Rio de Oro Uranium Mines, Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) All production employees, including the plant clerical employees. If a majority of the employees in voting group (a) select the labor organizations (Machinists, Boilermakers, or Plumbers) seeking to rep- resent them separately, these employees will be taken to have indicated their desire to constitute a separate bargaining unit, and the Regional Director conducting the election is instructed to issue a certification of representatives to whichever of these three labor organizations has won a majority of the valid votes cast in this voting group, which the Board in such circumstances finds to be appropriate for the purposes of collective bargaining. In that event, if a majority of the em- ployees in voting group (b) select either the Pulp and Sulphite Work- ers or the Papermakers, the Regional Director is instructed to issue a certification of representatives to such labor organization selected for a unit of production employees, which the Board, in these circum- stances, finds to be appropriate for collective bargaining. However, if a majority of the employees in voting group (a) do not vote for the labor organizations seeking to represent them separately, they will be included in, and their votes pooled with, those of voting group (b),' and the Regional Director conducting the election is instructed to issue a certification of representatives to the labor organization selected by a majority of the employees in the pooled production and maintenance group, which the Board, in such circumstances, finds to be appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] 7 If the votes are pooled , they are to be tallied in the following manner : The votes for the unions seeking a separate maintenance and repair unit shall be counted as valid votes, but neither for nor against the unions seeking to represent the more comprehensive production and maintenance unit; all other votes are to be accorded their face value, whether for representation by a union seeking the more comprehensive group or for no union. Rio de Oro Uranium Mines, Inc. and International Hod Carriers and Laborers Union, Local No. 16, AFL-CIO. Case No. 33-CA- 402. April 3, 1958 DECISION AND ORDER On September 10, 1957, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices al- leged in the complaint and recommending that the complaint be dis- missed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed excep- 120 NLRB No. 49. 1 RIO DE ORO URANIUM 'MINES, INC. 295 tions to the Intermediate Report and a supporting brief, and a brief and reply brief were filed by Respondent. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs,' and the entire record in the case. It hereby adopts the Trial Examiner's findings and conclusions. [The Board dismissed the complaint.] 1 Notwithstanding the apparent inconsistencies in Respondent's evidence discussed in the General Counsel's brief, the Board would not be warranted in overruling the credibility findings of the Trial Examiner. Universal Camera Corp v. N. L. R. B., 340 U. S. 474. In our view, the General Counsel has not sustained his burden of establishing that Chavez stated to an employee that Garcia was going to be discharged because of union activity, or that Garcia's discharge was motivated by union activity, as to which Respondent's knowledge is questionable, instead of inadequate production and leadership. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on April 19, 1957, by International Hod Carriers and Laborers Union, Local No. 16, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel 1 and the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued his complaint, dated June 18, 1957, against Rio de Oro Uranium Mines, Inc., herein called Respondent, alleging that Respondent had en- gaged in and was engaging in unfair labor practices, affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge and complaint, together with notice of hearing thereon, were duly served upon Respondent and upon the Union. Specifically, the complaint, as amended at the hearing, alleged that Respondent on or about April 5, 1957, (1) discharged, and thereafter refused to reinstate, Esperidion Garcia,2 because he had joined or assisted the Union or had engaged in other protected activities and,(2) Foreman Jose D. Chavez told an employee that Garcia was going to be discharged because he was trying to get the Union into the mine. On July 1, 1957, Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was held on July 15, 1957, at Grants, New Mexico, before the duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel; the Union by an official thereof. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally at the con- clusion of the taking of the evidence, and to file briefs or proposed findings of fact and conclusions of law on or before August 5, 1957.3 The brief and proposed find- 1 This term specifically includes counsel for the General Counsel appearing at the hearing. 9 Also referred to in the record as Pete Garcia. 8 At the request of Respondent's counsel the time was extended to August 19, 1957 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'ings and conclusions received from Respondent have been carefully considered. The findings and conclusions are disposed of in accordance with the findings, conclu- sions, and recommendations set forth below. Likewise Respondent's motion,, made at the conclusion of the hearing and upon which decision was reserved, is disposed of in accordance with the findings, conclusions, and recommendations set forth below. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Rio de Oro Uranium Mines, Inc., a Delaware corporation, has its principal offices in Albuquerque,' New Mexico. During all times material herein, Respondent has been engaged in and now is engaged in mining uranium ore at its Grants, New Mexico, mine. During the past 12 months, a representative period, Respondent pro- duced and sold to the Atomic Energy Commission, a defense agency of the United States Government, uranium ore valued in excess of $400,000. Upon the above agreed facts, the Trial Examiner finds that during all times ma- terial herein Respondent has been engaged in and now is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act for the Board to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Hod Carriers and Laborers Union, Local No. 16, AFL-CIO, is a labor organization admitting to membership employees of Respondent. . III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged discriminatory discharge of Esperidion Garcia 1. The pertinent facts Esperidion Garcia, also referred to in the record as Pete Garcia, was first hired by Respondent as a miner on March 16, 1956, at the rate of $1.75 per hour. On April 20, as a result of a general wage increase, his wages were raised to $2 per 'hour. On September 20, he was made "head driller" or "lead driller" or "head 'driver" at $2.25 per hour. On November 15 Garcia was laid off. He was rehired at $2 per hour on December 6. About a week later his wages were raised to' $2.25 per hour. On January 17, 1957, Garcia and "a bunch of guys" were laid off. De- spite the fact that Garcia had more seniority than any of the "bunch of guys" laid off on January 17, all of them were rehired 2 or 3 days later and Garcia was not recalled until March 15, at a wage rate of $2 per hour. On or about April 1 Mine Foreman Marshall Fletcher erroneously believed that Garcia's rate of pay should be $2 25 instead of $2 per hour and Garcia was so notified. However, on April 3 Fletcher noticed his error and Garcia was returned to his old rate of pay. Regard- ing this mistake, Fletcher credibly testified as follows: That was a mistake on my part, being new 4 to the men their names and their faces and the time books were dumped in my lap, so to speak, and in thumbing back through the names I got confused and gave him a two dollars and twenty- five cents an hour rate, which I discovered a couple of days later was a mistake, and I immediately notified the time keeper that it was a mistake and told Joe D. Chavez 5 that in event that Pete had heard about it, to inform him that it was a mistake and that he would go on his old rate of two dollars an hour. Several days after his January 17 layoff, Garcia went to the mine to, to quote Garcia, "get my application so that I could get my . . . unemployment compen- sation." While there, Garcia received from Ray D. Reynolds, Respondent's then mine foreman, the following: 4 Fletcher's employment with Respondent commenced on March 28, 1957 5 Garcia's shift foreman RIO DE ORO URANIUM MINES, INC. 297 Esperidion Garcia Has Performed his work sufficiently since he has been em- ployed for this mine R. D. REYNOLDS, Mine foreman, Rio De Oro Uranium Mine inc. Has Been Layed off because of cut in crew. On April 1, while gathered in the "changing room," the employees on Garcia's shift discussed the Union and the advisability of joining it in the presence of Shift Foreman Jose Chavez. Garcia and employee Eddy Barker were the leaders of the discussion. During the course of the discussion, Barker asked Chavez how he felt about the Union and the latter replied, in effect, that since he was part of manage- ment he could not discuss the matter with nonsupervisory employees. On April 4, Garcia obtained some union membership application cards. While en route to the mine to commence his shift that day he stopped at a trailer camp, located some 3 miles from the mine where he requested and obtained signatures to said cards from some of his coworkers . After the completion of his shift that night, Garcia traveled to San Mateo, which is about 10 or 15 miles from the mine, and secured other employees ' signatures to membership cards. In all , Garcia obtained about 14 or 15 signed cards that day and night . All the cards were signed either in his coworkers' cars or in their homes. Ray L. Schultze credibly testified that he has been at the mine since March 1, 1957, and has been general superintendent since March 8 or 11 ; that on or about March 25, he discussed with Ray D . Reynolds, Respondent's then mine foreman and Fletcher's immediate predecessor, the mine employees generally and Garcia in particular ; that Reynolds informed him that Garcia "was one of the poor hands" and "not a good producer"; that since he took over as mine superintendent he had made a complete study of the employees' production records; that on or about April 3, he and Fletcher , to quote Schultze, "discussed the efficiency records, in general, and we discussed the drilling crews and we discussed Pete Garcia, and I referred to my previous conversation with Ray Dean Reynolds in which Ray Dean said that he was not a good hand and I told Fletcher that we should discharge Garcia; that he arrived at his decision that Garcia should be terminated (1) because he felt that the small amount of work done by Garcia's crew was due to Garcia's inability to get "out of production" 6 and (2) it had come to his attention that Garcia "was not getting along well with other workers ." Schultze further testified, and'the Trial Examiner finds, "I learned of the actual organizing after [Garcia's] discharge. There was a certain amount of talk that I had heard before his dis- charge , but I did not know that there were any cards, that he had any cards, that there were any cards on the property until after his discharge "; and that prior to Garcia's discharge he was aware of Garcia's interest in behalf of the Union, but that Garcia's said interest played no part in Respondent's determination to discharge Garcia. Fletcher testified, and the Trial Examiner finds, that after discussing the low production rate of Garcia's crew with Schultze on or about April 3, coupled with the fact that some of the men preferred not to work with Garcia , in addition to Reynolds' statement to him that Garcia "wasn't capable of being a lead miner and that his work in his estimation didn't average out with the rest of the general 6 Regarding this Schultze testified , "He (Garcia ) had been a lead man, apparently, ac- cording to the old records, and he had come back to work, and didn't appear to me that if he were considering himself a lead man that he was doing his job, getting out pro- duction." The fact that Garcia considered himself in charge of the crew is evidenced by the following portion of his cross-examination : Q. When you say that you were head driver, does that mean that you were the head man [of] the crew on your particular shift?-A. Well, old Joe (Jose Chavez) told me the way he understood-the way the company told him that I was being, you know, after him See , he was a shift boss and if he was not there I would have to take care of the mine to have everything in operation , have everything going down there, . . . ;Q You testified that there were three men in your particular crew, is that cor- rect?-A. Yes, sir. Q. And were you.the lead ,man on that particular crew 9-A. Yes, sir. Q. Then it was your responsibility as to the number of holes drilled and how they were drilled and so forth ?-A. Yes, sir. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miners around the plant," he told Chavez on April 5, to inform Garcia that he was being terminated at the conclusion of his shift. Chavez testified that about an hour before the conclusion of the shift on April 5, he informed Garcia that he was being discharged; that Garcia demanded to know the reason for such action; that he told Garcia that he did not know and then suggested that Garcia "go to the office" if he wanted to ascertain the reason; that Garcia, after exhibiting his union card, asked whether his organizational activities were the cause for, his discharge; that he again replied that he did not know why he was being terminated; and that prior to that time he did not know that Garcia had a union card. Employee Ignacio Valles testified that about an hour before Garcia was informed of his termination, Chavez came to where he was working and said that Garcia "is going to be discharged tonight"; and that when he asked why, Chavez replied, "Because he is a unionist." Chavez unequivocally denied making the statement attributed to him by ` Valles or any similar statement . In the light of the Trial Examiner's observation of the conduct and deportment at the hearing of Valles and Chavez, and after a very careful scrutiny of the record, all of which has been carefully read, and 'parts of which have been reread and' rechecked several times, and being mindful of the contentions of the parties with respect to the credibility problems here involved, the Trial Examiner credits Chavez's testimony and finds that he did not make the statement attributed to him by Valles. 2. Concluding findings Upon the entire record in the case, the Trial Examiner is convinced, and finds, that Garcia's union activity and sympathy played no part in Respondent's deter- mination to discharge him. The Trial Examiner further finds that Garcia was dis- charged for the reasons advanced by Respondent .? Accordingly, since the General Counsel has failed to prove by a fair preponderance of the credible evidence that Garcia was discriminated against in violation of Section 8 (a) (3) of the Act, the Trial Examiner will recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Rio de Oro Uranium Mines, Inc., Albuquerque , New Mexico, is engaged in, and at all times material herein was engaged in, commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Hod Carriers and Laborers Union, Local No. 16, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint, as amended at the hearing, that Respondent had engaged in and was engaging' in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act have not been sustained by substantial evidence. [Recommendations omitted from publication.] 7It Is significant to note that the record is devoid of any evidence tending to show any past or present union hostility or animus on the part of Respondent. Miller Electric Manufacturing Co., Inc. and Associated Unions of America. Case No. 13-CA-2135. April 3, 1958 DECISION AND ORDER On June 11, 1957, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding,that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Inter- 120 NLRB No. 47.