United Packing Co.

National Labor Relations Board - Board Decisions

Aug 13, 1984

271 N.L.R.B. 942 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harkeness-Colgate-Bartell, Inc., d/b/a United Pack-
ing Co. and Blanca Ybarra. Case 32-CA-4923
13 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 January 1984 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief
to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge dismissed the complaint allegation
that the Respondent violated Section 8(a)(1) of the
Act by discharging Blanca Ybarra on 29 September
1982. We agree with the General Counsel that
Ybarra's discharge violated Section 8(a)(1).
The record shows that Ybarra worked as a fruit
packer for 12 years in the Respondent's fruit pack-
ing and shipping business. She worked along a con-
veyor belt where she would pick up fruit released
onto the belt by automatic dumpsters and pack it
into boxes. Graders working on the main line have
the initial responsibility of removing damaged fruit
from the line. Inspectors positioned at the end of
the line make random inspections of packed boxes.
Those boxes containing more than three bad pieces
of fruit are returned to the original packer for re-
packing.
On 10 August 1982 Ybarra and six other employ-
ees formed a committee because of their dissatisfac-
tion with the working conditions at the Respond-
ent's packing facility. Ybarra was the spokeswoman
for the committee that complained to Packing Su-
pervisor Louis Salazar and Plant Supervisor
George Borello that senior employees were not
getting enough hours and that the floorladies were
mistreating some packers. At a meeting in late
August Ybarra questioned the Respondent's presi-
dent, Bill Colgate, about the disparate treatment of
two employees who walked off the job.
The undisputed evidence shows that on 28 Sep-
tember there were more problems than usual on
the packing line because a great deal of soft fruit
and fruit containing brown rot was being dumped.
Head floorlady Katherine Quindt testified that she
put extra graders along the line because the fruit
271 NLRB No. 153
was in such poor condition. Quindt also testified
that approximately 15--20 boxes were returned to
employees for repacking on 28 September and that
she walked up and down the line between four and
six times warning the employees that the fruit was
bad. I
Upon leaving work that same day, Ybarra met
Salazar and inquired as to the status of another em-
ployee's complaint of mistreatment by one of the
floorladies. Salazar answered that the employee
had met with Borello and that Salazar "washed his
hands" of the affair because Borello did not want
to listen. Ybarra responded, "Well maybe we need
a Union here."
Ybarra was called into Borello's office the next
day. Borello started the conversation by saying
that he thought Ybarra was unhappy working for
the Respondent. Ybarra and Borello testified to
somewhat different versions of the remainder of
the conversation.2 The conversation ended with
Borello discharging Ybarra after she rejected his
suggestion that she quit.
In analyzing this case, the judge found and we
agree that the General Counsel made a prima facie
case under Wright Line.3 Thus he found the dis-
charge of long-time (12 years) employee Ybarra
occurred in the middle of the workweek close to
the end of the packing season and shortly after
Ybarra's active participation in meetings regarding
employee dissatisfaction with the current working
conditions at the Respondent's packing facility.4
Having found that the General Counsel met his
burden under Wright Line, the judge turned to
whether the Respondent sustained its burden "that
the same action would have taken place even in the
absence of protected activity." In finding that the
Respondent had met its burden, the judge relied on
testimony that Ybarra's work deteriorated during
the 2 months prior to her discharge and that
Ybarra packed at least four boxes of peaches that
were rejected by inspectors the day preceding her
discharge. A careful review of the record evidence
convinces us that the Respondent failed to satisfy
its burden under Wright Line.
As to Ybarra's alleged deteriorating work, the
judge relied solely on the testimony of Supervisor
Quindt. Quindt's testimony on this matter was lim-
ited to her remark on direct examination that Ybar-
I Quindt testified that Ybarra had five boxes returned for repacking.
However, Quindt stated that she did not write down the first rejection as
she did with the other four. Ybarra testified to having only four boxes
rejected.
2 See judge's decision item 9; the events of 29 September.
3 251 NLRB 1083 (1980).
Chairman Dotson notes that no exceptions were filed to the judge's
finding of a prima facie case. See NLRB v. Cast-A-Stone Products, 479
F.2d 396 (4th Cir. 1973).
942