IBEC Packing Co., Inc., 417 (1971)

IBEC PACKING CO., INC. 417

IBEC Packing Company, Inc. and Confederacion Laborista de Puerto Rico. Case 24-CA-2971

December 2, 1971 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS

FANNING AND KENNEDY

On August 24, 1971, Trial Examiner Arthur M.

Goldberg issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions 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 authority in this proceeding to a three-member panel.

The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, IBEC Packing Company, Inc., Mayaguez, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.

r In adopting the Trial Examiner's finding that the dischargee, Carmen Rodriguez, was not a supervisor, we do not rely on the stipulation in the agreement for consent election that leadgirls be included in the unit. The record supports the Trial Examiner's finding that Rodriguez did not exercise any of the indicia of supervisory status set forth in Section 2(11) of the Act.

supervisor and therefore not protected by the Act and that the discharge was effectuated for good and sufficient reasons connected with her employment. Additionally, on the basis of a lack of information, belief, and knowledge, the answer denied that the Umon is a labor organization within the meaning of the Act.

At the opening of the hearing, over Respondent's objections, General Counsel was permitted to amend te complaint in the following respects. First, paragraph IV 'of the complaint, naming alleged supervisory personnel, was amended to add the names of Emma Padilla as forelady and Hiram Diaz as supervisor of the packing and chilling room. Second, a new paragraph IV-A was added alleging that Hiram Diaz, on various dates in July 1970, told employees that if the Umon won the election the plant would be closed. Third, a new paragraph VI-B was added alleging that on July 31, 1970, Forelady Emma Padilla asked an employee if she was going to vote in the election to be conducted that day and told the employee that if she voted for the Respondent she had nothing to fear.

Respondent's answer was amended to include a general denial of these allegations and to assert the further defense that Diaz is a supervisor 'in the same way and to the same extent that Mrs. Carmen Rodriguez was a supervisor.' Finally, the Respondent asserted that if the alleged statements were made they were protected under the freedom of speech provision of the Act.

All parties participated in the hearing in Mayaguez,

Puerto Rico, on May 5 and 6, 1971, and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, and to present oral argument.

Oral argument was waived by all parties and a brief was filed by the Respondent only.

Based upon the entire record in the case, my reading of the Respondent's brief, and from my observation of the witnesses and their demeanor, I make the following:

FINDINGS OF FACT

1. THE BUSINESS OF THE RESPONDENT TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Based upon a charge filed on January 12, 1971, by Confederacion Laborista De Puerto Rico (herein called the Union or the Charging Party) the complaint herein issued on March 17, 1971, alleging that IBEC Packing Company, Inc. (herein called the Company or the Respondent), violated Section 8(a)(3) of the National Labor Relations Act, as amended (herein called the Act). The Respondent's alleged unlawful conduct consisted of the discharge of Carmen I. Rodriguez on January 7, 1971, because of her membership in and activities on behalf of the Union. The Company's answer admitted the discharge but denied all material allegations of the complaint. The answer set up as affirmative defenses assertions that Rodriguez was at all times material herein a IBEC Packing Company, Inc., is a corporation of the Commonwealth of Puerto Rico engaged in the processing and canning of tuna fish at its plant located at Mayaguez,

Puerto Rico. During the year 1970 the Company purchased and had shipped directly to its Mayaguez, Puerto Rico, plant tuna fish' and other materials necessary for the conduct of its business valued in excess of $50,000. During the same period the Company processed and canned tuna fish valued in excess of $50,000 which was shipped to points located outside of the Commonwealth of Puerto Rico.

The complaint alleged, the answer admitted, and I find that the Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for the assertion of its jurisdiction.

194 NLRB No. 65

11. THE LABOR ORGANIZATION INVOLVED Confederacion Labonsta De Puerto Rico admits employees to membership and maintains collective-bargaining relations with a number of employers. The Union complies with the filing requirements of the Labor-Management Reporting and Disclosure Act of 1959. Pursuant to a petition for election filed by the Union the Company, the Union and the Seafarers International Union entered into an agreement for consent election on May 26, 1970,1 under the terms of which the Union participated in a representation election on July 31 seeking to represent the employees of the Company for the purposes of collective bargaining. I find that the Union is, and was at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

HI. THE UNFAIR LABOR PRACTICES A. The Company's Operations The Company employs approximately 400 persons in its Mayaguez plant. Approximately 300 of the employees are production workers assigned to six departments. Only the organization and operations of the packing room, where between 150 and 160 persons including acknowledged supervisors, leadgirls and leadmen are employed, are of significance in this proceeding.

In the packing room the precooked fish is brought from the chilling room2 to tables where employees, working with their hands and knives, clean the fish preparatory to the actual packing. There are a total of three Imes in the packing room. Carmen Rodriguez, the alleged discriminatee, was employed as a leadgirl assigned to line 1 in the packing room. On line 1 three cleaners are assigned to each table and there are a total of 20 to 21 tables in operation at all times depending upon the daily attendance. When the fish arrives at the table on line 1 the first employee, called the 'cleaner,' removes the skin, opens and removes the bones from the fish, and passes it on to the second girl. The second employee at the table, called 'pet food,' removes the blood and meat in which the blood is present and any bones which remain. The third employee polishes the loin of the fish with her hand. As this employee polishes the loin and removes any remaining bones she also removes small pieces of fish which fall off in the polishing operation.

These small pieces of fish are called the 'grated.' The grated appears not only at the polishing stage but in the operation of removing the pet food as well. These small pieces of the tuna are too small to be packed in the loin and are canned separately for use in sandwiches.

After polishing, the loin is placed on a conveyor belt where it is scrutinized by inspectors who report to and are supervised directly by the forelady and assistant forelady.

As the grated accumulates on the table it is put into a loose pile. Carmen Rodriguez, at the time of her discharge, was assigned to the task of going to each of 10 tables in line I Unless otherwise noted all dates herein were in 1970.

2 The chilling room is part of the packing room 3 This description of the packing room operations is based on plant superintendent Seda's testimony 4 While there is evidence that certain of the other leadgirls exercise 1 to inspect the grated. If she found that it was clean and fit for human consumption, without bones or blood, she would then pat the grated into a firm pile and move on to the next table. Rodriguez was followed by a man with a tray who would remove the piles of grated which she had inspected and passed.3

B. The Discharge of Carmen Rodriguez 1. Rodnguez's asserted supervisory status The packing room line of supervision, as testified to by Jaime Seda, the plant superintendent, is head by Rafael Vazquez, the production coordinator who is in charge of the entire packing room, including the chilling room, with responsibility for the cleaning of the fish. Sixto Nieto is Vazquez' assistant. Emma Padilla is the forelady of the packing room and Ines Lebron, with the title of leadgirl, is assistant forelady under Emma Padilla. There does not appear to be any contention that the foregoing named persons are not supervisors within the meaning of the Act.

In addition to the production coordinator, assistant production coordinator, and forelady, there are seven women employed in the packing room who bear the title 'leadgirl' and one male employee, Hiram Diaz, who is the 'leadman' in the chilling room. Included among the seven leadgirls, as noted above, is Ines Lebron, who was designated in Seda's testimony as assistant forelady.

Carmen Rodriguez, the alleged discriminatee, is also included among the seven leadgirls. Respondent contends that as a leadgirl Rodriguez was a supervisor within the meaning of the Act and therefore not protected by the provisions of Section 8(a)(3).4

On May 26 the parties entered into...