Meat Packers International

National Labor Relations Board - Board Decisions

Jun 12, 1977

230 N.L.R.B. 222 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newton Joseph, d/b/a Meat Packers International
and Nicolas Castro. Case 21-CA-13999
June 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 18, 1976, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge concluded that no
violation of Section 8(a)(3) and/or Section 8(a)(4)
had occurred in Respondent's displacement of
Charging Party Castro. He discounted, primarily on
the basis of his crediting Respondent's witnesses'
account of the events leading to Castro's displace-
ment, the General Counsel's allegation that Castro
was, at least in part, selected for displacement
because of the damaging testimony he furnished in a
recent Board proceeding involving this Respondent.
See Newton Joseph, d/b/a Meat Packers International,
225 NLRB 294 (1976).
Although we have reservations on the internal
consistency of the testimony provided by Respon-
dent's witnesses, all of whom were credited by the
Administrative Law Judge, we find it unnecessary to
disturb his credibility resolutions. For the reasons
stated hereafter, we conclude a violation of Section
8(a)(4) of the Act has occurred here.
On August 6, 1975, Administrative Law Judge
James Rasbury issued his Decision, supra, in which
he found that this Respondent had undertaken a
"diabolical" scheme to defeat a union organizing
campaign, and committed "numerous" and "fla-
grant" violations of the Act. Administrative Law
Judge Rasbury further found that Respondent
Joseph had "fabricated" a version of events in
attempted justification for the unfair labor practices
and that other witnesses had, similarly, "contrived"'
their testimony or "lied" to support him. Charging
Party Castro testified adversely to Respondent in
I E.g., witness Goldberg, credited herein by the Administrative Law
Judge.
230 NLRB No. 13
that case. His testimony was characterized as "honest
and candid," "reflecting a great deal of courage (in
view of Joseph's continuing threats)," and as showing
"remarkable courage and fortitude ... inasmuch as
they [Castro and coworker Frias] are currently
employed and have nothing to gain." The pertinent
net result of Administrative Law Judge Rasbury's
Decision was his recommended Order that Respon-
dent reinstate 12 employees to the jobs from which
they were unlawfully terminated. In view of the
character and number of Respondent's violations, he
further recommended that a bargaining order be
issued against Respondent. With regard to the
reinstatement of the discriminatees, Administrative
Law Judge Rasbury stated that the 12 discriminatori-
ly discharged employees were to be reinstated:
. . . to their former or substantially equivalent
job, displacing, if necessary, employees hired since
the aforementioned employees were wrongfully
discharged. If a job no longer exists, said employ-
ees shall be given such other job or jobs as each
may be qualified to fill. Recognizing that Respon-
dent now operates only one store, it is not the
intent of this Order to compel Respondent to hire
more employees than is economically representa-
tive of good business, but the discriminatees are
to displace any and all current employees whose
date of hire occurred after the hiring date of the
discriminatees named herein. The aforemen-
tioned discriminatorily [discharged employees]
are to be reinstated in the order of their seniority,
or hiring date. If after all economically feasible
reinstatements have been made, there remain
employees included herein as having been wrong-
fully discharged, they shall be placed on a
preferential hire list, in order of seniority, and
shall be offered reinstatement on the occasion of
each vacancy of job opening as it may occur.
[Emphasis supplied.]
The events giving rise to the instant dispute took
place subsequent to issuance of Administrative Law
Judge Rasbury's Decision but prior to the Board's
disposition of Respondent's appeal of it. Upon
receipt of Administrative Law Judge Rasbury's
Decision, Becker, Respondent's labor relations con-
sultant and representative in the earlier proceeding,
held a meeting with Respondent Joseph in which it
was concluded, apparently, that Respondent would
attempt to minimize the potential backpay liability
imposed by the Decision by offering early reinstate-
ment to the discriminatees while, at the same time,
appealing that Decision.
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MEAT PACKERS INTERNATIONAL
What transpired at that meeting is set forth in
greater detail in Administrative Law Judge Holmes'
Decision, but, because of the significance we attach
to certain elements of that meeting and because of
the Administrative Law Judge's failure to address
them, we shall briefly restate some of his pertinent
findings.
At the outset of the meeting, Becker indicated to
Joseph that, although he believed there were grounds
for an appeal of Administrative Law Judge Rasbur-
y's Decision, Respondent would, during the penden-
cy of the appeal, run a continuing backpay liability if
final decision on the case sustained Administrative
Law Judge Rasbury. He therefore recommended
immediate reinstatement of the 12 discriminatees.
Becker further indicated, according to the findings of
the Administrative Law Judge here, that he disagreed
with the recommended Order that the 12 be
reinstated "according to seniority" since Respondent
had not followed seniority in the past. Becker
therefore recommended that the discriminatees be
reinstated without regard to seniority and that the
current employees would have to be discharged to
make room for them. Becker and Respondent went
over a list of employees and Becker concluded that
Respondent could keep all "supervisors and meatcut-
ters" 2 but that all those currently in "countermen"
classifications would have to be terminated to make
room for the discriminatees. Becker suggested, as an
alternative to discharging all the current countermen,
that the discriminatees simply be reinstated without
any displacements, Respondent replying that his
business could not afford that many employees. At
this point, again crediting Becker's account of the
meeting, Respondent specifically asked Becker about
employees Castro, the Charging Party here, and
Frias, 3 each of whom "he [Respondent Joseph] said
Judge Rasbury made a saint out of." Becker replied,
"I don't care whether they are saints or not, if they
are countermen and you have to reinstate 12 8(3)s,
they have to be treated as anybody else . . . you
can't give them preferential treatment." Joseph
eventually indicated that he could not reinstate all 12
immediately and, ultimately, it was decided to phase
in the discriminatees by making individual offers of
reinstatement to them in 10-day intervals.
2 It is not clear how Becker came to this "conclusion." No distinction
between "meatcutters" and "countermen" is found in the previous Decision
and the unit found appropriate in that case included both. We have
assumed, however, since it bears no impact on our decision, that all 12
discriminatees, with the exception of O. Martinez, a cashier, were
"countermen" and that Becker's conclusion related to their ordered
reinstatement to their "former or substantially equivalentjob."
3 See fn. I of the attached Administrative Law Judge's Decision.
4 The notion of "seniority" addressed by Becker and the Administrative
Law Judge has, actually, nothing to do with this particular case.
Administrative Law Judge Rasbury's recommended Order discussed
seniority solely as it related to structuring the class of original discrminatees,
The fourth discriminatee mailed a reinstatement
offer was the first to accept, Salvadore Ortiz. Castro
was selected as the individual to be terminated to
make room for Ortiz. Before proceeding to an
analysis of the Administrative Law Judge's findings
with regard to the particulars of Castro's selection, as
set forth by Respondent's witnesses, several observa-
tions are in order.
We acknowledge that a respondent, in order to
minimize any potential backpay liability, has the
right to reinstate employees found, by either an
Administrative Law Judge or this Board, to have
been terminated in violation of the statute and to do
so without prejudicing any right to appeal the
validity of the findings of violation. But, on the facts
of this case as found by the Administrative Law
Judge, this Respondent not only chose to offer early
reinstatement but, in the process, devised a reinstate-
ment plan which deviated fundamentally from the
particulars of the recommended Order. Castro was,
simply, not one of those employees who coulad, under
the terms of the recommended Order, be displaced to
make room for a discriminatee, absent his prior
termination for just cause. Administrative Law Judge
Rasbury's recommended Order was, as it relates to
those individuals susceptible to displacement,
straightforward, clear, and in keeping with rights so
fundamental under the statute as to need no
discussion. Castro was employed by Respondent at
the time of Respondent's original unfair labor
practices. Moreover, of those employees employed
by Respondent at the time of the offer of reinstate-
ment to Ortiz, he was, with the exception of Frias,
the other "saint" to whom Joseph alluded, the most
senior employee of Respondent. The recommended
Order, quoted above, ordered that the discriminatees
be reinstated to their former jobs with displacement
"if necessary, [of] employees hired since the [discri-
minatees] were wrongfully discharged." Castro was
not "hired since" the wrongful discharge of any
discriminatee.4 Barring Castro's discharge for cause,
a consideration we shall discuss shortly, his displace-
ment in a setting in which he is not only the second
most senior employee in the class of potential
displacees but further a contemporary of the previ-
ously found discriminatory dischargees permits,
of which Castro was, of course, not a member. The recommended Order did
not discuss seniority in an attempt to structure the class of potential
dispiaercs. We further note that Thurston Motor Lines, Inc., 168 NLRB 428
(1967), cited by the Administrative Law Judge, not only is irrelevant to the
issue here but inapposite even if seniority considerations were present. In
Thurston. the displaced employee charging, as Castro does here, unlawful
discrimination, was himself the replacement for the individual found
subsequently to have been unlawfully terminated. Here, Castro was not
hired to fill Ortiz' place. Ortiz and Castro were contemporaries. Thurston
would be applicable only if Respondent, to make room for Ortiz, displaced
the employee who replaced Ortiz even though that employee may have been
senior to others not displaced.
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly, the inference that, in displacing Castro,
Respondent was not simply motivated by a desire to
limit its possible backpay liability. If that were the
case, it could have merely displaced its least senior
employee. (In fact, Respondent admits that most of
the class of potential displacees had minimal experi-
ence.) And, had it done so, it would have eliminated
the obvious possibility that existed in Castro's
selection, that it would be in noncompliance with
Administrative Law Judge Rasbury's recommended
Order. Just as significantly, the displacement of
contemporaries of discriminatees can conflict with
basic rights the statute attempts to vindicate. In, for
example, a situation where a respondent is found to
have discharged unlawfully, let us posit, 25 of 50
union adherents, could the absence of general
seniority rules countenance that respondent's bypass-
ing, for displacement, 25 individuals hired after the
unlawful discharges and displacing, instead, the
remaining 25 union adherents. In such a case, of
course, the inference to be drawn could not be
reasonably challenged. It similarly cannot be chal-
lenged here, in our judgment, given other elements of
the meeting described. Administrative Law Judge
Holmes did not, beyond its recitation, comment on
his finding of fact that Joseph specifically alluded to
the two individuals Administrative Law Judge
Rasbury had, in his Decision, praised for their
courageous testimony, Castro and Frias,5 by men-
tioning that Administrative Law Judge Rasbury had
"made a saint out of them." Interpreting that
characterization of Castro as some indication of
Respondent's desire to grant a "preference" to him,
as Becker in subsequent testimony and the Adminis-
trative Law Judge, through tacitness, would have it,
strains both usage and credulity. Clearly, the charac-
terization was pejorative and, when coupled with
Respondent's total deviation from the simple require-
ments of Administrative Law Judge Rasbury's
recommended Order as it relates to those employees
to be displaced, makes Castro's selection rise beyond
the level of mere suspicion, and warrants the
inference of unlawful motive.
The particulars of the asserted selection process
also do not support the Administrative Law Judge's
ultimate conclusion. We may concede that assess-
ments of a witness' credibility in a subsequent
proceeding are not governed by those made in an
5 Strangely, the Administrative Law Judge alluded to Respondent's
retention of Frias as some indication of Respondent's good intentions here.
Apart from the particular findings made in the earlier decision about his
Respondent and the employees who testified on his behalf, that Frias was
retained could only be conceivably relevant if he was retained in the face of
an existing need to displace another employee. But only Ortiz sought
reinstatement!
6 See fn. I, supra. Respondent Joseph, the charged party, found to have
"lied" in the earlier proceeding, did not testify on his role in Castro's
selection.
earlier one. But the force of logic is not as variable.
Goldberg, credited here, 6 testified to the utilization
of a translator to inform Castro of his displacements
and, yet, could recall vividly that in a conversation
with Castro, where no translator was present, Castro
had told her he had found other employment and
had no desire to return to Respondent - this, in
spite of Castro's complete denial of such a statement
and the filing of the charge herein.
Goldberg did testify that when Ortiz accepted
Respondent's offer of reinstatement she called
Becker to find out which of the current employees
should be displaced. According to her, on two
occasions, Becker asked her whom she "wanted to"
lay off, or terminate. She eventually responded she
did not know, whereupon Becker told her to consult
two of Respondent's supervisors, one of whom was
Knutson. Knutson indicated to Goldberg that he
thought Castro should be let go but first wanted to
discuss the matter with Martinez, the other supervi-
sor. Becker, on the other hand, insisted the decision
to terminate Castro was his,8 based on his "observa-
tions" of Castro, his conversations with Goldberg
and, through her, Knutson and Martinez. Knutson
does not, it is conceded, speak Spanish but based his
testimony about his observation of disagreements
between Martinez and Castro, in his words, on the
"tone of voice" and "gestures" they used.
When the time came for Goldberg to notify Castro
of his displacement, she was told, by Becker, to tell
Castro he was "being terminated because of the
decision of the Administrative Law Judge." That is
to say, without regard to any of the discrepancies
that emerge from the sequence of events leading to
Castro's selection for displacement, as it is set forth
by Respondent's witnesses, at no time was Castro
told by any of Respondent's agents the "reason" now
given us by Respondent for his selection, namely,
that he was the least "satisfactory" and, therefore,
most expendable employee.
In this context, we finally note that Castro was not,
as Respondent perhaps unwittingly concedes, dis-
charged for cause. It is clear, from the testimony of
all of Respondent's agents, that Castro would not
have been displaced had not Ortiz accepted the offer
of reinstatement. Moreover, in defending against the
General Counsel's further contention that Respon-
dent discriminatorily refused to recall Castro once
I Castro was uniformly told by Respondent's agents that his displace-
ment was caused by, pursuant to, or in accordance with Administrative Law
Judge Rasbury's recommended Order. That, as both the recommended
Order's language and we, above, made clear, was simply not the case.
I As indicated earlier, Respondent Joseph did not testify and, as further
indicated, Becker was Respondent's representative at the original heanng.
Martinez, the individual with whom Knutson purportedly conferred, also
did not testify, having been dismissed by Respondent for, assertedly,
larceny.
224
MEAT PACKERS INTERNATIONAL
other openings occurred, Respondent insists it would
have reemployed him had it not already learned,
purportedly from Castro, that he did not wish
reemployment. Lastly, we may properly assume that,
if an employee is discharged for cause, his or her
employer or an agent of it can logically be expected
to tell the employee so.
For all the reasons we have set forth, we conclude
that Castro's selection for displacement can only be
explained as deriving from an evident and transpar-
ent vendetta against him because of the damaging
testimony he supplied against the Respondent in the
previous case and we shall issue an appropriate order
to remedy his unlawful displacements
THE REMEDY
We have found, contrary to the Administrative
Law Judge, that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(4)
and (I) of the Act. It is necessary, in order to
vindicate the rights guaranteed the Charging Party
by the statute, and to effectuate its purposes, that
Respondent be ordered to cease and desist from
engaging in such conduct.
Having found that Respondent unlawfully chose
Castro for displacement because he aided Board
processes by giving testimony against this Respon-
dent in a previous case, we shall order his immediate
reinstatement, with backpay, plus interest, dating
from the date of his unlawful displacement. The
reinstatement shall be to his former job or, if that job
no longer exists, to a substantially equivalent one.
The reinstatement shall be without prejudice to any
seniority or other rights and privileges he previously
enjoyed. If it is necessary to displace another
employee to reinstate Castro, it shall be done, the
individual selected for such displacement being an
individual hired subsequent to Castro's unlawful
displacement. Castro shall be paid a sum of money
equal to that which he would have earned from the
date of his discharge to the date a valid offer of
reinstatement is tendered him, less net earnings
during such period. The rules set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), shall
govern the payment of this sum. We further
conclude, in light of this case and the case out of
which it arises, that it will effectuate the purposes
and policies of the Act to have the notice to
employees posted in both English and Spanish.
9Because our remedy is unaffected by them, we need not reach the other
allegations made by the General Counsel.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of the Act.
2. By basing Nicolas Castro's selection for dis-
placement on the fact that he furnished testimony
against Respondent in a previous Board proceeding,
Respondent engaged in unfair labor practices within
the meaning of Section 8(aX4) and (1) of the Act,
which unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Newton Joseph, d/b/a Meat Packers International,
Pacoima, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Terminating or displacing any of its employees
because they file charges or give testimony under the
Act.
(b) In any other manner interfering with, restrain-
ing, or coercing any employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to vindicate employee rights under Section 7 and to
effectuate the basic purposes of the Act.
(a) Offer Nicolas Castro immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent one,
without prejudice to any seniority or other rights or
privileges he may have enjoyed prior to his unlawful
displacement.
(b) Make Nicolas Castro whole for any loss of pay
suffered by reason of his unlawful displacement by
payment to him of a sum of money equal to that
which he would have earned from the date of his
displacement to the date of a valid offer of
reinstatement being tendered him, the manner of
computation of this sum set forth in the section of
this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security records, timecards,
personnel records and reports, and all other records
necessary to analyze and compute the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Pacoima,
California, copies of the attached notice marked
"Appendix,"' 0 in both English and Spanish. Copies
of said notice, on forms provided by the Regional
'o In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
(Continued)
225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 21, after being duly signed by
Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be
dismissed to the extent it alleges violations of the Act
not specifically found.
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act guarantees to
you the following rights:
To organize for purposes of collective
bargaining among yourselves
To form, join, or help unions
To bargain as a group through a represen-
tative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To not do these things, if you so desire.
WE WILL NOT terminate, displace, or discrimi-
nate against any employees because they testify
against us in National Labor Relations Board
proceedings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the rights
guaranteed to you by the National Labor Rela-
tions Act.
WE WILL offer to Nicolas Castro immediate
and full reinstatement to the job he once had
because it has been found by the Board that he
was terminated because of the testimony he gave
against us in a previous case before the Board
involving us.
WE WILL pay Nicolas Castro any wages he may
have lost on account of our action, the amount,
which will include interest, to be determined
according to a formula the Board, in its Decision,
has given us.
NEWTON JOSEPH, D/B/A
MEAT PACKERS INTERNATIONAL
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The
charge in this case was filed on September 22, 1975, by
Nicolas Castro, an individual. The complaint was issued on
November 21, 1975, on behalf of the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Regional Director for Region 21. The
complaint alleges that Newton Joseph, d/b/a Meat
Packers International, herein called Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(aX1), (3), and (4) of the National Labor
Relations Act, as amended, herein called the Act. Respon-
dent filed an answer to the complaint and denied the
commission of the alleged unfair labor practices.
The hearing was held before me on February 4, 1976, at
Los Angeles, California. Briefs were filed by the General
Counsel and by Respondent and have been duly consid-
ered.
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a sole proprietorship and is engaged in the
retail sale of meats at its retail store located at 10435 Laurel
Canyon in Pacoima, California. In the course and conduct
of his business operations, Respondent annually derives
gross revenue in excess of $500,000 and annually purchases
and receives goods, products, and materials valued in
excess of $50,000 from suppliers located outside the State
of California.
Upon these admitted facts, I find that Respondent has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II1. THE LABOR ORGANIZATION INVOLVED
It is admitted that Meat Cutters Local No. 421,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, herein called the Union, is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are:
Whether Respondent discharged Nicolas Castro and
failed to reinstate him because of his earlier union activity,
and/or because he had previously given testimony in a
226
MEAT PACKERS INTERNATIONAL
prior Board proceeding, and thereby violated Section
8(a)(X), (3), and (4) of the Act.
B. Background
An earlier proceeding involving this same Respondent is
presently pending before the Board for a decision. The
Decision of Administrative Law Judge James T. Rasbury
issued on August 6, 1975. [Newton Joseph, d/b/a Meat
Packers International, 225 NLRB 294 (1976).]
The hearing in that proceeding was held between April 1,
1975, and April 22, 1975. The Charging Party and alleged
discriminatee in this case testified at that earlier hearing.
Ten pages from the transcript of the prior case were
received in evidence in this proceeding to show the
contents of Nicolas Castro's testimony in view of the
8(aX4) allegation in the complaint.
Counsel for the General Counsel offered a copy of the
Administrative Law Judge's Decision in evidence. It was
rejected and placed in the rejected exhibit file. The reason
for doing so was that the Board may take judicial notice of
its own proceedings. Plant City Welding and Tank Compa-
ny, 123 NLRB 1146 (1959); West Point Manufacturing
Company, Wellington Mill Division, 142 NLRB 1161 (1963);
Seine and Line Fisherman's Union of San Pedro, affiliated
with Seafarers' International Union, AFL-CIO, 136 NLRB
I (1962); Airlines Parking, Inc., 197 NLRB 762 (1972).
The Board has also rejected the implication that a
finding by the Board in one proceeding may not be used in
a subsequent proceeding involving the same employer. The
Board said, "although we agree with the Trial Examiner
that the Board decision with respect to Marfia's discharge
is not relevant to this case, we reject his implication that a
Board finding in one proceeding may not be used as a basis
for a finding in a later proceeding involving the same
employer." National Electric Products Corporation, 87
NLRB 1536 (1949).
Accordingly, judicial notice was taken of that earlier
proceeding which is before the Board at this time for
decision.
The recommended Order contained in the Decision of
Administrative Law Judge Rasbury required Respondent,
inter alia, to offer reinstatement to 12 employees whom the
Administrative Law Judge had found to have been
discriminatorily discharged. Among those 12 employees
was Salvadore Ortiz. It is Respondent's contention that the
Charging Party in the present case, Nicolas Castro, was
terminated in order to create an opening whereby Respon-
dent could reinstate Salvadore Ortiz in accordance with the
recommended Order of Administrative Law Judge Ras-
bury in the prior case.
C. Respondent's Discussion of the Prior Decision
Henry Becker, the labor relations consultant to Respon-
dent, met with Newton Joseph to discuss the Administra-
tive Law Judge's Decision. Also present at the meeting,
which took place in mid-August 1975, were David S.
Bradshaw, Respondent's attorney, and Carmela Goldberg,
bookkeeper and supervisor. Keith Knutson, general man-
ager, was present part of the time.
Becker explained his opinion to Newton as to why he felt
that the conclusions reached in the Administrative Law
Judge's Decision were in error and he indicated his view
that an appeal should be filed to the Board in Washington,
D.C. However, Becker said that the decision, if sustained,
meant that Joseph had to reinstate 12 employees, and that
if Joseph did not do so, he was running a continuing
liability for backpay until such time as a final decision was
handed down by the National Labor Relations Board or
the courts. Becker recommended to Joseph that he
reinstate the 12 employees to their former jobs or
equivalent jobs as required by the Administrative Law
Judge's Decision. Joseph replied that he could not put all
12 employees back to work.
Becker continued with a further explanation that if the
Board in Washington, D.C., found that there was no
violation of the Act as to any of the discharged employees,
then that employee would not be entitled to any backpay.
However, he said that, if the Board found in accordance
with the Decision of the Administrative Law Judge, then
the employees would be entitled to backpay from the time
they were fired until such time as they were reinstated.
Next at the meeting, they computed what the approximate
amount of backpay liability would be.
Joseph inquired as to how long it would take for the
Board to issue a decision in the case and Becker estimated
that it would be from 3 to 6 months to more than a year
after the exceptions were filed in Washington. Joseph
indicated that exceptions should be filed.
The discussion then returned to the matter of reinstate-
ment of the 12 employees. Becker told Joseph that he felt
that the Company did not have to reinstate the employees
according t6 seniority because the Company had not
followed seniority in the past. For that reason Becker
explained his disagreement with the recommended Order
of the Administrative Law Judge's decision to follow
seniority. Becker recommended that the employees be
reinstated without regard to their seniority. Becker said
that the Company would have to discharge the present
employees who were occupying the same or equivalent jobs
in order to make openings to reinstate the 12 employees.
During the course of the meeting, Joseph obtained a list
of the employees who were then employed at the Compa-
ny. After reviewing that list, Becker concluded that the
employees at that time were either working in the
meatcutter job classification or the counterman job
classification. Becker said that the Company would be able
to keep the supervisors and the meatcutters, but that all
employees in the counterman job classification would have
to be relieved from their jobs in order to make places for
the 12 countermen. Becker explained that the only
alternative to terminating all the countermen would be to
retain the present employees at work in addition to the 12
employees to be reinstated. Joseph said that he could not
do that because the business could only afford a certain
work force. Joseph said that he would have to terminate the
employees presently working there.
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph then asked Becker specifically about Nicolas
Castro and Saul Frias who Joseph asserted had been made
"saints" in the earlier decision.' Becker responded that he
did not care whether they were "saints" or not; if they were
countermen and the Company had to reinstate the 12
discharged employees, then they would have to be treated
just as anybody else would be. Becker said that he told
Joseph: "If the time comes when somebody comes for
reinstatement, and you have to lay somebody off, they
have to be treated like everybody else, you can't give them
preferential treatment."
Joseph said that he did not have 12 counterman jobs to
fill. Becker told him that he would have to fill the number
of counterman jobs that the Company had and then place
the others who asked for reinstatement on a preferential
hiring list. Joseph then expressed concern about reinstating
all 12 employees at one time. He explained that some of the
employees had worked for him for perhaps a week or 10
days and that they had never worked in the Pacoima store,
but instead had worked in the Los Angeles store.2 Joseph
said that it would ruin his business if he placed all 12
employees or even 8 employees back to work in the
Pacoima store all at once. Joseph said that he wanted to
reinstate them one at a time and have an orderly influx of
the 12 employees back into his work force, so that he could
train them and prepare them for their job function in the
Pacoima store. Becker said if that was the situation, then
the Company could bring them back one at a time, but the
Company would suffer because of the backpay liability
which would continue until reinstatement, if in the final
analysis Joseph was found to have wrongfully discharged
them. However, Becker said that one aspect had to be
weighed against another. Becker suggested that the
employees be reinstated in I0-day intervals which would
afford the Company an opportunity to train the employees
to see how they could best be utilized.
At the meeting Joseph said that he had no alternative to
reinstating the 12 employees because the backpay liability
would be such that it would put him out of business.
Becker suggested that the procedure be followed whereby
each of the 12 employees named in the Decision would be
sent a registered letter offering each one unconditional
reinstatement and provide a time period in which he should
come to the store and apply. Joseph requested Becker to
prepare the letters and mail them for him. It was also
decided to leave the decision to Becker as to the order in
which the reinstatement letters would be mailed.
I Saul Frias was called as a witness by counsel for the General Counsel in
the prior case and testified at the hearing. At the time of the hearing in the
present case on February 4, 1976, Frias was still employed as a counterman
by Respondent.
2 It was stipulated that prior to February 1975 Joseph had operated two
stores - one in the city of Commerce and one in Pacoima. The store in the
city of Commerce, which was usually referred to as the Los Angeles store,
was sold in February 1975 and since that time Joseph has operated only the
Pacoima store.
3 The foregoing statement of facts in this section is based upon the
uncontradicted testimony of Henry Becker. While I am cognizant of the fact
that Becker is Respondent's labor relations consultant and represented
Respondent in the earlier case, I find no basis for questioning his veracity. I
have credited his testimony throughout this proceeding.
I also find credible the testimony given by Ms. Goldberg, Knutson, and
Joseph Yglesiao. In the sections which follow, I have based the statement of
Ms. Goldberg was designated as the one who would
handle the reinstatement of the 12 employees. Becker
outlined the procedure which she would follow. He said
that when the employee came to the store, she would set a
date for him to commence work and to reinstate him.
Becker said at that time he would have to decide who
would be let go because he did not want to exceed a certain
number of jobs. He said when any employee came in for
reinstatement, they would reinstate that employee and let
go one of the countermen. 3
The following form letter was sent to the 12 employees
named in the earlier decision:
You are hereby offered immediate and uncondition-
al reinstatement to your former or substantially
equivalent job position with Meat Packers Internation-
al. If you wish to accept this offer, you must report to
work at Meat Packers International, at the above
address in Pacoima, no later than ----- 1975.
MEAT PACKERS INTERNATIONAL
NEWTON JOSEPH
The letter was mailed out to the employees in the
following order with the date to be reinstated to work
shown in the letter: 4 Luis Martinez, September 2, 1975;
Francisco Martinez, September 5, 1975; Isaac Gonzales,
September 14, 1975; Salvadore Ortiz, September 20, 1975;
Augustine Silva, September 26, 1975; Antonio Mercado
Vasquez, October 9, 1975; Manuel Flores, October 16,
1975; Alfredo Mendosa, October 26, 1975; Mario Gonza-
lez, October 26, 1975; Manuel Reyes, November 7, 1975;
Jesse Morgan, November 7, 1975; Olga Martinez, Novem-
ber 10, 1975.
As shown above, Salvadore Ortiz was the fourth of the 12
employees named in the Decision to be sent a letter. The
letter to Ortiz was dated September 9, 1975, and indicated
that, if he wished to accept the offer of reinstatement, he
must report to work no later than September 20, 1975.
D. The Discharge of Castro
Salvadore Ortiz responded to the letter which he received
from Respondent. He went to the Company with an
facts upon their credited testimony. As will be seen, there are some conflicts
between the testimony which was given by them and that given by Castro. I
am not unmindful of the credibility resolutions made by the Administrative
Law Judge in the prior proceeding. Nevertheless, Castro's demeanor in this
later proceeding, where he was testifying under different circumstances
concerning his own discharge, did not persuade me that the versions which
he gave of the conversations were true. I found the other four witnesses to be
more reliable and accurate. (For comments by a Trial Examiner on the
credibility of a witness who had appeared before him in two separate
hearings, see Universal Packaging Corporation, 149 NLRB 262, 270 (1964).)
4 It should be noted that no ruling or finding is being made herein with
regard to the adequacy of the reinstatement letters or any other matter
related to compliance with the recommended Order of the Administrative
Law Judge in the prior proceeding. Complaince matters involving the prior
case are properly not an issue here and no finding, express or implied, is
being made herein concerning any compliance matter.
228
MEAT PACKERS INTERNATIONAL
interpreter and gave his reinstatement letter to Ms.
Goldberg. 5 He indicated to her that he wanted to be
reemployed with the Company. She suggested that he fill
out a W-4 form, and he replied that he did not have his
social security number with him. She suggested that he go
home and bring back the number with him; then he could
fill out the form and she would set the date for him to
return to work.
Ms. Goldberg next telephoned Henry Becker for
advice. She informed Becker that Ortiz had applied for
reinstatement and that she had scheduled him to return to
work on Monday. She wanted to know whom she should
lay off or terminate. Becker asked her whom she wanted to
terminate and she replied that that was why she was calling
Becker because she did not want anything to go wrong. She
said that they had had enough trouble with the Board and
she wanted to get the correct advice. Since Becker was
supposed to consult and advise on these matters, she said
that she was calling him and asking him what to do. Becker
asked her whom she wanted to lay off and she responded
that she did not know. Becker then suggested that she talk
with Keith Knutson, general manager, and Manuel
Martinez, manager and head meatcutter. Becker said to
find out the most expendable among the present counter-
men who could be laid off from work.
Knutson testified that Ms. Goldberg informed him on
Friday, September 19, 1975, that Ortiz was coming back to
work and that he would have to replace somebody. She
asked him for his opinion. Knutson told her it should be
Nicolas Castro, but he also said he wanted to talk with
Manuel Martinez. Knutson said that he talked with
Martinez and reported to Ms. Goldberg that Martinez'
feeling was the same as Knutson's feeling, that it should be
Nicolas Castro.6 Knutson told Ms. Goldberg that there was
a personality problem and a lot of friction between the two
men which was disrupting the proceedings in the store.
On earlier occasions Knutson testified that he had
witnessed personality clashes between Martinez and
Castro. Although Knutson does not understand the
Spanish language, he based his opinion on the manner of
speaking, tone of voice, gestures used, and a comparison
with the way in which Martinez gave directions to other
employees. Knutson said that Martinez had previously
requested permission to fire Castro on four occasions
because Castro was undermining his authority, he did not
get along with him, and Castro was not doing as Martinez
directed. Knutson recalled an incident which occurred
about a month before Castro's dismissal. Knutson saw
Castro smoking a cigarette in the cutting room, which was
forbidden, and Knutson heard Martinez yell at Castro.
Knutson told Martinez to give Castro a reprimand. On
another occasion Knutson said he observed Martinez
"getting after" Castro for not rotating the merchandise
I Becker, Ms. Goldberg, and Knutson placed this event on Friday,
September 19, 1975. The handwritten notation made by Ms. Goldberg on
the reinstatement letter and on a note which she gave to Ortiz indicates
September 18, 1975. Since the witnesses recalled that this occurred on a
Friday, I have concluded that September 19, 1975, is the accurate date.
s It is recognized that the references to statements allegedly made by
Martinez throughout this proceeding are hearsay statements and they were
properly. Knutson said that Martinez complained to him
several times about Castro not doing this.
Castro gave a different version of his working relation-
ship with Martinez. Castro said that they were good friends
and got along well. Castro said that there was no hostility
and that he was never reprimanded by Martinez and that
they always had friendly conversations. He denied that he
ever had any argument with Martinez over arranging the
meat and he denied smoking in front of the meat case.
Castro said that he did smoke, but that he did so on his
lunch hour in the kitchen.
Following the conversation between Ms. Goldberg and
Knutson, she once again telephoned Becker. Becker
testified that she told him that she had talked with Knutson
and Martinez and both of them were of the opinion that
Castro should be terminated. Becker stated that she said
that Martinez had a problem with Castro in that Castro
would not follow orders; that there was a personality
problem for Martinez; that Castro was difficult to get
along with; and that Knutson agreed that Castro was the
one to go. Becker responded that, if both Knutson and
Martinez said that Castro was the one who should go, then
she should terminate Castro and let Salvadore Ortiz take
his place. Ms. Goldberg inquired how she was to do this.
Becker instructed her to give Castro his check and have a
witness present to what was said. She asked if that was all
she had to do. Becker told her to tell Castro why he was
being terminated; that he was being terminated because of
the Decision of the Administrative Law Judge which
required the Company to reinstate 12 employees; and that
Salvadore Ortiz was applying for reinstatement, so Castro
was being terminated to make room for Ortiz.
After the second conversation between Becker and Ms.
Goldberg, Ortiz returned to the Company. At that time Ms.
Goldberg informed him that he should report for work on
Monday, September 22, 1975. Ortiz asked for this in
writing so that he could show it to "the union delegate to
make sure he was reinstated." Ms. Goldberg prepared an
informal slip of paper with the information on it and gave a
copy to Ortiz.
On Sunday, September 21, 1975, Ms. Goldberg again
telephoned Becker. This time she called him at his home.
She told Becker that she was getting ready to tell Castro
that he was being terminated. Becker asked what she was
going to say. She replied that she was going to tell Castro
that he was being terminated because Salvadore Ortiz was
being reinstated; that the Company had to terminate one
employee, and that Castro was the one being terminated to
make room for Ortiz in accordance with the Decision of
the Administrative Law Judge. Ms. Goldberg said that she
had called Becker to make sure that everything was all
right and to ask if she was to go ahead and do it. Becker
admitted not for the truth of what was said. Martinez did not testify. He was
discharged by Respondent after he failed to appear for work and his
whereabouts at the time of the hearing were unknown. In these circumstanc-
es where the witness' whereabouts were unknown and he was not available
to testify, the hearsay statements were admitted for a limited purpose.
However, in reaching the ultimate conclusions in this case, the hearsay
statements have not been considered.
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that it was exactly right and to go ahead and terminate
Castro.7
Becker emphasized in his testimony that he was the one
who made the decision to terminate Castro. Becker said
that he relied upon the conversations he had with Ms.
Goldberg, after asking her to talk with Knutson and
Martinez, and her report that Castro was the most
expendable employee. In addition, Becker said that he had
previously discussed Castro's job performance with Joseph,
Ms. Goldberg, and Knutson on earlier occasions. Becker
explained that he had frequently visited the store beginning
in March 1975. At that time he was preparing for the
hearing in the prior case and he estimated that he was
spending 3 or 4 days a week at the store. Then during the
hearing, which he said lasted 11 days, he visited the store
two or three times. Subsequently, he continued to visit the
store as many as six times a month. Becker said that he had
observed Castro lounging around the counter on a couple
of occasions. Becker recalled discussions with management
that Castro was reluctant to perform his job duties and that
he was constantly having personality clashes with Marti-
nez. It appeared to Becker that Castro was trying to
provoke Martinez into some type of action. Becker said
that he advised Joseph of this and told him to avoid taking
any action against Castro. Becker also related that he was
told that Castro was having trouble maintaining the
machines in repair, so management reassigned the work to
Andrew Wu.8 Becker said that, after the reassignment to
Wu, they experienced no more trouble with the machines.
Becker said that Castro's difficulty with keeping the
machines repaired took place after the issuance of the
Decision of the Administrative Law Judge.
Joseph Yglesiao, an insurance agent for the Prudential
Insurance Company, performed interpreting work for
Respondent on five or six occasions. He said that he was
not paid for the work, but did so as a courtesy to Joseph
because Yglesiao was his insurance agent.9 He is fluent in
both the English and Spanish languages.
On Sunday afternoon, September 21, 1975, after Ms.
Goldberg spoke with Becker once again, she telephoned
Yglesiao and explained that letters had been sent out by
the Company and that an employee had returned to be
reinstated. She asked him to interpret what was occurring
to Castro. She asked that he come down to the Company
for this purpose, but he said that he was unable to do so
because various members of his family were ill on that
particular day, so they decided to handle the situation by
telephone.
r Becker said that he believed at that point in time that all of the
countermen would have to be terminated to make room for the 12
employees. Becker explained that the Company only had 8 counterman jobs
and he felt that the 12 employees would want to return. He based this
opinion on an incident which he briefly described as occurring before
Castro's termination. Becker testified that the union business agent had
come to the store with the 12 employees in a group and "tried to push them
behind the counter and force them in on Newton."
s Castro did not specifically deny this accusation in his rebuttal
testimony. He did assert that Wu did not know where items were in the
freezer and that Castro taught Wu how to cut veal steaks.
9 Yglesiao was an impressive witness whose demeanor on the witness
stand gave reassurance that he was testifying truthfully in this case. While I
recognize the fact that he is Joseph's insurance agent, Yglesiao did not give
the appearance of a person who would change his testimony just to curry
Later that afternoon Yglesiao received another telephone
call from Ms. Goldberg who said that Castro was on the
line.10 Yglesiao spoke to Castro in Spanish and said that he
told Castro that there had been a court decision whereby
the Company had to reinstate certain employees; that
letters had been mailed out to these employees; that one
had answered the letter and had appeared and wished to be
reinstated; and that person was going to, in effect, take
Castro's place. He said that he explained who the employee
was and also told Castro that he was to be given a check.
Yglesiao asked Castro if he had any questions or did he
have anything to say that Yglesiao might, in turn, interpret
for him. Castro said no. Yglesiao again asked Castro if he
had any questions and if he understood what was
occurring. Castro replied yes, that he understood and that
everything was fine. Yglesiao said that Castro made no
protest and that his response was unemotional. Both
people spoke in Spanish during the conversation.
Castro gave a different version of this event. He testified
that he was called into the office that Sunday afternoon
about 6:40 p.m. by Ms. Goldberg who told him that there
was a telephone call for Castro and that it was in Spanish,
which Ms. Goldberg did not understand, so she wanted
Castro to translate. Castro testified that someone on the
telephone asked if this was Nicolas Castro and he replied
yes. He said that the person told him that he was somebody
from the Department of Employment." Castro said that
the person told him, "[A]s you well know, the boss, the
owner, is being forced to just hire people that are unionized
- from the Union." Castro continued, "I was informed
that I was going to be substituted by this Salvadore Ortiz
because he did belong to the union and so I said, all right."
Castro testified that he resumed working after that
telephone conversation. He said that about 6:45 p.m. Ms.
Goldberg asked him if he wanted to go home and Castro
said no because he had not finished his work. He stated
that about 10 minutes later Knutson told him to leave, but
Castro said no, that he was not through working, so he
continued to work. After he finished work and punched out
his timecard, Castro said he was offered a check by Ms.
Goldberg. He asked her why he was being laid off because
there were other workers that had been working there a less
amount of time than Castro and the others did not know
how to perform the work as well as Castro did. Castro
testified, "She says, it is not my fault, you signed the union
card, and that is not my doing, it is somebody else's, the
man told me." 12 Castro said that he told her that he did
not want his paycheck and that he would have to speak to
his attorney first. He then left.
favor with a business client. In my opinion. Yglesiao testified truthfully and
I have credited his testimony completely.
s0 Yglesiao identified himself to Castro during this conversation. He said
that he had spoken with Castro on two earlier occasions concerning
insurance plans and had introduced himself to Castro at those times as an
agent of the Prudential Insurance Company.
i" Yglesiao specifically denied having said this to Castro and affirmative-
ly testified that he identified himself to Castro in the Spanish language. I
credit Yglesiao.
12 Ms. Goldberg specifically denied this testimony by Castro and
affirmatively testified that there was no mention of the Union at all. She said
Castro said that he did not want his check. She told him that he could go
home at that time and be paid for the full time, but Castro would not do so.
She said that they talked in both English and Spanish just as they usually
did to communicate. I credit the account given by Ms. Goldberg.
230
MEAT PACKERS INTERNATIONAL
E. Events Subsequent to the Discharge of Castro
On Wednesday, September 24, 1975, following his
termination, Castro returned to the company office and
spoke with Ms. Goldberg. She said that it was a friendly
conversation in which she gave him his paycheck and
Castro said that the reason that he did not take his check
on Sunday was that he was going to consult with
somebody, but he had changed his mind and decided to
pick up his check. She said that was fine.
Castro's account of this conversation is different from
that given by Ms. Goldberg. Castro testified that she asked
him if he came to pick up his check; to sign a card which he
did, and she gave him his check. Castro continued, "When
I got my check, she said, it is not my fault; it is not Keith's
fault; it is not his fault either; that is because you signed
the union card; that is what she said." Castro said that he
took his check and went home. He said that they spoke in
the Spanish language.'3
Subsequent to the discharge of Castro, no new employees
were hired by the Company until late November 1975. The
last date on which I of the 12 employees involved in the
prior case was to be reinstated was November 10, 1975. As
it turned out, only Salvadore Ortiz out of the 12 employees
actually applied for reinstatement according to Ms.
Goldberg. Some others had inquired, apparently, but had
not followed up. Thus, Ortiz was the only one of the group
of 12 employees who was reinstated by Respondent. Castro
was the only employee who was terminated in order to
create an opening for I of the 12 employees.
By late November, Martinez, the manager and head
meatcutter, had been fired, and Elias Munoz, a cashier and
counterman, had left. Ms. Goldberg explained that the
reason that Castro was not offered reemployment at that
time was because Castro told her in November 1975 that he
was working elsewhere and did not want to come back to
work for Respondent. She said the conversation arose
because of a check which she had for him for back wages
determined by the Wage and Hour Division.
Ms. Goldberg said that she had mailed the Wage and
Hour check to Castro, but that it had been returned to the
Company. Subsequently, a friend told Castro about the
check and Castro came to the Company in November
1975. Ms. Goldberg said that she just inquired about his
health and asked if Castro was working. Castro replied that
he had been working. She said that she explained mailing
the check to him and its return to the Company. She
showed him the letter and it appeared that the address was
wrong.
During that conversation, Ms. Goldberg said that she
discussed employment with Castro. She said that she did
not know how to say the phrase "preferential hiring list" in
the Spanish language, but that they did talk about his being
employed and Castro said that he was working. She
13 I credit the version given by Ms. Goldberg.
14 As previously indicated, I credit the testimony of Ms. Goldberg.
'5 Arturo Lara was hired by the Company on August 8, 1975. Ms.
Goldberg said that Lara replaced a friend of his named Carlos Arena who
had quit after being refused a loan by the Company. Ms. Goldberg's
testimony reveals that she was uncertain as to when Arena left the
employment of the Company, but she believed that it took place after the
testified, "And I asked him if he would like to work for us
again and he said no. I asked him about the letters coming
back and he said no, he didn't want to work for us." She
also related that Castro mentioned that he was going on a
vacation somewhere in Mexico.
Castro testified that he went to the Company in
November 1975 to pick up a check and spoke with Ms.
Goldberg. He said that she told him that she had already
mailed the check to him, but it had the wrong address, so
the letter came back to the Company. Castro testified that
Ms. Goldberg handed the check to him and asked if Castro
was employed someplace else. Castro said that he told her
that he was, but he said that she did not tell him that he
was on any type of list to return to work or that she offered
him his job back at that time. Castro did not specifically
deny telling Ms. Goldberg that he did not want to work for
the Company, but he was asked to testify to everything that
was said during that conversation and he did not mention
that subject. 14
F. Employees Retained in Preference to Castro
Castro contended that he could perform jobs which the
other employees could not do. He said that Elias Munoz
did not know where the freezer items were located and
could not cut veal steaks. He said that he had to tell Munoz
where to put the meat in the cases because Munoz did not
know how to do that job. With regard to Arturo Perez
Lara, Castro said that Lara also did not know where the
freezer items were located and that each time that Lara was
asked to do that, he had to ask Castro or Saul Frias. Castro
also said that Andrew Yu lai Wu, Carlos Ortiz, and
Nicolas Torres also did not know where the freezer items
were kept and had to ask. He also mentioned that Carlos
Ortiz could not cut veal steaks, and that Castro had taught
Lara and Wu how to cut veal steaks.
In performing his own duties while at the Company,
Castro said that he put meats in the freezers, cut veal cutlet
steaks, helped people, swept, did maintenance work,
cleaned, and other things.
Ms. Goldberg gave a different description of the job
performance of the employees. She testified that Elias
Munoz primarily worked as a cashier at the store, but on
occasion he would stock groceries and fill in for other
employees who were off from work. She said that she had
seen him on occasion working in the freezer. She added
that Munoz was bilingual and therefore did some interpret-
ing for her. She stated that she had observed Munoz
cutting veal steaks and that Martinez was the one directing
Munoz on how to put meat in the counter case.
With respect to Arturo Lara, Ms. Goldberg said that he
was a counterman who worked in all the departments
except for working as a cashier. She pointed out that he
was also bilingual and assisted with interpreting.' 5 With
regard to Andrew Wu, she said that he did the mainte-
issuance of the Administrative Law Judge's Decision which issued on
August 6, 1975. At another point she said that she had posted the notice
attached to that Decision. The notice was introduced in evidence. She said
that the reason for her refusal to lend Arena the money was because she felt
that he might have to be laid off in 2 weeks. In any event, Arena's job as a
counterman was filled by Lara on August 8. 1975, which preceded the
(Continued)
231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance work on the machines which slice meat and grind
meat. She said he also waited on customers and stocked
and cut meats. With respect to Carlos Ortiz, she said he
was a counterman and worked in the freezer and on the
machines. She said that Saul Frias was a counterman;
Riccardo Salatino was a combination counterman and
cashier; and that Nicolas Torres was a boxboy. Torres
worked a split shift. Knutson testified that Torres was a
student who bagged groceries and cleaned up the store.
Ms. Goldberg testified that Castro had never worked as a
cashier for the Company.16
Castro worked for the Company for about 10 months.
He had been at the Company longer than some other
employees. The undisputed testimony in this proceeding,
however, is that the Company had not in the past followed
seniority in making layoffs. A list showing the entire
complement of the Pacoima store as of September 21, 1975,
was introduced in evidence at the hearing. It shows the
date of hire and the job classifications with footnote
explanations. The exhibit, "Employees of Meatpackers
International as of September 21, 1975," with the name,
date of hire (if given), and job classification of each
employee, reads as follows:
Newton Joseph, owner; Carmela Goldberg, Novem-
ber 3, 1974, bookkeeper and supervisor; 2 Keith
Knutson, February 5, 1975, general manager; Manuel
Martinez Monzon, January 23, 1975,1 manager and
head cutter;3 Luis A. Ortiz, March 22, 1975, cutter;
Alfredo Alcantar Hernandez, May 2, 1975, cutter and
sausage maker; Elias Aguirre Munoz, February l1,
1975, cashier; 4 Arturo Perez Lara, August 8, 1975,
counterman; 5 Andrew Yu lai Wu, May 27, 1975,
counterman and machinery maintenance man; Carlos
Ortiz, July 14, 1975, counterman; Nicolas Castro,
November 15, 1974, counterman; Gustabo F. Frias
(Saul), November 6, 1974, counterman and freezerman;
Riccardo Salatino, June 16, 1975, cashier and counter-
man; Nikolas Torres, October 1974, boxboy.
I Started in Los Angeles store in approximately December, 1974.
2 Handled office and personnel matters.
3 Supervised cutters and countermen in conjunction with general
manager.
4 Also acted as counterman on occasion and ordered and stocked
grocery products; acted as interpreter among management and
employees.
5 Also acted as interpreter.
Since September 21, 1975, Salvadore Ortiz has performed
the counterman's job which was previously performed by
Castro.
G. Analysis and Conclusion
Based on the foregoing credited testimony, I find that
Respondent's desire to minimize its potential backpay
liability to the 12 employees in the prior case was the
Company's discussion with Becker in mid-August as to the effect of the
remedy and recommended Order of the Administrative Law Judge.
With respect to Lara, Knutson testified that Lara's work was satisfactory.
16 I have credited Ms. Goldberg's testimony with regard to other matters
in this proceeding, and I also find her testimony here with respect to the job
performance of other employees to be credible. While Ms. Goldberg
primarily worked in the office at the store, the small size of the employee
motivating factor which eventually led to the termination
of Castro. Although Respondent disagreed with the
recommended Order in the prior Decision, the potential
financial liability was such that Respondent deemed it
necessary to limit that liability by offering reinstatement to
the 12 employees while at the same time appealing the
Decision to the Board. Thus, the decision to attempt to
limit its monetary reimbursement to the 12 employees set
in motion a series of events which resulted in Castro's
discharge.
The next event was the mailing of the letters from
Respondent one at a time to the employees. The first three
employees apparently did not respond, but the fourth one,
Salvadore Ortiz, did respond and requested reinstate-
ment.17 That action by Ortiz caused Respondent to look
for an employee in the counterman job classification to lay
off from work in order to create an opening for Ortiz. The
small size of Respondent's business and having only eight
employees in that job classification narrowed the area of
consideration. Respondent selected Castro.
Although Castro had worked for Respondent only about
10 months, counsel for the General Counsel correctly
points out in his brief that Castro did possess more
seniority than some other employees. However, the
undisputed testimony in this proceeding is that Respon-
dent had never followed seniority in the past. Thus, the
present case is distinguishable from the Board's decision in
Tennessee Packers, Inc., Frosty Morn Division, 158 NLRB
1192 (1966), which counsel for the General Counsel cites in
his brief. In that case, it was found that the company had
utilized a court-enforced Board reinstatement order to
retaliate against an employee. In Tennessee Packers, two
employees were told that they were being laid off in order
for the company to reinstate others pursuant to a court
decree enforcing a prior Board reinstatement order.
However, in that case the company departed from its past
practice. The two employees knew that they possessed
greater plantwide seniority than the employees who were
being reinstated and also that they possessed greater
plantwide seniority than some other employees who were
retained. Normally, if the company had followed its past
practice, the two employees would have enjoyed superior
retention rights, but the company in that case departed
from its prior practice. Also considered in the Tennessee
Packers case was the extensive unfair labor practice history
evidenced by several prior Board decisions which led the
Trial Examiner therein to conclude that the company was a
"habitual violater of the Act in a 6-year struggle against the
Union." Thus, I find persuasive the analysis and discussion
in Respondent's brief concerning the Tennessee Packers
decision as being a decision distinguishable from the
present case.
In Thurston Motor Lines, Inc., 168 NLRB 428, 429 (1967),
the Board relied on that company's adherence to its own
prior policy as a basis for reversing the findings of a Trial
complement at this one location, the small number of supervisors, and the
fact that she handled personnel matters have been considered in weighing
her familiarity with the store employees.
17 I reiterate that the question of compliance with the terms of the earlier
recommended Order is properly not an issue herein, and no finding is made
with respect to compliance matters.
232
MEAT PACKERS INTERNATIONAL
Examiner and dismissing the 8(a)(3) and (4) allegation
regarding employee Vaughn. The Board said:
In our view of the record, the factors relied upon by
the Trial Examiner do not support the inference he
drew, namely, that because Respondent failed to
explore the alternatives outlined in the preceding
paragraph it had acted on the basis of a continuing
animus against Vaughn, discharging him for his union
sympathies and the testimony he had proffered in the
earlier case.
In determining who shall be laid off, Respondent's
practice has been that employees in one classification
do not displace employees in another classification. Its
policy is not to bump "down the line or up the line." All
job changes which require some loss of employment are
confined to the classification involved. Thus, when
Larkins returned to work the only classification to be
affected under Respondent's practice was that of
tractor driver. Since Vaughn had replaced Larkins
when the latter was unlawfully discharged, Respondent
decided to reverse the process when Larkins, and other
employees in the same porition, were to be reinstated.
Therefore, Larkins replaced Vaughn, the man who had
replaced him. Yet, having made this choice, Respon-
dent did not discharge Vaughn. Instead, it placed him
at the head of the extra list, summoned him to the
terminal several times, for jobs, and told him that there
was plenty of work available. Vaughn ignored the
offers.
Furthermore, the record does not justify the Trial
Examiner's reliance upon Respondent's failure to
consider Vaughn for the positions supposedly opened
up by the decision of three discharged drivers not to
resume their employment with the Respondent. Their
choice did not create three additional driver positions.
It merely allowed the present occupants to continue
working without fear of replacement by those who were
returning to their jobs pursuant to the Board's Order in
the earlier case.
In view of Respondent's adherence to a policy
governing layoff which precluded bumping, its reason-
able decision, in the face of a Board Order, to replace
Vaughn with the same driver whom Vaughn had
previously replaced, and its frequent offers of extra
work to Vaughn after he was laid off, we find that the
General Counsel has not proved by a preponderance of
the evidence that Respondent had discriminatorily
discharged Vaughn. Accordingly, we shall dismiss the
complaint in Case 26-CA-2527 and -2.
Since the evidence in the present case establishes that the
Respondent has not followed seniority in the past, it
cannot be said that Respondent departed from its past
practice in laying off Castro even though he had more
seniority than some other employees.
Respondent has advanced convincing reasons why it
selected Castro, rather than another employee, when it
became necessary to lay off an employee to create an
opening for Ortiz. If Respondent had not selected Castro
for layoff, the question then would be who would have
been selected? The credited testimony shows no fault with
the work of any other employee and no basis for selecting
anyone else other than Castro.
It is significant that Respondent attempted to make it
clear to Castro the reason for his termination. Respondent
utilized an interpreter for this purpose to explain to him in
the Spanish language about the earlier Decision; the letters
offering reinstatement being mailed out to the employees;
the fact that Ortiz wished to be reinstated to work; and that
Ortiz would replace Castro. This was a carefully detailed
explanation given to Castro. I have not credited Castro's
assertions that he was told on one occasion that he was
being terminated because Salvadore Ortiz belonged to the
Union and the Company was hiring only people from the
Union and on another occasion that it was because Castro
had signed a union card.
It is also significant that Saul Frias is still employed by
Respondent. Frias, like Castro, was called as a witness by
the General Counsel in the earlier case and testified in the
proceeding. There is no allegation of any discrimination
against him. It is also noteworthy that there are no
allegations of any concurrent unfair labor practices in this
case. Assuming, arguendo, for the moment, that the Board
will sustain the unfair labor practice findings of the
Administrative Law Judge in the prior case, those findings
would show background evidence of union hostility on the
part of this Respondent. However, that background of
unfair labor practices by Respondent would not necessarily
compel a finding of an unfair labor practice by Respondent
in the circumstances of this case. See Charlena Lobianco,
d/b/a Loby's Cafeteria, 192 NLRB 752 (1971), wherein the
Board dismissed 8(aX)(), (3), and (4) allegations notwith-
standing an earlier unfair labor practice finding involving
the same employer and the same employee who had
testified in the prior case and who had been found to have
been discriminatorily discharged in the earlier proceeding.
The prior case is reported at 187 NLRB 420 (1970).
Finally, there is the question of why Respondent did not
subsequently rehire Castro when vacancies later occurred.
The answer is found in the testimony of Ms. Goldberg.
Castro made it clear to her that he was working elsewhere
and he did not want to return to work for the Company.
After considering the foregoing and the entire record, I
conclude that the preponderance of the evidence does not
establish that Respondent has violated the Act in terminat-
ing Castro and not reinstating him.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
i. Newton Joseph, d/b/a Meat Packers International,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Meat Cutters Local No. 421, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint in this proceeding.
[Recommended Order for dismissal omitted from publi-
cation.]
233