Mauricio & Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 491 (N.L.R.B. 1980)

MAURICIO AND SONS, INC.
Mauricio and Sons, Inc., Division of Campbell In-
dustries and International Longshoremen's and
Warehousemen's Union, Local 29. Case 21-
CA- 17658
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEII.1O
On July 8, 1980, Administrative Law Judge
Frederick C. Herzog issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Product. Inc., 91 NLRB 544 (1950))., enfd. 188 F 2d 362 (3d Cir.
1951) We hae carefully examined the record and find no basis fir re-
versing his findings
2Since the Administrative Law Judge discredited emplo)see Ken Bish-
op's testimony on other grounds, we find it unnecessary to pass on his
discussion of the inferences ti be drawn from the failure of the General
Counsel to call Superlisoir Al Pereira a a witness t corroborate Bish-
op's testimony
DECISION
STATEMENT OF THE. CASF
FREDIRICK C. HRZO(;, Administrative Law Judge:
On March 26, 1979,1 the International Longshoremen's
and Warehousemen's Union, Local 29, ILWU (herein-
after referred to as the Union), by and through its Inter-
national organizer, Frederick W. Nagel. filed an unfair
labor practice charge against Mauricio and Sons, Inc.,
Division of Campbell Industries (hereinafter referred to
as the Company) of San Diego, California. Based there-
] Unless otherw ise Indicated all dates referred tio hereinafter hall be in
the ear 1979
252 NLRB No. 73
on, the Regional Director for Region 21 of the National
Labor Relations Board issued a complaint on September
10. The complaint alleged that since on or about March
23, the Company failed and refused to return an employ-
ee named Garrett Moffitt to employment following dis-
ability leave because Moffitt engaged in union or other
protected concerted activities, by hich conduct the
Company is alleged to have violated Section 8(a)(l) and
(3) of the Act. The Company's answer denied every alle-
gation of wrongdoing in the complaint.
Accordingly, a hearing was held before me at San
Diego, California, on October 25 and November 13. All
parties were present,2 were afforded full opportunity to
present oral and written evidence, 3 and to examine and
cross-examine witnesses. At the conclusion of the hear-
ing all parties were afforded, though each waived, the
opportunity to argue orally on the record. Instead, writ-
ten briefs, each of which were helpful and persuasive,
were later filed on behalf of the General Counsel and the
Company. They have been carefully considered.
Upon the entire record thus compiled, and generally
described, and from my observations of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The complaint alleges that the Company is a Califor-
nia corporation, and that it is engaged in the business of
boat building and repair at San Diego, where, in the
course of its business operations, it annually receives
goods and products valued in excess of $50,000 directly
from suppliers outside the State of California, and annu-
ally sells and ships goods and products valued in excess
of $50,000 directly to customers located outside the State
of California. These allegations were admitted it the
Company's answer. Accordingly, I find that the allega-
tions of the complaint are true, and that the Company is
2 A representative of the Charging Party was present throughout his
proceeding except for that portion which occurred after 4 p m on No-
vember 13 At that time he announced that he would have to lease due
to another engagement, and advised that he swould have o objection
should the hearing continue in his absence No part) objected to his de-
parlure.
A one point in the proceeding the General Counsel offered into ei-
dence a position paper prepared and submitted to the Regional Office by
the Cormpan)'s atllorne, The offer was made in an effort to demonstrate
that the Cmpany's position had shifted. The Company's attorney then
aninunced that he would he required to secure another ltorne to
appear in the case so that he could testify concerning his letter of posi.
tllon He also renewed his earlier request for a continuance. he request
for continuance seemed to he based upon bth the need to secure addi
tional counsel as well as his understanding that the hearing had been
scheduled for only one day. The Company's attorney stated that he was
confronted with conflicting appointments for the following day In light
of the General Counsel's statement, in effect, joining and supporting the
request a continuance was granted
Upon the resumption of the hearing in November the Compans's at-
torne 5 nted a change in the law, as well as a change in his firm's policy.
thereby permitting him to testify without additional cunsel And. of
course, has ig b now obtained the sought after conltinuance. the request
for continiince pre.ilollslx denied was effectiely mooted Addltlninall,
the Compa;ln'y altrne5 no longer pressed his obeciion to the receipt in
esidence of his stalemerit of position
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. HE ABOR ORGANIZATION
The complaint alleges and the answer admits that the
Union is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act. Accordingly, I find and conclude that such allega-
tion of the complaint is true.
111. THE AI.LEGEI) UNFAIR LABOR PRACTICES
A. Background Facts
The Company here is a fairly small shipyard founded
in 1950 by Anthony Mauricio, Jr. Its work is performed
at two sites, one called the Shelter Island yard, and the
other called the Hicock yard. The second site, the
Hicock yard, was not begun until 1964. It currently en-
gages in repairing yachts and commercial fishing boats,
as well as boat building and the outfitting thereof, gener-
ally of boats known as skiffs. In performing this work, it
normally employs approximately 35 people at the Shelter
Island yard in such classifications as painter, carpenter,
welder, machinist, and wayman. It normally employs ap-
proximately 30 other employees at the Hicock yard, with
classifications such as welder, shipfitter, sandblaster, and
painter. Occasionally, these employees transfer from one
yard to the other.
Anthony (Tony) Mauricio, Jr., is still in charge of the
overall operation of these yards which he founded,
though the corporation has itself been sold to a parent
company, also located in San Diego, known as Campbell
Industries.
The Hicock yard is actually located inland approxi-
mately 2 or 3 miles from the shoreline and has no direct
access to the ocean. Due to its distance from the Shelter
Island yard, it is run throughout the greater portion of
the day by a man named Ed Ribeiro. Tony Mauricio
generally comes over to the yard at Hicock around 6:30
or 7 in the morning and spends approximately an hour or
so laying out the work to be done and inspecting the
work which has already been performed, as well as gen-
erally talking over and discussing whatever problems
may have arisen or which may be anticipated with Ri-
beiro or, until recently, another man who was denomi-
nated as a working foreman at the time the events in
question occurred, Al Pereira.
B. The Supervisory Issues
The question of the supervisory authority of Ribeiro
and/or Pereira has been placed into dispute by the Com-
pany. According to the Company, neither of these men
exercised sufficient independent judgment to be denomi-
nated as a supervisor within the meaning of the Act.
And evidence was presented to the effect that neither
could hire, fire, or suspend. According to Tony Mauri-
cio's testimony, Pereira, in his job as a working foreman,
had charge of the Company's quality control at the
Hicock yard, in addition to his duties of driving a fork-
lift, which occupied roughly 50 percent of his time. Per-
eira was an hourly paid employee, receiving overtime if
warranted, while Ribeiro was salaried. Pereira did have
authority, as did Ribeiro, to assign employees and to
move them from job to job within the Hicock facility, as
well as to require them to correct mistakes, and to even
rebuke them therefor. And according to the testimony of
Bishop, Pereira could recommend hiring of other em-
ployees. While Pereira was hourly paid, he was receiving
a 15-cent-an-hour pay differential above the next highest
paid employee in the Hicock yard. While the evidence
indicated that neither Ribeiro nor Pereira ever issued a
written warning, a suspension, or a discharge slip to an
employee, it also appears clear that each was consulted
by Mauricio with respect to personnel matters and that
each was regarded by Mauricio as a part of his confiden-
tial team and, while the documents that they may have
issued were not in fact called "warnings" or "suspen-
sions," it appears clear that the documents had a serious
impact upon the working conditions of employees, in-
cluding the alleged discriminatee herein.4 And, finally, I
note that according to General Counsel's Exhibit 7, that
being the Excelsior list in an election at the Company to
be described infra, the Company failed to list the name
of either Al Pereira or Ed Ribeiro.
Based upon the totality of the record, and my unwill-
ingness to conclude that so large a group of employees
was left totally without supervisors, I am convinced that
both Ribeiro and Pereira were supervisors within the
meaning of Section 2(11) of the Act. I so find.
C. The Refusal To Return Moffitt to Employment
The Company currently has no collective-bargaining
relationship with any union and apparently has never
had one. The activity which led to this case began
roughly in October 1978 with the Charging Party as the
union involved and the alleged discriminatee, Garrett
Moffitt, and another employee, Ken Bishop, in the fore-
front of the employee-organizers. Both Moffitt and
Bishop were utilized on a number of occasions by the
Union to hand out leaflets and other materials at the
gates of the Hicock yard up until early December of
1978.
By that time, the Union had filed an unfair labor prac-
tice against the Company, apparently alleging that, upon
the advent of the Union's organizational activities, the
Company had engaged in certain violations of Section
8(a)(l) of the Act (as set forth in the Company's brief,
Mauricio and Ribeiro told employees that the Company
would not permit union representation of its employees
and would close down before bargaining with the
Union). The parties thereafter entered into an informal
settlement agreement, under Board auspices, of the unfair
labor practice charge. A notice posting ensued, and the
4 See, for example, Resp Exh. 6 where, in a memo prepared by Maur-
icio, he recites the fact that Ribeiro and Pereira were present in the office
at the time he spoke with Moffitt: see also Resp Exh. 7, where the Com-
pany's clerical employee and bookkeeper Elena Blackmur referred, how-
ever artlessly, to Al Pereira as Garry Moffitt's supervisor; see also Resp.
Exh. 8, where Blackmur notes that certain factors having to do with per-
sonnel status of Moffitt were "reported to Al Pereira," and. finally, see
Resp. Exh. 9, where Ed Ribeiro sets out in his own handwriting a memo-
randum to be placed in Garry Moffitt's personnel file with respect to
Moffitt's attempt to go back to work on January 22.
492
MAURICIO AND SONS, INC.
case was ultimately closed following administrative com-
pliance procedures.
All parties agree that a hiatus in overt union activity
ensued thereafter, beginning sometime in December and
continuing through January and February. The Compa-
ny's witnesses admitted their knowledge of the activities
of both Bishop and Moffitt in the fall of 1978, but insist-
ed that they had no knowledge of what either or any
other employee was doing after December. And, at least
for a portion of that time, the Company's contention ap-
pears plausible, for even the Union's representative ac-
knowledged that overt activity on behalf of the organiza-
tional drive ceased for the months of January and Febru-
ary, though he would have it that this was done at the
behest of employees who had decided to "lay low."
In fact, no petition was filed herein by the Union until
April 26. A stipulation for election resulted on May 14
and an election was conducted on June 7. The Union
lost the election, no objections were filed, and the Board
closed its case on June 15. It should be noted, however,
that by the time the Union filed its petition the prior
unfair labor practice case had been closed by the Board
upon the Company's compliance with the remedy pro-
vided. No request to reopen the case was ever filed. And
the Union did submit a request to proceed with the in-
stant charge which had been filed, as previously noted,
on March 26.5
Garrett Moffitt's work history with the Company
began in 1970. At that time, he worked for the Company
for a relatively short time and ultimately moved on to
other employment in 1971. However, he returned to the
Company in June 1977 as a combination fitter and
welder of steel plating on the bottoms of tuna skiffs. He
worked at the Hicock facility. According to Moffitt, he
suffered a back injury while n the job in May 1978, as
well as another back injury on December 4, 1978. As a
result of each of these accidents, he was off work for a
fairly short period of time and collected workmen's com-
pensation.
The facts most directly pertaining to this case, howev-
er, began on January I1. According to Moffitt, while at
work that day he experienced pain in his back, particu-
larly on the right side. About 2 o'clock in the afternoon,
Pereira asked him what was wrong with him, and even
inquired why he was not smiling and happy-go-lucky.
Moffitt responded that his back hurt and he didn't feel
like being "bugged." With that, Pereira left, intending to
go into the office and phone Mauricio. Several minutes
later Pereira came back and instructed Moffitt to sit
down in a chair, apparently while Pereira waited for
some sort of response from Mauricio. Moffitt sat in the
chair for approximately 30 to 45 minutes. Pereira then
came back out of the office and informed Moffitt that he
was being "sent home," and that he wasn't to return
until he was "a 100 percent," as evidence by a signed
doctor's report. According to Moffitt, Pereira explained
that the Company had a new policy which required that
' While the details remain obscured, it was stipulated that the instant
charge was once dismissed by the Regional Director, that the dismissal
was later reversed upon administrative appeal to the General Counsel.
and that the otherwise seemingly belated complaint herein ensued there-
after.
such clearances be provided. Thus, according to Moffitt,
he went and gathered up his tools 6 and went home.
While he was off work. he consulted with his own per-
sonal doctor as well as two doctors engaged by the
Company or its insurer. He specifically denied returning
to the Hicock yard on one occasion about 2 days after
being sent home, and on another occasion about a week
after being sent home, in futile attempts to return to
work without what the Company deemed adequate
medical clearance; however, he was compelled during
cross-examination to recant his testimony in these, and
other, respects.
Moffitt was notified on March 21 or 22 that his work-
men's compensation benefits were to cease, inasmuch as
a physical examination by a physician engaged by the
Company's insurance carrier determined that he was
then able to return to work. That physician's report, in
evidence as General Counsel's Exhibit 3, notes that no
permanent disability was anticipated.
Accordingly, on the morning of Friday, March 23,
Moffitt presented himself at the Hicock yard to resume
his employment. Evidently he felt that not everything
would go well when he met with Mauricio for he asked
his friend, Ken Bishop, to be his witness when he talked
to Mauricio.7 When Mauricio arrived, Moffitt told him
that he had heard that the Company had been hiring
welders, or was about to hire welders, and that he was
ready to go back to work, in that he had been cleared by
the Company's physician. As they began their conversa-
tion, they walked toward the Company's offices and
went in. They were apparently alone. 8 Once inside the
office, Mauricio told Moffitt that the Company had not
heard from him for a long time, that he had been re-
placed, and that under the circumstances he thought it
was wise for Moffitt to look elsewhere for employment.
Mauricio did go on and inquire if Moffitt had the same
phone number that he used to have and stated that, if
something came up in the future, he would give Moffitt
a call. In sum, the thrust of Mauricio's statements to
Moffitt, if not his explicit statement, was that he had
been under the impression that Moffitt had quit his em-
ployment with the Company and had gone to work else-
where. For Moffitt admitted that he asked Mauricio why
he had been replaced and that Mauricio responded that it
was because the Company had not heard from him in
such a long period of time. And, finally, according to
Mauricio, Mauricio told Moffitt that he ought to at least
consider switching to a lighter form of work in view of
the repeated injuries to his back while lifting steel plates
in the Company's yard. In any event, the conversation
ended with Moffitt having been explicitly told that he
would not be put back to work at that time. And, while
the testimony is not in agreement upon this point, Mauri-
6 Doing so at the instructions of Pereira who had told him that he did
not wish to be responsible for his tools while he was off
I Bishop's testimony made it plain that he attempted to follow Moffitt
into Mauricio's office and eavesdrop on their conversation. However, it
is also plain that he overheard nothing more than the initial sentence or
two, having no significance insofar as the issue of the existence of a dis-
criminatory intent is concerned.
' Notwithstanding Moffitt's efforts to have a witness present. or Mauri-
cio's understanding that Pereira and Ribeiro were within earshot as well
493
DECISIO)NS OF NATIONAL LABOR RELATIONS BOARD
cio indicated that he would hire him in the future when
an opening developed.9
The Company did not hire any more welders until
September. However, long before that time a determina-
tion had been made not to include Moffitt among those
to be considered for rehire. This was occasioned by a
discovery made by Elena Blackmur, the bookkeeper and
secretary for the Company. She appears to have almost
complete control over matters such as insurance claims,
employment records, and medical records of employees.
(Indeed, it developed that Pereira's phone call of January
11 had not reached Mauricio, but had instead been han-
dled by Blackmur. When Pereira called the office for
instructions about what to do with respect to Moffitt's
claims of back pains, Blackmur instructed him to have
Moffitt sit down until she could check with the insur-
ance carrier, and after she had done so, she recontacted
Pereira and had Moffitt sent home until he received
medical clearance to return to work.)
Blackmur was aware of at least a portion of Moffitt's
medical history, since she had caused a warning to be
sent to him as a result of his failure to report an injury to
his back in early December 1978. And, despite Moffitt's
denials that he returned to the yard from the time he left
on January 11 until March 23 when he was denied reem-
ployment, it appears clear that he was mistaken in his
testimony in this regard and that it was through Black-
mur's auspices that Moffitt was told on both January 15
and 22 that he could not return to work until, or unless,
he had medical clearance. In the first instance, she had
received a telephone call from Pereira, again asking for
instructions, and in the latter instance, she had received a
call from Ribeiro also asking for instructions. As a result
of these incidents, where Moffitt tried to return to work
without medical clearance, she talked these matters over
with Mauricio, who confirmed her understanding that
Moffitt was not to be returned without adequate medical
authorization and clearance. The next she heard of Mof-
fitt was on March 22 when she was advised by the Com-
pany's insurance agent that Moffitt's workmen's compen-
sation had been cut off due to his evident recovery. But
by that time she and Mauricio were both under the im-
pression that Moffitt had quit.
However, according to Blackmur, sometime in April
she got wind, through various medical reports she re-
ceived, of Moffitt's true condition, in addition to a vague
recollection of Moffitt she herself had as a result of
having her memory jogged. She then checked around
and learned, through the Company's parent corporation,
that Moffitt had once been denied a job there because his
problems with his back were considered to be severe.
Among the medical records which came into her posses-
sion was the report of a radiologist, dated in 1975, indi-
cating that Moffitt had then shown, through X-rays, a
severe narrowing of the fifth lumbar interspace, indicat-
9 The inference from the General Counsel's evidence that Mauricio
had openings for welders at that time cannot stand in light of the testimo-
nial evidence, supported by a documentary summary, together with the
offer to allow General Counsel to review the books of original entry.
These showed that Mauricio hired four welders in the late February-
early March period to help with the rush to complete two boats prior to
the end of the Company's fiscal year on March 31.
ing spinal disc degeneration. Thus, on April 19, 1979, she
came to discuss with Mauricio the findings resulting
from the medical reports and her inquiries. A determina-
tion was reached by Mauricio not to rehire Moffitt in
light of the new evidence tending to indicate that Moffitt
had a severe back injury or condition which might be
aggravated, or which perhaps had not been adequately
disclosed by him in the past. And, in accordance with
Mauricio's determination, Moffitt's "termination slip" of
March 23 was thereafter altered to show that he was no
longer eligible for rehire.
Thus, the Company's evidence would indicate that
Moffitt was not reinstated on March 23 because there
was no need for his services at that time, and that the
subsequent revision of his status to indicate that he 'was
not eligible for reemployment came only upon the Com-
pany's fortuitous discovery of new information tending
to enlarge the risk, from a medical or liability standpoint,
that Moffitt's medical condition might be laid at the
Company's doorstep at some future time, should he be
rehired. As a consequence, so the Company argues, it
should be determined that Moffitt's job tenure was not
adversely affected by any discriminatory considerations,
but only by sound business considerations.
In the face of the Company's argument, the General
Counsel, besides Moffitt's testimony, presented two addi-
tional witnesses. One, Kenneth E. Bishop, a former em-
ployee and still a friend of Moffitt's, as well as his coacti-
vist in the union movement, testified to a number of con-
versations he had with Pereira, in which Pereira is al-
leged to have asked him repeatedly who was in favor of
the Union, who had signed authorization cards for the
Union, if the Union had had any meetings, etc. Indeed,
Bishop even went further and testified that the back
injury from which Moffitt suffered was sustained as a
direct result of Pereira's having driven a forklift at a
rapid rate of speed, thereby causing a sheet of steel to
slide off of it and hit Moffitt in the back. Conspicuously,
Moffitt made no such claim, and nowhere else has such a
claim been advanced by the General Counsel. According
to Bishop, Pereira confided in him, though Bishop was a
known union adherent and activist, that the Company
would never allow Moffitt to come back to work be-
cause of "all that union crap." Bishop went on to say
that Pereira had continued in this vein by saying that the
Company had ways of keeping a man out and that
Bishop had, himself, better look for another job too.
The other witness presented by the General Counsel
was Frederick W. Nagel, the Union's international orga-
nizer, who worked on the campaign at the Company.
According to Nagel, Ribeiro twice told him of his own
and/or the Company's discriminatory intent toward Mof-
fitt by remarking that Moffitt would never come back to
work at the Company.
'o Significantly, it was Bishop who corroborated a portion of the
Company's testimony and documentary evidence that indicated that Mof-
fitt had indeed made an effort to return to work without medical authori-
zation. For even Bishop remembered that Moffitt came back about a
week after he had been sent home, at which time Bishop overheard Per-
eira tell Moffitt to take his tools home
494
MAURICIO AND SONS, INC.
Thus, it appears that the only direct evidence supplied
by the General Counsel tending to indicate that Moffitt's
inability to secure reemployment was attributable to dis-
criminatory motivations comes as a result of the alleged
statements of Pereira and Ribeiro. However, Pereira is
no longer employed by the Company, though, according
to Bishop, his whereabouts are known and were made
known to the General Counsel before the hearing. Nev-
ertheless no explanation or excuse was offered as to why
the General Counsel failed to produce him to testify to
the scheme of discrimination of which he knew or in
which he might have had a part. There is at least an in-
ference in the record that his parting from the Company
was under less than amiable circumstances, thereby tend-
ing to excuse the Company's failure to produce him.
The Company did, in fact, produce Ribeiro. And Ri-
beiro did credibly deny the statements attributed to him.
Instead, he readily admitted that he had once told Nagel
that the shop would be shut down before letting them
get the Union in. And in one other conversation he ad-
mitted having told Nagel that he hoped that Moffitt
would tell people the truth.''
Conclusions
Moffitt's known activities in support of the Union and
the Company's demonstrable opposition to the Union's
advent would give rise to an inference of illegal motiva-
tion on the part of the Company in its failure to rehire
Moffitt had the Company not come forward with ade-
quate business justification for its failure in this regard.
For it seems reasonable to believe that an experienced
welder and fitter would have been deemed a valuable
employee in the Company's attempt to rush to complete
pending projects within the then current fiscal year. This
is so despite the Company's view of Moffitt as being
something less than a superior employee for, at the least,
he was a known quantity, while those newly hired were
not shown to have performed at a level superior to, or
even equal to, Moffitt's. And, I find the Company's fail-
ure in this regard to be a suspicious circumstance, caus-
ing me to examine its stated business justification excuse
with a great deal of skepticism.
For it does seem something less than fair and reason-
able to use the facts that Moffitt had been off work for a
long period of time, that he had not been heard from,
and/or that he had removed his tools, as part of the basis
not to rehire him. This is so because these reasons each
came into being, at least in part, as a result of instruc-
tions given to Moffitt by agents of the Company. The
fact that it was at the Company's insistence that Moffitt
go and seek medical attention, and not return until fully
I This latter conversation apparently occurred right around the time
that the charge herein was filed. While I have found, based upon the evi-
dence, and contrary to the Company's position, that Ribeiro is a supervi-
sor within the meaning of the Act. I cannot find that he either committed
any violation which is remediable in this case, or that he gave Nagel ei-
dence of a discriminatory motivation In the first instance, it appears that
his remark with respect to the Company's willingness to shut down was a
part of the charge which as earlier remedied by the notice posting re-
ferred to earlier in this Decision And his statement with respect to Mof-
fit telling the truth seems to be permissible (According to Ribeiro, how-
ever, when he spoke of "truth," and linked that matter to NiMoffill, he was
referring to Moffitt's injuries, which had been received on the job )
fit, while clearly meriting no invidious conclusion, is still
a factor to be borne in mind when considering the truth
of the Company's defense. Similarly, it seems clear,
based upon the means of communication the Company
had at hand through Blackmur, that the Company was
not totally without resources had it truly desired infor-
mation with respect to Moffitt's condition and/or where-
abouts. For his medical condition could have been traced
back through the insurance company, the treating physi-
cian, or the examining physician, as appointed by the in-
surance carrier. And such contacts could certainly have
been initiated by the Company, either through the insur-
ance carrier or through the physician's office, by either
mail or telephone. And, it is clear that, regardless of
whether either Blackmur or Mauricio knew of this fact,
it was Pereira who caused Moffitt to remove his tools
from the Company's premises.
Nor can I avoid being unfavorably impressed with re-
spect to the truth of the Company's claim that it had no
opening for Moffitt on March 23, especially since it had
hired others to perform the work he was capable of per-
forming only 2 to 3 weeks before, but without any at-
tempt to check into his readiness to resume work. For it
is an inescapable fact that the Company's initial state-
ment of position to the Board's Regional Office made no
mention of the rush to complete work before the end of
the fiscal year. As a result, it seems only just and fair
that statements of position, even those prepared by attor-
neys, be scrutinized carefully to determine whether they
evidence a shifting defense.
But, having examined the Company's defenses for con-
sistency and reason, it must still be remembered that it is
the General Counsel who bears the burden of proof. For
the matters referred to above, while suspicious circum-
stances, do not, in themselves, warrant a finding of un-
lawful conduct.
Instead, one must ultimately examine the General
Counsel's case in chief. And, here, such an examination
shows the General Counsel's case to be fatally flawed by
the inability of his witnesses to testify credibly.
For example, the alleged discriminatee, Moffitt, gave
the appearance of a man attempting to do his best to
recall and recount truthfully. While I do not fault his
truthfulness, I must find that his testimony was inaccu-
rate in many respects. He became hopelessly confused on
the witness stand while being cross-examined, despite
being given opportunities to explain his answers. His tes-
timony with respect to whether or not he ever attempted
to return to the yard to go to work without proper medi-
cal authorization, or what was said to him on any such
occasion by either Ribeiro or Pereira, seemed to epito-
mize his vague, uncertain, and halting demeanor while
on the witness stand. His inability to recall Mauricio's
statement to him on March 23, that he would be better
off securing some lighter form of work, until he had his
memory refreshed by reference to his affidavit, also de-
tracts from his credibility. And, even when faced with
his affidavit's words concerning Mauricio's explanation
as to why Mauricio thought that Moffitt might be better
off in securing a lighter form of work Moffitt could be
no more certain in responding to a question about
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not Mauricio told him that he did not think
he could handle the job anymore than to respond "He
could have."
The testimony of Bishop concerning statements alleg-
edly made by Pereira to the effect that Moffitt would
never be allowed to work again at Mauricio's because of
his union involvement, and that there were ways which
companies have of keeping a man out, is discredited on
the basis of Bishop's demeanor, his obvious bias against
the Company, as well as what I regard as the inherent
improbability of Bishop testifying accurately about these
conversations when he had not reported them to the
Union's representative at the time when it would have
been plausible for him to have done so. And, finally, he
placed the conversations in mid-March at one point in
his testimony; at another, he placed them in January. 12
And while the Union's representative, Nagel, testified
that Ribeiro told him that Moffitt would not be returning
to work at Mauricio's, I am unable to credit that testimo-
ny in light of his extremely evasive and halting manner
of testifying. His manner of testifying repeatedly required
me to admonish him to state what was said, and what
was done, rather than what he concluded with respect
thereto. While he testified regarding instances in which
Ribeiro is alleged to have told him that Moffitt would
' I am also unfavorably impressed by the General Counsel's failure to
offer the testimony of Pereira to corroborate that of Bishop, or at least to
explain the failure to call Pereira.
not be returning, because the Company did not want
anyone there who had tried to bring the Union in, his
further testimony tending to indicate that he failed to
bring this to the attention of anyone within the Board's
Regional Office seems implausible to me.
In sum, I find that, despite the existence of certain ob-
jective facts which give rise to suspicions about the le-
gality of the Employer's motive in either refusing to
return Garrett Moffitt to his old job on March 23, or in
thereafter determining not to rehire him at any time, the
General Counsel has failed to carry his burden, through
credible proof, that the Company's actions were motivat-
ed in whole or in substantial part by discriminatory con-
siderations. Further, despite the existence of direct evi-
dence of discriminatory motivation, I am unable to con-
clude that any such evidence is credible.
The allegations of the complaint must, therefore, be
dismissed in their entirety.
ORDER' 3
Accordingly, it is hereby ordered that the complaint
herein be, and it hereby is, dismissed in its entirety.
'' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
496