Inter-American Foods, Inc.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inter-American Foods, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 173, AFL-CIO. Case No. 23-CA-2037. December 16,1965 DECISION AND ORDER On October 22, 1965, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a. supporting brief and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. - The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order dismissing the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Leo F. Lightner in Browns- ville, Texas, on July 6 . and 7, 1965, on the complaint of General Counsel, as amended, and the answer of Inter-American Foods, Inc., herein referred to as Respondent.' The issue litigated were whether the Respondent violated Section 8(a)(4), (3 ), and (1 ) and Section 2(6) and (7) of the Labor Management Rela- tions Act, 1947, as amended , 61 Stat. 136 , herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered . During the hearing I reserved rulings ' on several motions. These motions are disposed of in accordance with the findings and con- clusions herein set forth. Upon the entire record, and from my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation, having its principal place of business and plant in Brownsville , Texas, where it is engaged in the processing of shrimp and other food products. During the 11 months preceding the issuance of the com- 1 A charge was filed on April 29, and an amended charge was filed on May 5, 1965. A complaint was issued on June 3, 1965, and amended during the hearing. 156 NLRB No. 28. INTER-AMERICAN FOODS, INC. 73 plaint,2 a representative period, Respondent manufactured, sold, and shipped from its Brownsville plant food products valued in excess of $50,000 to points outside the State of Texas. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butchers Workmen of North America, Local Union No. 173, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issues The principal issues raised by the pleadings , as amended, and litigated at the hearing are whether the Respondent : (a) was discriminatorily motivated in failure to rehire Rebeca Govea 3 and Mickey Baker on or about April 5, 1965, and there- after, in violation of the provisions of Section 8(a)(3) and (1) of the Act; or (b) failed and refused to rehire the named employees because they filed charges or gave testimony under the Act in violation of Section 8(a)(4) and (1) of the Act. Respondent generally denied the commission of any unfair labor practices. Background and Sequence of Events Except -as noted, there is no dispute as to the sequence of events herein set forth. Respondent was incorporated in April 1964, and began production operations on July 1, 1964. The premises where Respondent carries on its activities had been previously occupied by Brownsville Shrimp Exchange, Trade Winds Company, and Booth Fisheries, the first named company being the immediate predecessor.4 Brownsville Shrimp Exchange had closed down on an unspecified date in 1962, reopened about October 1963 and operated until February 1964, with a complement of 18 or 20 employees in the latter period, after which they discontinued. operations.° It is undisputed that Manager-Comptroller Walsh and Ramon Saldivar 6 are super- visors within the meaning of Section 2(11) of the Act.7 On June 30, 1964, Saldivar hired Rebeca O. Govea, and she reported for work commencing July 1, 1964, being initially assigned to the area where the breading of the shrimp was performed. A week later she was assigned to the packing depart- ment. After 3 weeks she was assigned as a peeler, remaining in that category until her termination on September 4, 1964. Mickey Baker was similarly hired by Salidvar, commenced work on July 1, 1964, and initially she worked as an inspector in the breading department, then was transferred to peeling about 3 weeks prior to her termination on September 4, 1964 . Govea and Baker are the alleged discriminatees herein. It is undisputed that Respondent . actually commenced operations on July 1, 1964; the complaint issued on June 3, 1965. 8 The complaint was amended at the hearing to correctly reflect the spelling of the last name. "Plant Superintendent Saldivar asserted he worked for the Brownsville Shrimp Ex- change from 1952 until 1955, then for Trade Winds until 1957. When Trade Winds moved out In 1957, Brownsville Shrimp Exchange took over again. 51 have taken official notice of Case No. 23-CA-1874 In which Trial Examiner Whit- temore made certain findings on March 25, 1965. Respondent did not appeal , the Board adopted the findings and conclusions of the Trial Examiner on August 4, 1965, and Re- spondent complied with the Recommended Order. The Board found, therein, that Manuel Sanchez, Jr., was president of a corporation which owned the plant, Inferentially, Brownsville Shrimp Exchange , and Sanchez remained at the plant " off and on" until October 1, 1964, providing "advice" to Inter-American 's management . This was the credited testimony of General Manager Henry Willson Walsh in the earlier case. 6 Undoubtedly the same individual identified as Plant Superintendent Saldivar In the earlier case. 7I find It unnecessary to resolve the allegation of the amendment that Antonia Guevara was a supervisor in August and early September 1964. General Counsel , contends she was a supervisor, while Respondent contends that she was a "lead girl " or "pusher." 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Govea related that about a week after she began working for Respondent, she and Baker obtained union authorization cards from Franklin Garcia. Govea and Baker talked to employees and obtained signatures on some cards.8 About July 14, Respondent held a meeting of the production employees which was addressed by Sanchez, in the presence of Plant Superintendent Saldivar. A second such meeting was held a month later. The Board has found that this conduct of the Respondent, through Sanchez, constituted a violation of the provisions of Section 8(a)(2) and (1) of theAct9 In August 1964, Respondent purchased and installed seven Pronto machines. Saldivar credibly related that these machines partially peel and devein shrimp for breading purposes. Employees, classified as peelers, now do the finish work of peeling and inspect the shrimp. As a result, according to Saldivar, four, five, or six employees, including Govea and Baker, were selected by him for discharge on September 4, 196410 In January 19,55, Respondent installed 10 Johnson shrimp trimming machines. Saldivar explained that a crew of 90 employees were required to handpeel 10,000 pounds of shrimp in an 8-hour shift, while with the 10 machines 35 employees were required to peel 10,000 pounds. Saldivar asserted that while they had done some handpeeling since January 1965, there had not been very much, and when necessary they used the packers to do this work. On February 17, 1965, Govea appeared and testified in the prior case. Walsh appears to have been the only member of Respondent's hierarchy present at the. hearing. It is undisputed that while Baker was present in the courtroom, among the spectators, she was not called as a witness and was not identified as a potential witness. The Events of April 5, 1965 The only undisputed facets of the events of April 5 are that Govea applied to Saldivar for employment, and subsequently she and Baker. talked to Walsh, with Saldivar present. Saldivar credibly related that hiring of production workers is done only by him or Walsh.1' Walsh asserted Saldivar hires all production employees. Saldivar related that about 7:15 a.m. on April 5, 1965, Govea walked into his office, alone, and inquired as to whether he was hiring any people. He respondent that he had been hiring some. She then inquired if he was going to hire anyone that day and he responded that he was not hiring anyone that day. She then asked when he would be hiring, and he responded that he did not know, that he would have to talk to Walsh. Govea then inquired if she could see Walsh, and inquired as to what time he would be in. Saldivar responded that she could see Walsh and that he would be in between 8:30 and 9 o'clock. I credit Saldivar, and particularly his assertion that no one else was present during this conversation. Govea asserted that she went to Respondent's plant with Jose Ramirez Valdez and Jose Velasquez. It is undisputed that neither Valdez nor Velasquez had ever worked for Respondent. Govea's alleged reason for going to the plant was that a coworker friend had advised her that Respondent was hiring employees. Govea asserted that she entered the front door of Saldivar's office while Valdez and Velas- quez entered through a side door, that they listened while she talked to Saldivar, that they spoke to Saldivar about employment after her conversation with Saldivar, but she did not hear what was said between them and Saldivar. Govea asserted that Saldivar advised her that he was hiring "and I will hire, but I will not hire you." 8 Govea asserted she obtained 14 or 15 cards. Baker asserted that she obtained 12 or 15 cards within a period of 2 weeks. It is undisputed that there were over 125 produc- tion employees. 9 Case No. 23-CA-1874. 10 The charge in Case No. 23-CA-1874, alleging conduct violative of Section 8(a) (2) of the Act, was filed on August 12, 1964. An amended charge, filed September 14, 1964, alleged that the discharges of Govea, Baker, and Jovita Gonzales were violative of Sec- tion 8(a) (3) and (4) of the Act. The complaint, issued on October 22, 1964 was confined to the allegations relating to the Section 8(a)(2) violations . The Regional Director dis- missed the Section 8 ( a) (3) and (4) allegations , and his ruling was sustained on appeal. Saldivar credibly asserted the discharge of Govea and Baker was due to unsatisfactory work habits. u Saldivar's assertion that Respondent obtains needed employees from the Texas Em- ployment Commission, and applicants at the plant , some of the latter being recommended by other employees, is credited. INTER-AMERICAN FOODS, INC. 75 Govea asserted that she then told Saldivar that he had previously advised her that she was not fired, but merely suspended, and Saldivar advised her that she would have to talk to Walsh personally. Valdez, who sought to corroborate the testimony of Govea as to the statements of Saldivar, asserted that during this conversation "I was standing right beside Mickey when the conversation with Mr. Saldivar." The only Mickey identified in the record is Baker, and it is patent that Baker was not present during Govea's interview with Saldivar. Valdez acknowledged he was not present during the subsequent conversa- tion with Walsh when Baker was present.12 Velasquez similarly sought to corroborate the testimony of Govea that Saldivar stated, "Yes, I am hiring, but I can't hire you." On the basis of demeanor, the conflicts in the testimony of General Counsel's wit- nesses, exhibiting, as a minimum, poor memory, the fact that there is no evidence that anyone was hired on April 5, I credit Saldivar's version of his conversation with Govea. Govea, Valdez, and Velasquez then left the plant to pick up Mickey Baker. It appears that the first three speak only Spanish and Baker was sought in order to have an English-speaking person present during the interview with Walsh. It is undisputed that while Valdez and Velasquez returned to the plant with Govea and Baker, they remained in the car and were not present during the subsequent interview Govea and Baker had with Walsh. Plant Manager Walsh related that the first time he had seen Govea was when she testified on February 17.13 He did not recall ever seeing Mickey Baker prior to April 5. Walsh acknowledged that he was advised that Govea and Baker were seeking employment as peelers . Walsh described Saldivar as the one who did the hiring of the plant and processing personnel. Walsh called Saldivar to his office and, in the presence of Govea and Baker, inquired if Saldivar was in need of additional help. Saldivar responded that he was not. Walsh then advised Govea and Baker that they should leave their names and addresses and that Respondent would contact them if it was in need of their services. Walsh asserted that Respondent did not thereafter hire anyone for "handpeeling." He asserted that "he understood" Saldivar later contacted the Texas Employment Commission for personnel experienced in the oper- ation of Johnson machines. The record establishes that the request for personnel occurred in June.14 Saldivar corroborated Walsh. He asserted that he was called to the office and saw Govea and Baker. Walsh first inquired if Saldivar knew these individuals, and Saldivar responded in the affirmative. Walsh inquired as to whether Saldivar needed any employees that day and Saldivar responded in the negative. Walsh then advised Govea and Baker that he was sorry he could not hire them. Saldivar's denial that he had hired any employees on April 5 is substantiated by the record.'5 Govea asserted that when she and Baker returned to the plant premises they encountered Walsh as the latter was getting out of his car. Govea asserted that Baker identified herself, then Govea identified herself. Govea then related that when she mentioned her name Walsh responded, "Oh, yes I saw you in court." Walsh invited them into the reception area, called Saldivar, and, according to Govea, "they spoke privately for a long time." Govea asserted that Walsh then invited them into his office and inquired as to what they wanted and was advised that they wanted work. Govea asserted that Baker advised Walsh, "We know you are hiring people and that is why we have come out here." Govea asserted that Walsh then asked if they had worked there previously, if they had sought work elsewhere, and if they had not found employment. Govea acknowledged Walsh then inquired as to whether Saldivar was hiring anyone and was advised in the negative. Govea asserted that Baker then asked if they should return the following day, the following week, or the following month. Walsh responded that they had their addresses and if Respond- ent needed them that they would be called. Govea then asserted that six new people were hired on April 5. "Another conflict appears in the assertion of Valdez that Govea picked up Velasquez in Govea's car at Velasquez' home by arrangement the prior day. Velasquez, to the con- trary, asserted that he drove his car to Govea's home, then accompanied Govea in her car to the plant. 33 This assertion was corroborated by Govea , who asserted she first encountered Walsh on April 5, although she saw him, in court, on February 17. 14 However, Saldivar made no reference to the operation of Johnson machines in his description of the qualifications he assertedly gave at the time of this request. w Saldivar acknowledged hiring an employee named Fidela Garza , who was experienced on a Johnson machine, on Friday, April 2. Garza reported for work on Monday, April 5. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Govea, who testified herein through an interpreter, asserted that she had Baker accompany her to Respondent's plant in order for Baker to ack as an interpreter during this conversation. It is patent that Respondent did not hire six people on April 5.16 Baker's version was that they encountered Walsh in the parking area, and after each had identified herself by name, Walsh stated, "Oh, I know you both. You were at the courthouse." Walsh then had them wait in an outer office while he called Saldivar and conferred with him for about 15 minutes. Walsh then inquired if they were looking for a job and she responded in the affirmative. Walsh then asked if they had worked for the Respondent previously and she responded that she had worked there "from 8 to 10 years." Walsh then asked Saldivar if he needed two more women and Saldivar responded "Not right then." Walsh advised that he could do nothing because Saldivar did the hiring and said he did not need anyone right then. It was at this time that Walsh advised that he had their addresses and tele- phone numbers and would get in touch with them if he needed them. To the extent the testimony of Govea and Baker is at variance with that of Walsh and Saldivar, I credit the latter two.17 Other Events General Counsel sought to establish, as background, an event assertedly constitut- ing interrogation of Govea and Baker by Antonia Guevara. Govea's testimony was that during working hours Guevara came over and stood between Baker and Govea and asserted, "Girls, I want to ask a question. I want to ask you and I want you to tell me which is the good Union, the one inside or the one outside? I want to know because if the inside union wins or the outside union wins, I want to be in it." Govea asserted that Baker responded, "Why do you ask us. Why don't you ask your husband. He is a member of the Union and he could tell you." Baker's version was that on September 2, as they were returning from lunch, Guevara approached Govea and Baker and stated she wanted to talk to them. She then asked them if they could tell her how she could join the Union on the outside, that she wanted to join the Union on the outside because she was afraid she might lose her job if she joined the Union on the inside. Baker asserted that it was Govea who advised Guevara that if she wanted some information to ask her husband because he was in the Union. Baker asserted that she told Guevara that if she was interested in the Union on the outside to go to the meetings. I find it unnecessary to resolve the conflict in the testimony of Baker and Govea. Guevara did not appear as a witness. I likewise find it unnecessary to resolve the question of whether Guevara was in fact a supervisor. The Board has previously 16 The record establishes the hiring of nine packers thereafter ; four on April 8, two on April 12, and three on April 15. There is no evidence of the hiring of any peelers until June 1965, after the hiring of Garza. 17 In arriving at this finding, I have considered the demeanor of the witnesses, and numerous conflicts in the record, including the following. Initially Govea asserted that she worked for Brownsville Shrimp Exchange for 8 years . Saldivar denied knowledge of Govea working for him at any time prior to July 1, 1964, acknowledging that many hundreds of girls had worked for him and he could not identify all of them . On rebuttal Govea revised the period of time she worked for Brownsville Shrimp Exchange to 3 or 4 months, and she was uncertain whether it was in 1962 , or prior to 1959, when she started working at a company identified as Pan-Am. Govea asserted she had a number of con- versations with Saldivar during this prior period of employment. Govea had written in ink, on her hand, the dates of July 1 (the date she started to work), July 14 (the date Sanchez addressed the employees), July 15 (when she held a meeting with other employees in her automobile), and August 26 (when the union cards disappeared from the glove compartment of her automobile ). Upon being questioned as to the reason for the notations , Govea's unconvincing explanation , was "I was just doodling with my fountain pen and I just did this unconsciously." Govea was evasive when questioned as to whether or. not she was involved in an unfair labor practice charge brought by the Union against United Foods, relative to the layoff of Govea and others at United Foods on an unspecified date in 1964. Thereafter it was stipulated that the Rebeca 0. Govea listed in the settlement agreement, in Case No. 23- CA-1853, signed by United Foods, Inc., on January 22, 1965, by the Union on January 26, 1965, and approved by the Regional Director for Region 23 on January 27, 1965 , was the same individual as the Rebeca 0. Govea in this case . Govea's later explanation was that she denied being the individual involved "because I understood that I had attended a hearing just like this one, and I did not attend a hearing like this one." INTER-AMERICAN FOODS, INC. 77 found union animus in the conduct of Respondent in the prior case . This event predated the Section 10(b) period . Why this event, if it occurred, was not set forth in the prior case is unexplained. Contentions of General Counsel General Counsel asserts, in his brief , the unexplained disappearance of union cards from Govea's car, on August 26, 1964, the interrogation by Guevara on September 2, 1964, and the layoff of September 4, 1964 , are the basis for the drawing of an infer- ence that the employees were "terminated for union activities ." General Counsel, in so contending , makes no effort to explain the dismissal of the Section 8(a) (3) and (4) allegations of the amended charge by the Regional Director on October 27, 1964, and the sustaining of the Regional Director 's ruling on February 5 , 1965, by General Counsel in the preceding case. I find no merit in this contention. General Counsel contends that on September 4, 1964, Govea and Baker were not discharged, but were laid off. Next, General Counsel contends that as laid-off employees they were entitled to recall . I find no merit in either of these assertions which are next considered. It is undisputed that all of the employees who were released on September 4, 1964, were given a notice, together with their paycheck . Since this notice was in the Spanish language, the interpreter provided , by agreement of the parties , the official interpretation of the contents as follows: "Sentimos mucho despedirla" means "you are fired." "Debido al escaso de trabajo nos forsamos hacer repaje de empleados " means "due to scarcity of work, we are forced to cut down on our employees ." "Quizas en el futuro Ie volveremos a llamar" means "maybe in the future we might call you." Thereafter the translator asserted the Spanish word "terminarse " is a more precise word meaning terminate employment . He then asserted that the word "despedirla" had three meanings ( 1) "allow you to leave"; (2) "you are fired"; and (3) "you may leave." He then asserted it is not an exact word which means "you are fired" or "you are laid off." Govea related that after receipt of the notice she spoke to Saldivar and asked him, "Why am I being fired ?" Govea asserted that Saldivar responded , "You are not fired, you are suspended . As soon as there is work we will call you." Govea asserted that she then went to Sanchez' office, did not find him there, but talked to his secre- tary. I do not credit this recitation of Govea. I would appear improbable, if as Govea asserted , Saldivar assured her that she was not being fired, but only suspended, that she would have sought to see Sanchez.18 Baker asserted that on September 4, 1964, when she received the notice she went to Sanchez' office, found that he was not there, and was , advised by his secretary that "we were not fired that we were laid off, that as soon as they had work they would call us back." 19 Saldivar, by way of explanation of his determination to discharge Govea and Baker, related that Baker had worked for him for approximately 4 years at Brownsville Shrimp Exchange . During that period she had been given a temporary layoff of 2 or 3 days, with a warning, for chewing gum, throwing shrimp at other employees, and playing. Later Saldivar discharged her. In spite of this background he rehired Baker, when he was hiring employees for Respondent, because he knew she was experienced . Saldivar credibly related that on June 30, 1964, he advised Baker that he would hire her "if you promise me not to be playing like you used to before." I credit Saldivar's assertion that the employees who were released on September 4, 1964, were discharged , as distinguished from being laid off. The only inference this record permits is that Respondent had no recall procedure. When new employees were needed , as I have found supra, they were hired at the gate, some as the result of a reference to the plant by the Texas Employment Commission.20 18 Another illustration of the inaccuracy of the testimony of Govea is her assertion that she was advised , prior to her trip to the plant on April 5, by Paola Salinas, another em- ployee, that the Respondent was going to hire 30 ladies for a night shift, and that a night shift was hired and put to work 2 weeks after her April 5 visit . The record estab- lishes that the night shift was hired and placed into operation in June 1965. 19 There is no evidence that Respondent followed a practice of recall of laid-off em- ployees. Saldivar's assertion , "we never call ( recall) anybody," stands undisputed, and is credited. 20 Similarly I credit Saldivar's assertion that when anyone called him on the telephone relative to possible employment he advised them to come to the plant. 78 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD Concluding Findings The basic question to be resolved thus is whether there is sufficient evidence to establish that the Respondent's failure to hire Govea and Baker, when it did hire other employees, on and after April 8, 1965, as distinguished from April 5, when no hiring was done, was discriminatorily motivated. The record fails to establish the existence of any procedure or practice by the Respondent of recalling former employees.21 Respondent's practice, to the con- trary, was to hire those who applied at the gate, including those advised to make such application by other employees, or by requesting the Texas Employment Com- mission to send applicants to the plant for an interview. I find Govea and Baker were aware of this practice. The single question then is whether Walsh's assurance, on April 5, 1965, that if Baker and Govea would leave their addresses they would be recalled "when needed," and the failure of Respondent thereafter to vary its normal hiring procedure, of hiring at the gate, constitutes sufficient evidence to support a finding of discriminatory motive. Saldivar credibly related his reason for not calling Govea, and inferentially Baker, when he hired others on April 8, as "we never call anybody." 22 In June, Respondent requested the Texas Employment Commission to refer a sub- stantial number of applicants for interview, for the hiring of a night shift. While both Govea and Baker asserted they were registered with that commission, neither was referred. This failure is obviously not chargeable to Respondent. In the Bryan case 23 the Supreme Court held that where occurrences within the 6 months' limitations period in and of themselves may constitute as a substantive matter unfair labor practices-earlier events may be utilized to shed light on the true char- acter of matters occurring within the limitations period; and for that purpose Section 10(b) ordinarily does not bar such evidentiary use of anterior events. Respondent's union animus is established by the speeches of Sanchez in July and August 1964 which the Board found to be violative of Section 8(a)(2) and (1) of the Act. There are anterior events. However, these events may be utilized only to shed light on the true character of matters occurring within the limitations period.24 Respondent, to avoid a finding of discrimination, is not required to vary its normal hiring procedures, or to give preference to those if knew to be union advocates.25 Court and Board decisions are uniform in holding that union activity does not, per se, entitle an employee to preferential treatment. It thus appears, and I find, that the most that can be said, upon consideration of the record as a whole, is that it raises a suspicion of Respondent's motive, in advising Govea and Baker they would be called when needed, at the time Govea and Baker applied for reemployment on April 5, 1965. In the Exeter case 26 the Board held, as it has in numerous cases, that while there are suspicious circumstances [attending the failure to rehire] we do not find that a preponderance of the evidence establishes a discriminatory motivation therefor. In these circumstances, since the burden of proof was upon the General Counsel, I believe he has not met his burden of proving by a preponderance of the evidence that Govea and Baker were discriminated against because of their union activity.27 I find accordingly. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 21 Cf. Southern Electronics Company, Inc., 134 NLRB 80. 22This case is factually distinguishable from Paramount Cap Manufacturing Company, 119 NLRB 785, and similar cases. 23 Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et at. (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411, 416, 417. 24 However, it is noted that Sanchez left Respondent in October 1964. Respondent did not appeal from the findings of the Trial Examiner, and complied with the Recommended Order, in the preceding case. This is the sole instance of violation reflected in this record. 25 While I have found that there was no knowledge, chargeable to Respondent, that Baker was present and available to testify, in the prior hearing, on February 17, 1965, I find this fact of no consequence. The Act refers, In the alternative, to either filing charges or giving testimony and It is undisputed that charges had previously been filed, by way of amendment in the prior case, on behalf of both former employees. 26 Exeter Coal Company, 154 NLRB 1678. N Elsa Canning Company, 154 NLRB 1696. MT. PLEASANT PUBLIC UTILITIES 79 2. Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 173, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct constituting unfair labor practices affecting commerce within the meaning of Section 8(a) (4), (3), or (1) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety. Mt. Pleasant Public Utilities and Local Union 735, International Brotherhood of Electrical Workers, AFL-CIO. Case No. AO- 91. December 16, 1965 ORDER DISMISSING PETITION FOR ADVISORY OPINION On November 12, 1965, Mt. Pleasant Public Utilities, herein called the Employer, filed a petition pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, requesting an Advisory Opinion with respect to the jurisdictional issue arising in the proceeding filed by the Employer in the Twentieth District Court of Iowa, Henry County, Iowa, against Local Union 735, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, and against an official of the Union. The Union had previously filed a petition in Case No. 18-RC- 6604, seeking certification by the Board as the exclusive bargaining agent of certain employees of the Employer.' As a result, the Employer, claiming to be a political subdivision exempt under the National Labor Relations Act, instituted the aforesaid State court pro- ceeding to enjoin the Union until the State court had determined the rights and duties of the parties under Iowa law insofar as they pertain to the Employer's duty to bargain with the Union. No response, as provided by the Board's Rules, has been filed by the Union. The Board has duly considered the allegations of the petition. The Board's Advisory Opinion proceedings "are designed primarily to determine questions of jurisdiction by application of the Board's dis- cretionary standards to the `commerce' operations of an employer." 2 The issue presented herein by the Employer -relates to whether it is an "employer" within the meaning of the Act. As this issue does not concern questions of the applicability of the Board's discretionary com- ' We have been administratively advised that the Regional Director for Region 18 has approved the Union's request for permission to withdraw the petition in Case No. 18-RC-6604. 2 Upper Lakes Shipping, Ltd., 138 NLRB 221. 156 NLRB No. 15.