The Texstar Corp.

National Labor Relations Board - Board DecisionsJan 21, 1964

145 N.L.R.B. 1185 (N.L.R.B. 1964)

AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1185 WE WILL NOT in any other manner interfere with, restrain , or coerce any of our employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act , or to refrain from any or all such activities. All our employees are free to become or remain , or to refrain from becoming or remaining , members of Upholsterers ' International Union of North America, AFL- CIO, or any labor organization. ROWE FURNITURE CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Aimed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions Aztec Ceramics Company, a Division of the Texstar Corpora- tion and International Brotherhood of Operative Potters, AFL-CIO. Case No. 23-CA-1270. January V, 1904 SUPPLEMENTAL DECISION AND ORDER On September 28, 1962, the Board issued its Decision and Order in the above-entitled proceeding I in which it found, in agreement with the Trial Examiner, that the Respondent had engaged in certain un- lawful conduct and ordered an appropriate remedy. The Board also agreed with the Trial Examiner that the record did not establish that Respondent had discriminated as alleged with respect to the layoff and recall of employee Ortega and ordered dismissal of the complaint with respect thereto. Thereafter, on June 13, 1963, the U.S. Court of Appeals for the District of Columbia Circuit handed down its decision enforcing the Board's Decision and Order with respect to the unfair labor practices found, but vacating the Order as to Ortega and remanding that portion of the case "for consideration of the claims as to Ortega's reinstatement" in light of certain record evidence. Accordingly, we 2 have reviewed the record and particularly the evidence referred to by the court. '138 NLRB 1178. "Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown] 145 NLRB No. 106. 734-070-64-v of 145-76 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ortega was employed in July 1958 in the spray department , and was working in the press department when he was laid off on March 17, 1961. He was recalled on June 5, 1961. The evidence involved in the remand concerns the question of whether employee Villegas, who had been laid off from the spray department , was in fact recalled to per- form the work of Ortega 's classification of off-bearer in the press de- partment before Ortega was returned to his old job. The specific evidence consists of the testimony of Plant Manager Grimes, which appears in the record as follows : By Mr. AVEDON, Counsel for the General Counsel : Q. Mr. Grimes , if I recall your testimony yesterday you stated that you didn 't recall or know each person working in the plant personally ; with respect to layoffs, you would contact your su- pervisors or lead men and they would provide the information to you. Is that correct? A. That is true. Q. Nov , with respect to people that were laid off in the March layoff such as Pedro Ortega, he was laid off ? A. I believe that's right. Q. Do you know what department he worked in? A. I believe he was in the press room. Q. That's right , and who did you contact when you decided that there was going to be a layoff about which people were to be laid off in the press room? A. Alfredo Lopez, the foreman, and Stanley Cooper , the su- pervisor or plant superintendent. Q. Then these two gentlemen stated that the man they wanted to let go is Mr. Ortega , is that right? A. Well, it was more a, statement of the people that they wanted to be sure and keep, or our press operators and hand press operators. Q. In other words, the recommendation was that certain people were to be kept and therefore of necessity with a cut down, others would have to be let go? A. Yes, and Mr. Ortega was an off bearer or a laborer's job. * * Q. You know a Fidel Villegas ; does that name ring a bell? He worked as a, pickup man. A. Yes, I do recall the name. * * * * * * * Q. (By Mr. AVEDON .) He started working for the company in 1958, didn't he? A. I wouldn 't know that. AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1187 Q. You wouldn't know that? A. No. Q. He was laid off, wasn't he? A. I don't remember much about this fellow. I know that he did work for us and that he- was in the spray room. Particular instances of him I am not familiar with. Mr. WEIss [Attorney for Respondent] : We object to this evi- dence as irrelevant and immaterial. He is not named as an alleged discriminatee. Mr. AVEDON : I am showing other people called to the different departments contrary to the witness' testimony. Q. (By Mr. AVEDON.) I show you this. Have you ever seen this information before? Mr. AVEDON : It is what you provided to me, Mr. Weiss. Q. (By Mr. AVEDON.) I show you the name Fidel Villegas. It says he worked in the spray department as a pickup man. Isn't that correct? It says he was laid off 4-18-61. He was recalled 5-16-61, returned in press as off bearer. Then he was transferred to the spray department. That is from your company records, isn't that correct, Mr. Grimes? Am I correct? A. Appears to be, yes. Grimes' testimony does not clearly establish as a; fact that Villegas was recalled to perform unskilled work in the press department be- fore Ortega was recalled to his old job. This becomes particularly evident when the last quoted question by the General Counsel is read in the context of the testimony which preceded it. For Grimes had, by his response to preceding questions, demonstrated an inability to state from his own knowledge the facts relating to specific personnel actions taken by the Respondent. The question involved consisted of a lengthy series of queries encompassing purported statements of facts but elicited only the response, "Appears to be, yes." In its context, Grimes' response cannot be said to have adopted all the facts asserted in the General Counsel's question. Nor can Grimes be said to have attested to the accuracy of the facts reflected in the unidentified paper to which the General Counsel referred or to have affirmed that it was a transcription from company records. As we read Grimes' testi- mony, he was at most saying that the statements made by the General Counsel gave the appearance of being information taken from com- pany records but that personally he could not from his independent knowledge attest to or disprove their authenticity or accuracy. This is not probative evidence upon which the Board can rely to establish the facts basic to a finding of unlawful discrimination. The posture of this testimony required that it be supported by the documentary evidence from which it was purportedly taken. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, the need for documentary authentication is particu- larly manifest where, as here, the information asserted in the question posed by the General Counsel is inconsistent with the two conflicting versions of the same alleged facts given by the only two witnesses Who purportedly were testifying from their own knowledge. In this respect, Ortega testified that when he was laid off Fidel Villegas Was the one who took his job although he had never seen Villegas work- ing in the press department before the layoff. On the other hand, the press department foreman, Lopez, testified that all unskilled em- ployees in the department were laid off at that time and that their work, including that of off-bearer, was performed by the skilled em- ployees who were retained. He further testified that Fidel Villegas never did any of Ortega's work, but came to work in the department after Ortega was recalled. Thus, Ortega's testimony makes no al- lowance for layoff period for Villegas whereas Foreman Lopez' testi- mony would have Villegas reporting to the press department after June 5, and both are inconsistent with the assertions in the General Counsel's questioning of Grimes. The Trial Examiner was unwill- ing to accept either the Lopez or the Ortega version as accurate, noting that the foreman had been found unreliable in another instance, but that Ortega's assertion appeared to have a questionable foundation. Not only were the company records not put in evidence by either party, but the General Counsel failed to have the document, from which he was purportedly reading while examining Grimes, identi- fied and placed in the record. With apparent reference to the inter- rogation, the Trial Examiner observed that the company records "which might well have . . . resolved . . . the question of fact . . ." were not introduced into this record. He therefore concluded that the General Counsel had failed to sustain his burden of proving actual discrimination against Ortega. The Board adopted this finding and conclusion. As we read its opinion, the court agreed that the quoted interroga- tion of Grimes did not constitute the placing of company records into evidence. The only question is whether the effect of that interroga- tion was to place in the record testimony evidencing what the company records reflected. As indicated above, we hold that it did not. In these circumstances, we affirm our conclusion that Ortega was not laid off in violation of the Act, and further find that the General Counsel did not establish by a preponderance of the evidence that Ortega was recalled in an unlawful manner.3 3 we observe and find that even if the Grimes testimony could be interpreted as establish- ing as a fact recall of Villegas to the press department before Ortega was recalled, the record fails to establish that this was out of the order of seniority. For both were em- ployed by the Respondent in 1958 ; both had worked in the spray department , there is some indication that both may also have worked in the press department, and both had occupied unskilled classifications. The record also fails to establish that Villegas was not AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1189 [The Board dismissed the complaint insofar as it alleges discrim- inatory layoff and recall of Pedro Ortega.] MEMBER BROWN, dissenting : I disagree with the interpretation placed by my colleagues upon the testimony under consideration here, and Would find that Ortega Was recalled from layoff status in a. discriminatory manner in violation ofSection8(a) (3) and (1) of the Act. It is clear to me that Grimes, who as plant manager was in a posi- tion to have personal knowledge of the company records, was an evasive witness. Nevertheless, when he was confronted with written information taken from those records, which was specifically iden- tified for him as material supplied to the General Counsel by Respond- ent's attorney, he hesitated to dispute it. Instead, he attempted to give as evasive an answer as possible without committing perjury. The Board has long recognized that an adverse inference may be drawn from the failure of a party to produce available evidence 4 The Respondent had its records and knew what they contained. If such records differed from what the General Counsel represented them to be through witness Grimes, and what Grimes admitted appeared to be an accurate statement of What they reflected as facts, then it Was incumbent upon Respondent to so demonstrate by presenting documentary evidence to establish that difference. Absent any effort to overcome the inferences created by the General Counsel's inter- rogation of Grimes, I would find that Grimes' testimony establishes the recall of Villegas into Ortega's department and classification on May 16, 1961, in advance of Ortega's recall on June 5, 1961. Regardless of which of these employees had more Company senior- ity, there is no question but that Respondent claimed to have used departmental seniority in this particular layoff. There is also no question but that Villegas was laid off from the spray department whereas Ortega was laid off from the press department. Application of departmental seniority would require that each be preferred for recall in the department from which lie was laid off. Respondent clearly departed from this procedure without explanation. That Vil- legas was not a union adherent is evident from the fact that lie did not go out with the employees at the time of the strike. Ortega's union adherence and activity was admittedly known to his foreman who was consulted with respect to his layoff. In the context of ex- tensive antiunion activity, including strikingly similar discrimina- a union adherent or that the Respondent had any knowledge of Villegas' nonunion status at the time of the alleged discrimination here in question The strike referred to by our dissenting colleague occurred after the alleged discrimination 4 See International Association of Bridge, Structural and Ornamental Iionicoil.ers, Local 600, et at (Ray City Erection Company, Inc ), 134 NLRB 301, at 306, and cases cited in footnote 11 thereof. 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory treatment accorded by Respondent to other active union adher- ents, I find inescapable the conclusion that Respondent discriminated against Ortega in his recall from layoff status because of his protected concerted activity and union adherence. Accordingly, I would order that Ortega be made whole for the loss of pay suffered by the dis- criminatory delay in his recall. 1. Posner, Inc.; Posner Distributing , Corp.; Posner Beauty and Barber Supply Corp .; and Hamilton Posner and District 65, Retail , Wholesale and Department Store Union , AFL-CIO. Cases Nos. 2-CA-8867, 2-CA-8936, and 2-CA-9021. January 22, 1964 DECISION AND ORDER On September 3, 1963, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices, and recommending that they cease and desist therefrom, and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. He also found that the Respondents had not en- gaged in certain other unfair labor practices and recommended dis- missal of the complaint as to them. Thereafter, the Respondents and the General Counsel filed exceptions to the Trial Examiner's Decision and briefs in support thereof and the General Counsel filed a brief in answer to the Respondent's exceptions and brief.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown]. 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 Ex- aminer's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner 2 with the following modifications. The Respondents except to the Trial Examiner's findings that Jose Greenberg and Bill Brown were supervisors as defined in the Act. We agree with the Trial Examiner's findings in this respect for the following reasons : Jose Greenberg: Relying on testimony which he credited, the Trial Examiner found Jose Greenberg to be a supervisor in that he possessed 1 The Respondents ' request for oral argument is hereby denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties. 2 We find without merit the contention of the Respondents that the Trial Examiner was biased or prejudiced against them . A consideration of the entire record shows no basis for so finding. 145 NLRB No. 117.