Meat Packers International

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. 222 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