlined have some relationship to
the ultimate issues herein
Larry Cherney Jerry Jo Cunningham
Cecile Grace Ringue Jerine Cunningham
Rose St. Clair Ruth Bradley
Lilliam Budman Shirley Borgna
Alicia Veloria Leontina Deghi
Rosemarie Pozzi Raylene Fobbs
Mary Merga Frances Romero
Maria Packard Refugio Velarde
Angelina Daverio Gracida Velarde
Lillie Lewis Martha Velarde
The multiplicity of charges and alleged discharges were
severely reduced before issuance of the complaint, with the
result that the complaint, as amended, and presented for
hearing alleged only the following violations: (1) that the
Company had violated Section 8(a)(1) and (3) of the Act
by the discharge of four employees; namely, Larry C.
Cherney and Richard A. Wallis on March 31, and Ernest
Robinett and Gerald Wallis on April 4;' and (2) that
Joseph A. Davi, a supervisor of the Company, had
engaged in surveillance of employees' union activities on
May 18, and March 13; and (3) had interrogated
employees concerning their union activities or sympathies
on April 3 and 4.
The Company in its duly filed answer admitted certain
allegations of the complaint relative to the business
operations of the Company, the supervisory capacity of
the aforementioned Joseph Davi and that the Union was a
labor organization within the meaning of the Act. The
answer denied that Supervisor Davi had engaged in
surveillance or the interrogation of employees and further
alleged that the discharge of the four employees was
effected because the crab- canning season had come to an
end and the Company had no further need for the services
of these men, who were seasonal employees.
At the hearing , counsel for the parties were afforded a
full opportunity to be heard on all issues presented in the
proceeding . Counsel introduced evidence, examined and
cross-examined witnesses and filed briefs which have been
carefully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following findings
of fact:
1. THE BUSINESS OF THE COMPANY
The pleadings and a stipulation of the parties establish
that the Company is a California corporation with places
of business in Santa Rosa and Bodega Bay, California,
where it engages in the business of canning , processing
and selling fish products at wholesale. During the year
prior to the issuance of the complaint, the Company, in
the course and conduct of its operations, sold and shipped
products valued in excess of $50,000 directly to customers
outside the State of California. Upon these facts, I find
that at all times material herein the Company has been,
and is, an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the pleadings and a stipulation of the parties, I
find that Joseph A. Davi at all pertinent times was the
manager of the Company's business operations, and hence
an agent and supervisor of the Company within the
meaning of the Act.
'Richard A . Wallis and Gerald K. Wallis are brothers. For clarity in this
Decision, Richard Wallis will be called Richard.
'The allegations of surveillance , par VI(a) and (b) of the complaint,
were dismissed at the close of the General Counsel ' s case on motion of
Respondent on the ground of insufficient evidence
POINT ST . GEORGE FISHERIES, INC.
11. THE LABOR ORGANIZATION INVOLVED
It is undisputed , and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES
A. Undisputed Facts
It is undisputed that the Company engages in the
business of canning and processing fish at its cannery and
factory located at Santa Rosa , California . Joseph A.
Davi , previously mentioned , testified credibly , and there is
no evidence to the contrary , that the nature of this
business is seasonal , with the seasons established each year
by regulation of the Fish and Game Commission of the
State of California . In the fiscal year 1966-67, the crab
season began on November 15, 1966 , and continued until
April 1, 1967. During this crab season , it is undisputed
that the Company employed between 20 and 25 male
personnel and 125-135 female personnel . Davi testified
without contradiction that in the weeks prior to April 1,
the work force of the Company had been reduced to
approximately 20-30 women and approximately 10-12
men. Davi explained that there were in the Company's
employ approximately six men who worked on a
year-round basis and that as the end of the crab season
approached he terminated the seasonal employees except
for a few men who were assigned the job of making
wooden boxes , which would be used in the shrimp or the
salmon season later in the year . Among the seasonal
employees thus retained were Larry C. Cherney and
Richard Wallis ultimately terminated March 31, and
Robinett and Gerald Wallis ultimately terminated April 4.
It is likewise undisputed that in 1967 the salmon season
began on April 15 and ended on September 13; the shrimp
season began approximately June 1 and ran until the
permitted quota of fish was caught.
In the course of his testimony , Davi stated, again
without contradiction, that as each season ended and in
particular the crab season , the large force of women who
performed the canning operation and the force of seasonal
male employees were terminated . He stated that the
seasonal employees were hired each year from several
sources . As the crab season approached , some of the men
and women who lived in the area applied for work; some
of the workers were furnished by the State Employment
Department . Others applied for a job in the course of the
year , filling out applications which included their address
and phone number.
The Effort of the Union to Recruit Members Among
the Employees; Davi-Lallatin ; Davi-Matzen
Jay E . Lallatin testified that he was hired by the Union
as an organizer on March 18 and was given the task of
organizing the employees of the Company . He began by
interviewing employees of the Company at their homes. In
the course of the interview , he gave to each an
authorization card for the Union and in some cases he
also gave the employee a union pamphlet or a copy of the
union newspaper . In his testimony , Lallatin was vague as
to the extent of his activities or his success in organizing
the employees . He testified that he made contact with
about 25 -30 employees . When he was asked how many of
57
these employees signed authorization cards for the Union,
he replied that he did not remember . At that point,
counsel for the Union said that he would produce the
signed cards and offer them in evidence later in the
hearing . This proposal seemed agreeable to all counsel,
but later in the hearing counsel for the Union stated that
he had changed his mind on this subject , and would
introduce into evidence only the authorization cards of the
four discriminatees . These cards, which are in evidence,
disclose the following sequence:
(a) Employees Richard Wallis and Cherney,
discharged March 31 , each signed a card for the Union
four weeks later on April 25.
(b) Employees Robinett and Gerald Wallis signed a
card for the Union on April 1 and were discharged
three days later on April 4.
Regardless of the extent of Lallatin ' s efforts on behalf
of the Union , it is clear that knowledge of the Union's
efforts came to the attention of Davi because that
company official admitted , in the course of his testimony,
that on or about March 28 , an employee named Frank
Maniscalso told him that a union organizer interviewed
Maniscalso at his home and left with him a blank
authorization card and a labor newspaper . According to
Davi , he told Maniscalso "To go to work , don't pay any
attention to it ." Also, according to Davi , he went into the
factory some 15 minutes later and found that the men,
who were supposed to be making boxes , were gathered in
a group around Maniscalso . He went to the group and
said , "Frank , don't make such a fuss over nothing. Why
don't you tell the men the truth? Let's get through with
those boxes ." Davi said that he kept the authorization
card but threw the newspaper away . He also said that a
few other employees voluntarily told him that a union
man had visited them at their homes . Davi denied that he
questioned any employee about their union activity or
affiliation.
It is clear from the testimony of Davi that he was not
insensitive to the efforts of the Union to organize the
plant . He admitted that in the latter part of May, an
employee called his attention to a man sitting in a car
across the street from the plant and obviously keeping the
plant under surveillance . After watching for approximately
an hour, Davi , accompanied by an employee, took a
pickup truck and drove to a spot in the street , where he
could see the man . He recognized the man as one who
had applied to Davi for a job in the month of February.'
According to Davi, he told Lallatin that he could park
there all he wanted to, but Davi didn ' t want him on
company premises . This ended this confrontation.
Everett A. Matzen, financial secretary-treasurer of the
Union , testified credibly and without contradiction that on
March 29 , Davi , with whom Matzen was acquainted,
called him on the phone at the union office in Petaluma,
California . Matzen testified that Davi told him to stay
away from the Company, and to tell union organizers
Matteoni and Lallatin to stay away , too. Davi said that
Reagan had just been elected governor , and that he would
knock out the unions; that Davi wanted no part of the
Union and that if the Union organized , he would organize
the Latins and Negroes and they would see who was in
charge.
Matzen testified that his secretary took notes of some
things said , and after examining these notes testified that
Davi said that if the Union organized the plant, he (Davi)
'This man was Jay Lallatin, previously mentioned , organizer for the
Union.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would retire and go to Alaska. He said that Matzen was
no longer his friend because he organized "like a snake,"
behind Davi's back, using Lallatin and Matteoni; if
Matzen had wanted to organize he should have come to
Davi, himself. Davi accused Matzen of sending Lallatin
into the plant to get a job in February when in fact
Lallatin was seeking to organize the plant. Davi also said
that he would not again contribute $50 to the Union's
Butcher Ball Program for the benefit of the Union
Welfare Fund.
On cross-examination, Matzen said that he had known
Davi for a number of years and that Davi had made a $50
contribution annually to the Ball Program. He said that
Davi reiterated the complaint that Matzen should have
come to him about organizing the plant and not sent other
persons to do it. Matzen said he felt Davi had mixed up
one of his organizers with one for the Teamsters, who had
also called on Davi.6
The Discharges of Cherney and Richard Wallis on
March 31 ; the Rehire of Richard Wallis
Employee Larry C. Cherney testified that he was hired
for the 1966-67 crab season in the latter part of February
and worked until he was laid off on March 31. On that
day he was not given his final check and he was told to
keep in touch with the Company and it would inform him
if it had more work. A week later, Richard Wallis and he
went back to the plant to get their paychecks. They met
Davi coming out of the office and they asked him for
their checks. Davi said that the checks weren't ready at
that moment but the girls would have them very soon.
They returned about 10:30 in the morning and they
received their checks. Cherney testified that when he was
given his check, Davi said to him, "Here is your checks,
and don't come back."
Cherney testified that during the month of March, prior
to the day of his discharge, he had several conversations
with Davi about the Union in which Davi asked him if he
had joined the Union or if he knew of other employees
who had joined. Cherney could not furnish any dates for
the conversations, or the names of any third persons who
heard these conversations, but he said they occurred
approximately twice a week. Cherney testified that in
these conversations he told Davi that he "didn't know
anything."
Both Cherney and Richard Wallis testified that each
signed an authorization card for the Union at the request
of Lallatin on April 25, approximately 4 weeks after their
discharge.
Cherney testified that on the day after he signed his
card he went to the plant to see, "if the Company had any
work for him." He again met Davi who asked him if he
had anything to do with the Union, or if he knew anybody
who did. Cherney answered that he had signed an
authorization card for the Union, but that still didn't put
him in the Union. Davi did not comment on this.
On cross-examination , Cherney stated that when he
received his check, Davi told him that his employment
was at an end and that he was not to come back. He also
admitted that on the last few days of his employment, the
crab had stopped coming to the plant and the men were
making boxes and cleaning up the plant. Prior to this
date, a large number of employees had been laid off.
`Testimony of these incidents was permitted on the General Counsel's
claim that they showed Davi' s antiunion animus . It should be noted,
however, that no employee is involved in these incidents
There were approximately 10 or 15 male employees
remaining at the plant when he was laid off. When Davi
told him not to come back, Davi did not say anything
about the Union; in fact, there was no reference to the
Union in the entire conversation. Cherney also admitted
that prior to the time that he was laid off he had made it
known around the plant that he was planning to go to
work for the Forestry Service after he finished working at
the Company or he was going to enlist in the Navy and
perform his military service. Davi knew of these plans.
Cherney admitted that when he went back to the plant
and spoke to Davi about his authorization card in late
April that he was no longer an employee of the Company.
On further cross-examination, Cherney stated that on
one occasion he went back to the plant to inquire from
Davi, if Davi had received a letter from the Marine
Corps, as he was trying to enlist in the Marines. Davi told
him that the Company had received an inquiry from the
Marine Corps about Cherney's employment and that he
had already filled out the questionnaire and returned it to
the Marine Corps. He did not ask Davi for a job on this
occasion.
Cherney also admitted that there was an occasion in
September 1967, when he had an altercation with Davi
because Cherney was in the company parking lot writing
down the license numbers of employees' cars parked in the
lot. Cherney admitted that he had been hired by Lallatin
of the Union to perform that task. At the time Davi
found him taking down the license numbers, Davi asked
Cherney to leave the premises and Cherney replied, "Wait
until the National Labor Relations Board hears about
this." Cherney admitted he was paid $4 by Lallatin for
performing this task.
Richard A. Wallis testified that he had worked for the
Company off and on since the year 1959. He usually
worked during the crab season. In 1967 he began working
for the Company in January and he was terminated on
March 31. While employed he was engaged in "backing"
crabs, moving boxes of crabs to and from the tables,
where they were processed and doing other work of a
manual type. Richard stated that on the day he was laid
off by Davi, he had no conversation with Davi about the
Union. He also said that for several days prior to his
termination his only tasks were making boxes and
cleaning up. Some days previous to his termination, Davi
had told those employees still on the job that he was
putting everybody on a 4-day week because the crab
season was coming to an end.
On direct examination, Richard testified that he signed
an authorization card for the Union on April 25 at the
request of union organizer Jay Lallatin. This was some
weeks after his termination. He and Cherney met Lallatin
by appointment at a local cafe and signed cards. Prior to
that time he had not been a member of the Union or
engaged in any union activities. Richard said that on the
Saturday, after he was laid off, he went to the office with
Cherney to get his final paycheck. They met Joe Davi,
who told them that the checks weren't ready, so they
waited until about 10:30-11 a.m., before they went back.
At that time, Davi gave them their checks and, according
to Richard, he said, "Don't come back." Richard testified
that despite this remark by Davi, that after his
termination he went back to the plant about twice a week.
On a date which he could not remember in May, he
encountered Davi. According to Richard, on this occasion
he went to the office and, since Davi was occupied, he
went out into the plant and started to talk to some of the
girls who were working. Davi came out and waved his
POINT ST. GEORGE FISHERIES, INC. 59
arms at Richard and asked him what he was looking for,
and Richard replied that he was waiting to see him. Davi
said that he didn't think he was waiting to see him, that
Davi thought he had come down to the plant to hand out
union cards to the people that were working there.
Richard denied that he was doing that and Davi said that
he thought he was doing that and became angry. Davi
finally said, "Well, I don't want you hanging around."
Richard then said, "How come, because of the Union?"
And Davi replied, "Yes." Then Richard said, "You fired
me because of this Union?" According to Richard, Davi
said, "Yes." With that exchange Richard went out to the
parking lot and sat in his car, but Davi came out and told
him to get off the property.
On cross-examination , Richard stated that he had
worked for the Company since 1959 during the crab
season which ended usually in April or May. For many
years he had at the end of the crab season gone to work
for the Forestry Service as a summer employee in the
firefighting corps. He readily admitted that he had
communicated his intention to do this again in 1967, and
in fact he had gone to work for the Forestry Service in
June 1967. He also admitted that when this job ended
with the Forestry Service in 1967, he phoned Davi and
asked him for a job and Davi put him to work on
December 11. He was still employed at the Company at
the time he testified.
Richard also said that he was a friend of employee
Larry Cherney and early in the spring of 1967 had talked
to Cherney about the desirability of Cherney's going into
the Forestry Service with him and he had agreed to help
Cherney obtain such a position . Richard said that on the
day he was terminated there were only four or five men,
including Robinett and his brother Gerald , still working,
making boxes.
The Discharge of Ernest Robinett and Gerald K.
Wallis on April 4
Wanda Robinett, the wife of the above-named
dischargee , is the principal witness of the General Counsel
as to these discharges . This witness is a large woman who
appears to be the dominant partner in the Robinett
marriage . Robinett is a mild-mannered man of slender
build and moderate height. He testified quite briefly but
his wife testified on all points of this issue. Wanda
Robinett testified that her husband began employment
with the Company on January 4, and that his employment
came to an end on April 4. He had never worked for the
Company before. Mrs. Robinett testified that she drove
her husband to work each morning, picked him up and
brought him back at lunchtime , and picked him up again
at the end of the day's work . She testified that in the
second week of March, while she was waiting to pick up
her husband one evening , she had a conversation with
Manager Davi . She said that she was worried whether her
husband would have work so she asked Davi how much
work there was and how long it would last . Davi said that
she didn't have to worry, that he would try to keep her
husband on building boxes and cleaning up the plant. On
being prompted by another question, she said that Davi
said, "That my husband had been a good worker and he
did what he was told and he also mentioned something
about Jerry Wallis being one of the oldest employees that
he had there and he knew how to back the crabs and
everything and he was a fast backer."
Mrs. Robinett also testified that on a date which she
could not remember , Davi called her at her home and
asked her if anybody had been to their house to talk to
them about the Union. She replied in the negative. Davi
then told her to tell her husband and Jerry Wallis to be at
the plant at 6 o'clock the following morning.
Mrs. Robinett testified that on Saturday, April 1, Jay
Lallatin, the organizer for the Union, came to her home
around 11 o'clock in the morning. Mrs. Robinett told
Lallatin that her husband was on the roof fixing a TV
antenna . Lallatin went outside to wait for Robinett to
come down from the roof. Mrs. Robinett went to the
phone and called Davi. According to Mrs. Robinett, the
following conversation occurred, "I told Mr. Davi that the
union man was at our home and he said, `Has Ernie
talked to him?"' She replied in the negative, and explained
that her husband was on the roof. Then Davi asked, if her
husband was going to talk to the organizer and she replied
in the affirmative. Then Davi said, that if her husband
"wanted a union he can join it, and if he didn't, to tell
him (the organizer) to get out of the house."
On April 4, Mrs. Robinett went to the plant at
noontime, as was her custom. She testified that when she
drove into the parking lot, Davi came out to the car. He
was quite angry. He said that "he had heard that Ernie
(her husband) and Jerry (Wallis) had joined the [u]nion
and he had their signed cards that they had signed and he
knew that they had, and he persisted in asking her if she
knew anything about it." She said that she refused to
make any answer to Davi, but sat looking out the window
of the car.
At that point, Jerry Wallis' brother, Richard, and
Larry Cherney, both employees who had been terminated
on March 31, came on the parking lot and Davi hollered
at them, that they should get off the property as they were
no longer employees. Davi went to these two men and
talked to them and then he said to Cherney, in Mrs.
Robinett's presence, "Tell her in front of me what you
told me yesterday." When Mrs. Robinett was then asked
by the General Counsel what Larry said, she replied that,
"it has no bearing on this case , it concerns my husband
and myself." She said it was something personal. She did
not testify on this point. Then Davi called Jerry Wallis
over and said to him, "I know you have joined the union,
I have got your card. I know you did." Davi appeared
very angry and he said to Jerry, "I don't want the union
in here and you are fired. I don't want anything to do
with the union." Mrs. Robinett said her husband was not
present during this conversation.
On cross-examination, Mrs. Robinett admitted in a
written statement, which she gave a field examiner of the
Board, she said that during the conversation on April 4
with Davi , there were present a man named Ivan Brown, a
man named Keith (something), a Mexican man, Richard
Wallis, Larry Cherney, and Jerry Wallis. She explained,
on further cross-examination, that these men were in the
area and could have heard the conversation but the only
two actually having the conversation at the car were Davi
and herself.'
In the course of further cross-examination, Mrs.
Robinett stated that when her husband first went to work
for the Company they had marital difficulty and she had
occasion to phone Davi and ask about her husband's
paycheck.
Ernest Robinett testified he was employed at the
Company from January 4 to April 4 as a general worker.
He said he had a conversation with Davi in the middle of
'These persons mentioned in the statement as "in the area" did not
testify.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February in which he asked Davi how much longer Davi
thought "we would be working" and Davi said he is going
to try to keep Jerry Wallis and Robinett "on steady for
awhile." He further testified that he had a conversation
with Davi in the office of the Company on March 25.
Present also were two young lady employees, the
bookkeeper and secretary . On this occasion he asked Davi
about the rumors he had heard about the Union and Davi
said that "if we wanted a union we could have it."
Robinett also testified that on March 27 , around 7:30
a.m., he and Gerald Wallis met Davi at the plant and
Davi asked Jerry Wallis if anyone had been around to see
him. Jerry replied that there had been no one to see him
and Jerry then asked "Was there supposed to be?" Later
in the day, he and Jerry Wallis were with five or six other
employees, including Frank Maniscalso . On this occasion,
they were making boxes and all that the witness heard was
that Davi said , "If you wanted a union you could have
it."
Robinett identified an authorization card for the Union
and stated that he signed it on April 1, at his home at the
request of Jay Lallatin, the union organizer. When
Lallatin reached his house that day he was on the roof
fixing a TV antenna and later he came down and after
talking with Lallatin signed the card. Robinett testified
that he had a conversation on Monday , April 3, around 6
p.m., with Davi . He called Davi to find out what time
Jerry Wallis and he were to report to work and Davi told
him to be at work at 6 a.m., the following morning.
Approximately 30 minutes later , Davi phoned him and
asked him if he had signed an authorization card for the
Union . Robinett replied , "that a union man had been
there to see him" but he did not say whether he had
signed a card or not. Davi told him to be sure to be there
at 6 o'clock because they had a lot of crab.
Robinett testified that he didn't have any conversation
about the Union with Davi on April 4, until Davi fired
him. According to Robinett , Davi came to the place where
he was working around 11:30 a.m ., and asked him if he
had signed a union authorization card . He told Davi that
he had signed a card that showed only that a union
organizer had been to his house to see him. Then Davi
said that as soon as Robinett was done that night he could
get out of there, or he could leave now. Robinett said, "If
that is the way you want it , I will leave now." Davi then
started toward the office, followed by Robinett. On the
way they met Jerry Wallis who was also headed toward
the office . The two employees waited until Davi came out
and gave them their checks . As he did so, Davi said that
the men had "better get $80 together to pay the union."
Upon being asked another question , he added that Davi
said that they should "see what the union could do for us
now."
On cross-examination , Robinett said that he saw
Lallatin on only one occasion , that being the time when
Lallatin came to his house when he was fixing a TV
antenna . Or. that date, he signed his authorization card.
Robinett admitted that the only work he performed in the
final days of his employment was the making of boxes
and cleaning up for the coming salmon season . For some
days before April 4, there had been no crab to be
processed , but on April 4 there was a shipment of crab.
He said that during the season the Company had about
200 employees at the plant, but on April 4 there were
approximately 10-20 making boxes and cleaning up.
Gerald Kenneth Wallis also testified , giving his version
of his discharge . He testified that he had worked at the
Company during two crab seasons . In March 1966,
toward the end of the season, Davi talked to him in the
picking room and told him that he liked his work and
would like to keep him on "all year long." However, it is
undisputed that Wallis was injured in April 1966 and did
not work for the Company until October of that year.
Also, during part of the year he was employed by another
company in Santa Rosa at the job of picking prunes. In
the 1966-67 crab season , his job was to drive a forklift,
back crabs and clean up around the plant. On or about
Monday, March 27, he had a conversation with Davi in
the presence of Robinett. On this morning when the
employees first came to work, Davi was at the timeclock
and asked him if some men had come out to his house to
see him? He answered in the negative . Wallis then went
into the plant and talked to Frank Maniscalso and some
other employees. Shortly after this the men were building
boxes when Joe Davi came in and started yelling and
screaming at Frank, saying , "If you want the union you
can have it, and if you don't want it you don't have to
take it.
Wallis identified his union authorization card, which is
dated April 1, and said that he signed it at the request of
organizer Jay Lallatin on that date at his home.
Gerald Wallis also testified that he had a conversation
concerning the Union with Davi on Monday , April 3,
between the hours of 2 or 2:30 in the morning. It is
undisputed that Davi's home is across the street from the
plant. On this occasion, Davi asked Gerald Wallis if he
had signed a union card and Wallis replied in the
negative . Wallis explained this late hour for this
conversation by saying that he and employee Jim Rogers
had been sent by Davi to get a truckload of fish at
Bodega Bay and they had returned at that late hour.
Gerald Wallis also testified that on the next morning,
April 4, he had another conversation with Davi about the
Union in the parking lot of the plant around 11-11:30
a.m. Present at this conversation were Wanda Robinett,
Davi and the witness . Wallis testified that on this occasion
Davi called him to where Davi and Mrs. Robinett were
talking . Davi then asked if he had signed a union card and
Wallis replied that the only thing he had signed was a
card that showed the union man was at his house. Then
Davi said, "I have to tell you to get your ass out of here
and don't come back." Wallis went into the plant and told
Robinett that Davi had fired him for signing a card. A
few minutes later Davi came to them , and showed them a
blank union authorization card , and asked each employee,
if this was the card that they signed. They answered,
"Yes." Davi then went into the office and in a few
minutes came back with a check for each man and said
"You'd better get $80 to pay the union because you are
going to need it."
On cross-examination, Wallis testified that he gave a
statement to an investigator of the Board which stated
that on Monday, April 3, he worked at Bodega Bay with
Jimmy Rogers and that they returned to the plant around
7:30 p.m. As they were driving a company truck, they
went to Davi's house to get the key to the garage of the
plant and Davi gave them the key. While Rogers was
putting the truck in the garage, Davi said , "There's talk
about you signing a union card. Have you signed a card?"
Wallis answered in the negative . When he was asked to
explain this discrepancy in time , the witness said that the
interviewer had asked him so many questions he didn't
know "for sure" what he was saying , that he had been
questioned for five hours . On further cross-examination,
he said that he might have been confused or the field
examiner of the Board might have been confused. In
POINT ST. GEORGE FISHERIES, INC.
regard to Wallis' testimony about Davi's conversation
with Maniscalso , Wallis admitted that his statement to the
field examiner stated that "Davi ' s face was red and he
was ranting and raving , partly in Italian . He was directing
his comments to Frank , who was also Italian ." Wallis
admitted that he did not understand Italian and that the
final words of Davi in English were " If you want a union
you can have it." Wallis admitted that in the last days of
his employment he was making boxes and cleaning up
around the plant . On the date he was discharged, there
10-15 employees at the factory, of which four or five were
all-year round employees.
The Defense
The principal witness for the Company was General
Manager Joseph A. Davi. His testimony relative to the
seasonal nature of the Company ' s business has been
previously reviewed. In 1967 toward the end of March, the
crab season began to come to its normal end, so he laid
off most of the seasonal employees , keeping a few who
were assigned the job of making wooden boxes which
would be used later in the year and in cleaning up the
plant . On March 31 , the making of boxes was nearly
completed so he terminated Richard Wallis and Larry
Cherney on this date because he no longer needed their
services . Furthermore, it was the well-known practice of
Richard Wallis each year to enter the Forestry Service
firefighting corps and to serve in that corps during the
spring , summer and fall months . Richard Wallis had told
Davi that was his intention again in 1967. Davi also had
been told that Cherney was going to seek employment in
the Forestry Service with Richard Wallis, or failing in
that Cherney intended to enlist in the Navy and perform
his military duty. He terminated them on March 31,
because he had no further need for their services and they
were about to voluntarily leave the employ of the
Company to follow these pursuits . Davi stated that in the
course of their employment he had never discussed with
them their own or any other employee 's union affiliation
or activity; nor did he know whether or not they were
members of the Union. He testified that they were laid off
for the same reason that the other 150 plus employees had
been laid off - the crab season had come to an end.
Davi further testified that Robinett and Gerald Wallis
were terminated on April 4, 1967, for the same reason -
that their seasonal employment came to an end and their
services were no longer required . He said that he had kept
a few men on, including Robinett and Wallis , after the
discharge of the other seasonal employees for the purpose
of making boxes and also to clean up the sawdust and
nails and other debris on the floor where the boxes had
been made. Davi said that on Sunday, April 2, about 2:30
p.m., he received a phone call from Wanda Robinett, who
told him that there was a union man at the Robinett
home . Then she asked Davi what should she do.
According to Davi, he told her that he didn't care what
the men did , because "if they want to join they can join,
and if they don't want to join, they don't have to join.
Just tell him to leave." Then Mrs. Robinett said,
"Supposing he won ' t leave?" Then Davi said , "Then just
have him thrown out," and that was the end of the
conversation . On the following morning he talked to
Robinett and Jerry Wallis at the time-clock at the plant.
In view of the telephone call he had received from Wanda
Robinett on Sunday , he asked them, "How they made
out?" In this he was referring to the fact of Mrs.
Robinett ' s concern about the man "not leaving." Robinett
61
replied, "I did not sign for the union because I had an
experience before and I lost the job." Then Jerry Wallis
said, "I told the union man that I am satisfied with the
way things are now." That ended the conversation.
Davi testified that he never questioned any employees
about their affiliation or union activities, but some of the
employees had come to him and said that a union man
had come to their home and left a pledge card. One
employee (Maniscalso) gave him a union card and a copy
of a labor paper which had been left at Maniscalso's home
by the union organizer. He kept the union authorization
card in his desk drawer but threw the paper away. Davi
also stated that on the day that Maniscalso gave him the
union card he told him not to pay any attention to it, and
Maniscalso went to work. About 15 minutes later, Davi
went into the factory and no one was making any boxes.
The men were congregated around Maniscalso who was
talking. He went to the group and said, "Frank, don't
make such a fuss over nothing. Why don't you tell the
men the truth? Let's get through with those boxes." Davi
further testified that on April 4, at approximately 11:30
a.m., Wanda Robinett drove into the parking lot at the
plant. He went over to her and asked, "how she made
out," referring to the visit of the union organizer on the
previous day. She said that the union man was a friend of
her father's and had worked with her father on one
occasion. Then she explained that the boys (her husband
and Jerry Wallis) felt sorry for him and signed a paper
showing the Union "that this man is actually working,
visiting the employees at Point St. George, trying to get
them to sign up for the union." Then Mrs. Robinett said
that Davi had made accusations about her and Robinett
not being married. Davi told Mrs. Robinett that he had
said no such thing, and seeing Larry Cherney crossing the
parking lot, he called Cherney to the car and said to him,
"Wanda is accusing me of going around and saying that
she and Robinett are not married," Then Cherney said,
"He did not say it, I said it," meaning himself. Then Mrs.
Robinett said that the only reason Davi gave Cherney and
Richard Wallis a job was because he was trying to play
around with their girl friends. At that point, Davi became
angry and called to Robinett and Jerry Wallis who were
in the plant. He said, "Come over here. Punch your time
and I'll have the girl make out your checks." Then he
went into the office and instructed the office girl to make
out their pay to 12 o'clock and he took the checks out to
them where they were waiting on the platform. At that
point, they had already been discharged. While the girl
was making out the checks, Davi went to the office and
took the pledge card that Maniscalso had given him and
he asked each man, "Did you sign one of these cards ? "
They hesitated, but then replied in the affirmative. He
said , "Christ, isn't there anybody that will tell the truth
any more?" and he walked away. The checks were
ready, so he signed them and gave them to the two
employees.
Davi denied that he had a conversation with Gerald
Wallis about the Union on April 3, at approximately
2-2:30 a.m. Davi said that on that date Wallis and Rogers
were sent to Bodega Bay in a truck to get fish, but that
they returned at approximately 8 p.m. The timecard of
Jerry Wallis, which was identified and put in evidence,
shows that Wallis finished work at 8 p.m., on April 3.
Mary Canavari, the timeclerk who made out the time slip,
testified that both Rogers and Jerry Wallis had stated to
her that hour as the time at which they finished work on
that day; the day before Wallis was discharged.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
The testimony of the witnesses presented by the
General Counsel has been set forth in the prior section of
this Decision at considerable length because , as the trier
of the facts, I have determined that much of it must be
rejected as untrue or unreliable in light of certain
undisputed facts which provide an illuminating
background for an examination of this testimony. These
basic facts with certain comment thereon are as follows:
1. Upon all the evidence herein , including the testimony
of the General Counsel ' s witnesses, it is undisputed that
the business of the Company is seasoned in nature with
the seasonal periods defined by the Fish and Game
Commission of California.
2. It is undisputed that in the crab season the Company
employs approximately 125-150 seasonal female
employees engaged in canning , etc., and approximately
25-30 seasonal male employees who perform unskilled
manual labor in the plant.
3. It is undisputed that the four dischargees named in
this complaint were all seasonal, hourly rated employees.
4. It is clear that the crab season in 1967 officially
ended on April 1, but prior to that date the force of
women employees had been terminated and only a handful
of men remained ; they were assigned to making boxes and
cleaning up the plant . Among this group were the four
dischargees.
5. Although the Union, in its charge dated September
26, claimed that 42 employees had been discriminately
discharged, the General Counsel, after investigation,
issued a complaint naming only these four employees.
Under the circumstances , it is reasonable to conclude that
the other 150-plus seasonal terminations were effected
without discrimination. Thus we are faced with the
question - what is the proof that these discharges, unlike
other discharges, are discriminatory in nature?
6. An additional remarkable feature of this case is the
fact that of the work force of the Company's employees of
some 180-plus men and women , this group of four
employees, plus one wife, were the only employees who
testified that the Company had committed unfair labor
practices.
With this basic undisputed evidence in mind, we may
turn to a consideration of specific testimony.
The testimony of Davi, the General Manager of the
Company, is in direct conflict with the testimony of the
four discriminatees. In their testimony the latter portrayed
Davi as "hollering" and "yelling" around the plant in
rage at the advent of the Union. Davi on the witness stand
impressed the Trial Examiner as a positive person , but not
as one who had little or no control of his temper or
feelings. As a witness, Davi testified forthrightly, without
the slightest hesitation , and his answers were quickly
spoken without apparent regard as to whether they
advanced or retarded his side of the case , e.g., his ready
admission that employee Maniscalso had reported
voluntarily to him that a union man had been to
Maniscalso ' s home , or that he had asked Robinett and
Gerald Wallis if they had signed a card for the Union on
April 4. Sometimes when Davi gave direct denial to
specific testimony offered by the employees he was
indignant and spoke emphatically , but at all times he was
courteous and respectful to all counsel . Davi ' s manifest
candor and his offhand , almost disinterested manner of
testifying made him a most persuasive witness.
Davi testified that he discharged the four discriminatees
because the crab season had come to its end and he no
longer required their services.
Now let us turn to the testimony of the employees.
Richard Wallis and Cherney: These men were
discharged on March 31. The record does not disclose that
they engaged in any union activities. In fact, they did not
join the Union until they met Lallatin at a local cafe on
April 25, and after talking to him, signed a union
authorization card. April 25 is approximately four weeks
after their discharges. It is noteworthy that at the time
each of these men were discharged, which occurred
separately, there was no word uttered by Davi or either
man concerning the Union.
Cherney testified that on the day after he signed the
card, April 26, he went back to the plant to apply for a
job and Davi asked him if he had signed a card for the
Union. Cherney also testified that Davi had asked him
about his own and the union activities of other employees
in the last two weeks of his employment, but Cherney
admitted he did not know the dates of these interrogations
and no other employee had heard them. According to
Cherney, he told Davi he "knew nothing." Davi denied
that any such interrogation took place at any time. As
between Davi and Cherney, I credit Davi. Cherney's claim
of his own union activity and Davi's interrogation is
obviously an afterthought inspired by Cherney's later
partisanship and brief employment by the Union. I deem
Cherney's testimony a fabrication and reject it.
Richard A. Wallis admitted that on the day of his
discharge neither he nor Davi mentioned anything about
the Union. Apparently, like Cherney, Richard was not a
union adherent, or did he engage in any union activity
prior to his discharge, for he did not sign a card for the
Union until April 25, with Cherney. But, according to
Richard, on an unspecified date after he signed a card, he
went back to the plant and became embroiled in a heated
argument with Davi, in which he asked Davi, "You fired
me because of this union?" And Davi replied, "Yes." This
one word of testimony of Richard is offered as a
confession by Davi! What a handy, readymade device to
transform a seasonal layoff into a discriminatory
discharge, even some months after the discharge! There
only one thing wrong with this testimony. The Trial
Examiner would be naive indeed if he were to believe such
a patent, self-serving statement. In the light of all the
evidence, I deem this testimony of Richard Wallis to be
an outright lie.
I reject the testimony of Cherney and Richard Wallis
on these points, not only because of the implausibility or
patness of their testimonies but also because of their
demeanor and bearing on the witness stand. Both of these
men as witnesses appeared at ease until their direct
examination approached these crucial points mentioned
above, then like schoolboys, who had predetermined to tell
a falsehood, they hurried their recital, mumbled it, and
seemed relieved once the ordeal of the falsehood was past.
As between the forthright, candid, unhesitating testimony
of Davi and the clumsy falsifications of Cherney and
Richard Wallis, I must accept the testimony of Davi,
which is persuasive in itself and is consistent with all the
basic facts of the case previously enumerated.
Robinett and Gerald K. Wallis. The discharges of these
two employees again present a direct conflict of
testimony. Wanda Robinett, the principal witness for the
General Counsel on these discharges, testified that some
days prior to these discharges Davi telephoned her at her
home and asked if a union man had called at her home.
Davi in his testimony disdainfully denied that this phone
conversation had taken place and emphatically stated that
POINT ST. GEORGE FISHERIES, INC.
he never phoned Mrs. Robinett, although she had phoned
him on several occasions about her husband's paycheck
when they were having some marital troubles. Both Mrs.
Robinett and Davi are in agreement that on Saturday,
April 1, she phoned Davi to tell him that a union
organizer was at the house and Davi replied that if her
husband wanted to join the Union, to join it, and if he
didn't want to join, to tell the organizer'to get out. When
cross-examined on this point, Davi said that he was at
home just sitting down to see a baseball game on
television when the call came, and he was irked by the
ridiculous nature of Mrs. Robinett's question as to what
she should do if the organizer wouldn't leave the house
when requested.
As to what happened on the day of these discharges,
these two witnesses differ. Davi testified he asked Mrs.
Robinett how she had made out, and that after receiving
her answer Mrs. Robinett accused Davi of spreading a
false rumor about her marriage . Now we may pause and
ask, Did this element in the conversation actually take
place? I must conclude that it did because when she was
asked about this part of the conversation on
cross-examination, Mrs. Robinett said that this portion of
the conversation was about "a personal matter" and had
no bearing on the case. Davi also testified that he called
Cherney to the car and Cherney accepted responsibility
for the rumor, but when Cherney in turn was called as a
witness Cherney was not asked about this incident! I deem
this important because Davi testified that at that point in
the conversation be became fed up at Mrs. Robinett's
gossipy charges and he determined to end the employment
of her husband at that moment, and did so. He also
terminated Gerald Wallis, apparently, because the two
men rode back and forth to work together. Davi explained
his precipitate action by saying that the men were at the
end of the season in all events, so he terminated them on
the spot.
But at that point, an event occurred on which the
General Counsel places heavy emphasis . Davi admitted
that while the checks for the men were being prepared he
took a blank union card from his desk and asked each
man if he had signed the card. They answered in the
affirmative and he made the remark about telling the
truth.
On these admitted facts the General Counsel argues
that the close time relationship between the interrogation
as to the card and the discharges illustrates that the
discharges were discriminatory in nature . Counsel for the
Company argues that the discharges were effected because
the men had reached season ' s end and Davi was irked
with Mrs. Robinett.
As had been stated in decisions of the Board and the
courts, in many discharge cases the determination of
63
motive from a few, or obscure facts, is a difficult task, but
there are some principles which are of assistance. In
general the burden of proof in an unfair labor practice
case rests on the General Counsel. In Salinas Valley
Broadcasting Corporation v. N.L.R.B.,' the court pointed
out that:
An unlawful intent is not lightly to be inferred. It
cannot rest on remote or speculative evidence. (Citing
N.L.R.B. v. Citizen-News, 134 F.2d 970 (C.A. 9)) It
should not rest upon an inference which itself rests on
an inference.'
Also, recently in Lozano Enterprises v. N.L.R.B., 356
F.2d 483 (C.A. 9); the same court cited with approval the
following statement from N.L.R.B. v. McGahey, 233 F.2d
406 (C.A. 5):
With discharge of employees a normal, lawful
legitimate exercise of the prerogative of free
management in a free society, the fact of discharge
creates no presumption, nor does it furnish the
inference that an illegal - not a proper - motive was its
cause. An unlawful purpose is not lightly to be inferred.
In the choice between lawful and unlawful motives, the
record taken as a whole must present a substantial
basis of believable evidence pointing toward the
unlawful one. [Emphasis supplied.]
Applying the principles enunciated above to the
testimony here, I must find that the totality of the
evidence, which includes the testimony of Davi, which I
credit, preponderates heavily in favor of the Respondent. I
find, therefore, that the four named employees were
discharged because their seasonal employment had come
to its normal end and not because they had engaged in
union or protected activities.
I find further that the alleged interrogation of the four
employees, to which the four testified, did not in fact
occur. This rejected testimony I judge to be contrivance or
fabrication.
In his testimony Davi admitted that after he discharged
Robinett and Gerald Wallis he asked each if the employee
had signed a card for the Union, and Davi then made a
remark about telling the truth. I find that this incident is
an isolated incident, and that it occurred after their
seasonal employment had been terminated and that Davi's
question under the circumstances does not constitute
interrogation within the meaning of the Act.10
For the reasons stated above, the complaint herein is
dismissed in its entirety.
'334 F .2d 604 (C.A. 9).
'See quotations from collated cases.
"Blue Flash Express, Inc, 109 NLRB 591. Beaver Valley Canning
Company v N.L.R B, 332 F.2d 429 (C A. 8).