Extract
Culinary Workers, Local 535, 555 (1967)
CULINARY WKRS. LOCAL 535 555
Culinary Workers, Bartenders and Hotel Service Employees, Local 535 , AFL-CIO and Fred A. Vacco. Case 21-CA-6776.May 11, 1967 DECISION AND ORDERBY MEMBERS FANNING, BROWN, AND ZAGORIA On May 26, 1966, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting 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 powers in connection with this case to a threemember panel.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, the exceptions and brief, and the entire record in the case, and finds merit in Respondent's exceptions. Accordingly, the Board only adopts those findings, conclusions, and recommendations of the Trial Examiner consistent with this Decision and Order.We agree with the Trial Examiner that the burden is on the General Counsel to affirmatively establish discriminatory motivation in the discharge of Fred A. Vacco, the alleged discriminatee, and not on the Respondent to disprove it. As the Trial Examiner correctly observes:... Of course, disbelief of the reasons advanced by Respondent [for discharge] does not in itself make out a violation. Unquestionably, as Respondent's counsel points out in his brief, the burden is on the General Counsel to disprove it In our view, however, the Trial Examiner's decision effectuates the very shift in the burden of proof against which he cautions. For example, the Trial Examiner confines his treatment of the General Counsel's case to a summary recitation of record testimony bearing on the efforts of several employees, including Vacco, to secure passage of an amendment to the Respondent's bylaws limiting the power of its secretary-treasurer to hire and discharge business agents. Nowhere does this testimony place Vacco in a position of instigator or leader in the promulgation of the ...See the full content of this document
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