National Livery Service, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 698 (N.L.R.B. 1986)

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Livery Service , Inc. and New York Hotel
& Motel Trades Council, AFL-CIO and Jorge
Bottaioli . Cases 2-CA-20519 and 2-CA-20538
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 31 March 1986 Administrative Law Judge
Arthur A. Herman issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Respondent filed a statement in
support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel has excepted to some of the judge 's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings
2 No exceptions were filed to the judge 's conclusion that the Respond-
ent's dispatcher is not a supervisor
We do not rely on the judge 's characterization of certain pre-Section
10(b) background evidence as "nothing more than permissible campaign
comments , not even using to the level of objectionable conduct let alone
Section 8(axl) conduct " We agree, however , that the General Counsel
failed to establish a sufficient connection between the alleged statements
and the Respondent 's March 1984 request that employees disclose their
immigration status
Wendell V. Shepherd, Esq., for the General Counsel.
Sol Bogen, Esq., and Darrell S. Gay, Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge. On
13 August 1984 the New York Hotel & Motel Trades
Council, AFL-CIO (the Union or Council) filed a
charge in Case 2-CA-20519, alleging that National
Livery Service, Inc. (Respondent) violated Section
8(a)(1) and (3) of the Act by causing the U.S. Immigra-
tion Service to arrest and detain employees Caceros and
Fonseca, all for the purpose of threatening and coercing
the employees in the exercise of their Section 7 rights.
On 23 August 1984 Jorge Bottaioli, an individual, filed a
charge in Case 2-CA-20538, alleging that Respondent
caused the U.S. Immigration Service to arrest and detain
Bottaioli for the purpose of threatening and coercing him
in the exercise of his Section 7 rights. On 30 November
1984 an order consolidating cases, consolidated com-
plaint, and notice of hearing issued, but unlike the
charges, the complaint alleges that Respondent violated
the Act by requesting employees to advise Respondent
of their immigration status, by threatening employees
with discharge and adverse legal action respecting their
immigration status if they supported a strike by the
Union , by assigning fewer hours of overtime work to
employees who supported the Union, by imposing a re-
quirement on its employees, as a condition of employ-
ment, that they possess the requisite legal papers respect-
ing their immigration status, and by discharging Caceros
and Bottaioli because they supported the Union. Re-
spondent's duly filed answer denied the commission of
any unfair labor practices.
This case was tried before me in New York, New
York, on 20-22 May and 12 June 1985. On the entire
record, including my observation of the demeanor of the
witnesses and the oral closing argument of Respondent's
counsel, and after due consideration of the brief filed by
the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that Respondent is a New York
corporation engaged in the operation of providing limou-
sine and related services to the general public, and that
annually Respondent derives gross revenues in excess ot
$500,000 from the operation. In addition, Respondent an-
nually purchases products valued in excess of $50,000 di-
rectly from enterprises located outside New York State.
Based on the above facts, which Respondent does not
deny, I find that Respondent has been at all times materi-
al herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges , Respondent does not deny, and
I find that New York Hotel & Motel Trades Council,
AFL-CIO and its affiliate, Local 144, Hotel, Hospital,
Nursing Home and Allied Services Union, Service Em-
ployees International Union, AFL-CIO are labor orga-
nizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As stated above, Respondent provides limousine serv-
ice to the general public to and from New York area air-
ports. It operates a dispatcher's desk in the lobby of the
Doral Hotel, and it maintains an office on the third floor
of the hotel. In addition, it operates a garage in Queens
to house and service the vehicles. At all times material
herein , Respondent employed approximately 30 drivers.
During the summer of 1983, a group of the Employ-
er's drivers got together to discuss their working condi-
tions and decided to seek the aid of a labor organization.
281 NLRB No. 98
NATIONAL LIVERY SERVICE 699
Thereafter , several drivers including Raul Fernandez,
Jorge Bottaioli , Jorge Aguilar, and Roberto Caceros vis-
ited Local 144s offices , and in August 1983 , the Union,
through its affiliate Local 144, began an organizing drive
of all the drivers employed by the Employer . Fernandez,
who later became the shop steward states that he was
the chief organizer of the drivers . Both he and Bottaioli
handed out authorization cards to the drivers.
During the course of the organizing campaign , i.e., the
period between August and 16 December 1983 , the date
of the election , ' Respondent is alleged to have engaged
in activities in opposition to union organization. Inas-
much as these actions are not alleged in the complaint as
violations within the meaning of the Act, because they
are time-barred , I choose not to embellish this report
with the details of these events , at this time, but merely
to make mention of them and to discuss their connection
with later events, infra.
On 16 December 1983 a Board -conducted representa-
tion election took place among Respondent 's drivers, and
on 26 January 1984 the Regional Director for Region 2
issued a Certification of Representative to the Union des-
ignating it as the collective-bargaining representative for
Respondent's drivers.
Shortly thereafter, contract negotiations began and
continued on a fairly regular basis , through about nine
sessions , until August 1984 . The chief negotiators for the
Union were Roy Bloomfield , the regional director of the
council, John Morgano, executive vice president of
Local 144 , and Willie Godwin, a union representative.
An employee committee consisting of Fernandez, Agui-
lar, and Bottaioli was also present . Jerry Lee Sigmund,
Respondent's vice president , 2 and Sol Bogen, Respond-
ent's counsel, were Respondent 's negotiators . The uncon-
troverted evidence established that , in general , the nego-
tiating sessions were conducted on a friendly basis.
Progress was made on noneconomic issues, and griev-
ances of employees were discussed and resolved.3 How-
ever, agreement could not be reached on wages, medical
coverage, holidays, vacations, uniform allowance , and ar-
bitration machinery . And so, in June 1984 , the Union
called the unit employees together to ask them if they
wanted to strike in order to put pressure on Respondent.
The vote was to strike but the union officials felt that
there was not a sufficient number of unit employees
present at the meeting to make a representative showing.
Therefore, another meeting was scheduled for July 1984
for another strike vote . In the meantime , and sandwiched
between the two strike votes, another negotiating session
took place on 24 July 1984 .4 It was at this meeting that
Respondent revised its wage package and presented it
for approval by the Union . The Union then took this
proposal to the unit employees . It was rejected , a second
vote to strike was approved , and the results were com-
municated by Godwin to Sigmund . However , no strike
ever took place, and there were several attempts on both
sides to hold further negotiations . But, Bloomfield
became ill after the second strike vote , and no further
negotiating sessions were held in 1984 despite Respond-
ent's efforts to set up a meeting.5
During the course of these happenings in 1984, the
U.S. Immigration Service stepped into the picture. Ac-
cording to Sigmund 's testimony, an immigration official
came to Respondent's premises at the Doral on 27
March 1984, and told Sigmund that his office had re-
ceived information that Respondent was employing ille-
gal aliens, and that the official wanted to see Respond-
ent's books and records . Sigmund advised the immigra-
tion official that the books and records were maintained
by his accountant . The official told Sigmund to obtain
them and to let the immigration service know when to
come to .see them.6 These incidents prompted Sigmund
to contact his attorney who advised him to cooperate.
The attorney drew up a paper for the employees to fill
out attesting to their citizenship status . Sigmund instruct-
ed the dispatcher to send the drivers up to his office as
they came in. He then informed each one what had hap-
pened and asked them to fill out the form . After two
drivers had signed and while Caceros was filling out his
form, Fernandez came into the office and asked Sigmund
for an explanation. Upon hearing it, Fernandez refused
to sign, instructed the other drivers not to sign , and told
Sigmund he would contact the Union . The Union con-
tacted Sigmund and advised Sigmund to stop the prac-
tice . Sigmund complied and no further drivers were
questioned . Fernandez' testimony comports with Sig-
mund's regarding to the incident, but Fernandez ap-
peared confused when asked when the immigration raid
on the garage took place. At first he said , "I think it was
March , and he said 'one week' before the election." Be-
cause Sigmund's testimony was more straightforward
and appeared more logical , I credit Sigmund , and find
that both raids mentioned above occurred in March
1984.
The next immigration raid occurred on Thursday, 19
July 1984 . It occurred at the Doral. Two drivers, Bot-
taioli and Caceros, were picked up along with a dis-
patcher, Mario Fonseca, because they did not possess the
required work authorizations (green card). They were
kept in custody until released the next evening, Friday,
' A period that preceded the 10(b) period
$ He was Respondent 's president from January 1982 to February 1985.
9 In fact , a grievance involving Bottaioli was resolved at a negotiating
session . It seems that Bottatoli had an accident while driving a company
vehicle in May 1984, Respondent fired him contending that he was at
fault; at the next negotiating session , 2 or 3 days after the incident, the
Union requested Respondent to take Bottaioli back and Respondent com-
plied.
4 On direct examination, Godwin testified that the first strike vote took
place in late June, and the second on 12 July. However , on cross-exami-
nation he recanted the testimony and stated that the second strike vote
occurred at the end of July.
8 There were further negotiations in 1985 at which Respondent made
further concessions . These proposals were to be presented to the unit em-
ployees at two meetings in April 1985 at the Doral . However , only three
employees attended the morning meeting , and only two employees at-
tended the afternoon meeting . And so, the proposals were not submitted,
no further meetings were held, and negotiations and a contract lay dor-
mant up to the present time.
6 Sigmond stated that earlier in March 1984 an immigration official vis-
ited the garage in Queens and took two mechanics into custody. They
were later released and one returned to Respondent 's employ about a
week later. Mechanics are not members of the bargaining unit and are
not represented by any union.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 July. On the following Monday or Tuesday, accord-
ing to Fonseca, Fonseca met with Sigmund and asked
for his job. Sigmund told him that he needed some docu-
mentation to show that he could rehire Fonseca. Where-
upon, Fonseca gave Sigmund a letter from his lawyer
stating that it was not illegal to give Fonseca a job. Sig-
mund verified this with his own lawyer, and rehired
Fonseca with the caveat that Fonseca must fill out an ap-
plication for a work permit.' According to Sigmund,
when Fonseca came to the Doral the Monday or Tues-
day following his arrest, he showed Sigmund "a paper
from his lawyer stating that he had applied for legal
status in the United States." Sigmund verified it with his
lawyer and his lawyer told Sigmund that he had spoken
to Fonseca's lawyer and that Fonseca could go back to
work.
Bottaioli testified that after he was released, he re-
turned to Respondent's premises alone, on Monday, 23
July 1984, and asked Sigmund to take him back. Sig-
mund refused because of the immigration problem, but
told Bottaioli that when he has the authorization work
papers he should come back to the office. Bottaioli
claims that he asked Sigmund how come Fonseca was
taken back, and Sigmund explained that Fonseca had
working papers.
According to Sigmund, Bottaioli and Caceros came to
the Doral on 26 July and asked for their jobs. Sigmund
asked them if they had working papers, and when they
responded negatively, Sigmund said, "Then you can't
work here until you obtain those working papers." When
Bottaioli asked Sigmund about Fonseca, Sigmund ex-
plained and told Bottaioli and Caceros, "Get your papers
and come back and see me."
According to Caceros, he returned to the Doral on
Tuesday or Wednesday after being released and asked
Sigmund if he could have his job back. Sigmund said he
was sorry but that Caceros has a problem with immigra-
tion. Sigmund then told Caceros that when he gets an
authorization to work, to come and see him.
Neither Bottaioli nor Caceros returned again to Re-
spondent until August 1984. According to Bottaioli, he
returned alone in early August and again asked Sigmund
if he was going to give him his job back, and Sigmund
refused. Then Bottaioli asked Sigmund if he gets his au-
thorization for work, would Sigmund take him back, and
Sigmund said "No," that he did not want to see Bottaioli
again in that company. Bottaioli goes on to testify that
he then asked Sigmund for his salary and vacation pay,
and Sigmund agreed to give it to him. However, on
cross-examination, Bottaioli admitted that when he came
to see Sigmund he did not have working papers, and his
purpose for coming was to ask Sigmund to help him fill
out a mortgage application that he had on the purchase
of a home, and to have Sigmund state that Bottaioli was
presently working for Respondent. Bottaioli admits that
Sigmund did this for him. Also, it was not at this August
meeting that Bottaioli asked for salary and vacation pay,
' The General Counsel put in evidence a letter from Immigration and
Naturalization Service attesting to the fact that Fonseca has an applica-
tion now pending and granting him permission to work The document is
marked "Employment Authorized Nov 29, 1984," and permission to
work is valid until 28 May 1985 See G C Exh 10.
but at the first meeting in July. Third, according to Sig-
mund, Bottaioli then asked for his job back, Sigmund
asked if he had working papers. Bottaioli admitted that
he did not, and Sigmund told him he could not hire him.
Bottaioli further testified that he returned once again
to the Doral with Caceros in September 1984. He
showed Sigmund that he now had his working papers,
and that he is giving Sigmund one last chance to hire
him back, or else he is going to the NLRB. According to
Bottaioli, Sigmund then told him that he had received a
letter from the Board, and that he does not want to see
Bottaioli again. On cross-examination, Bottaioli admitted
that when he showed Sigmund his working papers, Sig-
mund told him that there were no job openings because
he had already hired other people to replace them. Sig-
mund's version of the conversation is as follows:
Robert [Caceros] didn't say anything. Jorge [Bot-
taioli] said to me I'm going to give you your last
chance. I have-we have our working papers. We
want our jobs back. This is your last chance.
I said I just hired people. I don't need anybody so I
can't hire you back.
He said I will see you in Court then, and he walked
away.
In addition to the allegations that Respondent refused
to rehire Bottaioli and Caceros because of their union ac-
tivity, the General Counsel also alleges that Respondent
shortened several of the employees' overtime working
hours because they engaged in union activity.
On direct examination, Bottaioli testified that in May
1984 when he looked at his work schedule he noticed
that he had been assigned fewer hours; that normally he
worked between 10 and 12 hours daily, and that now the
schedule only called for 8 hours. He asked dispatcher
Rolando Henao why his hours had been cut, and he was
told that Henao had orders not to give Bottaioli, Agui-
lar, Fernandez, Caceros, and Torres more than 8 hours
of work because these employees wanted the Union. On
cross-examination, however, when Respondent showed
Bottaioli its record, Bottaioli recanted his testimony and
admitted that his hours remained the same throughout
those dates.8 On redirect examination, the General Coun-
sel introduced into evidence Respondent's records cover-
ing the period from 4 July to 21 August,9 showed some
of them to Bottaioli, and thereby was able to get Bot-
taioli to change his testimony to reflect the fact that his
conversation with Henao occurred in early July and not
in May.
The other allegations in the complaint involving al-
leged threats to employees relate to two conversations
that occurred in July 1984. Juan Oronao, a driver, was
hired by Respondent on 20 January 1984. He was not a
union member. In July, when the strike threat loomed,
Sigmund is alleged to have spoken to Oronao at the
Queens garage and asked him what he would do on the
first day of the scheduled strike. When Oronao said he
8 See R Exhs 1-10
9 See G C Exhs 3-9
NATIONAL LIVERY SERVICE 701
would stay home , Sigmund told him that such action
would support the strike . According to Oronao, Sig-
mund then threatened him with discharge if he did not
come to work. On cross-examination , it was revealed
that Oronao had been fired by Respondent on 4 Septem-
ber 1984 because of a problem he had with a dispatcher,
but that after Respondent met with the union delegate
Oronao was put back to work subject to a probationary
period of 30 days . During that latter period , Oronao re-
fused a work order from one of Respondent 's dispatch-
ers, and was subsequently discharged by Respondent on
2 October 1984.10
The second conversation testified to by Oronao is al-
leged to have occurred about a half hour after Sigmund
spoke to Oronao at the Queens garage in July. A driver
named Hugo was being called into Sigmund 's office and
Hugo asked Oronao to act as an interpreter for him. Sig-
mund asked Hugo if he was coming to work during the
strike, and Hugo wanted to know if he would be protect-
ed. Sigmund assured Hugo of protection, promised him
more money , and told Hugo that if Respondent signed a
contract with the Union illegal alien employees would
have to leave their jobs or immigration officials would
pick them up. Hugo told Sigmund that he had to think it
over and he would let him know. On cross-examination,
Respondent introduced Oronao's affidavit into evi-
dence. 11 In it Oronao says, "Hugo told him [Sigmund]
he comes to work. Sigmund told Hugo that he had his
people prepared . Hugo then said that he had a family
and did not want no problems."
Sigmund testified that he spoke to Oronao and Hugo
in July 1984 at the garage , but that it was Hugo who
wanted to talk to Sigmund , and he used Oronao as an
interpreter . According to Sigmund , Hugo said that he
would be coming to work during the strike , if it oc-
curred , but that he was afraid for his family, and wanted
to know what was going to be done about it. Whereupon
Sigmund assured him that he would have some sort of
security for the men, and not to worry about it. Sigmund
states that nothing further was said at the time , and Sig-
mund denies having ever discussed the strike with any
other employees.
Analysis and Conclusions
The General Counsel's initial contention , as stated in
her brief, and as alleged in paragraph 6 of the complaint,
is that Respondent in March 1984 , violated Section
8(a)(1) of the Act when it requested its employees to
advise it, in writing , of their immigration status because
of their membership and support of the Union . In fur-
therance of her contention , the General Counsel alludes
to a course of conduct engaged in by Respondent prior
to the election in December 1983, and prior to the 10(b)
period , and attempts to link such conduct to its action in
March 1984, when it, admittedly , sought out immigration
status information from its employees . Specifically, the
General Counsel adduced evidence from Caceros that
just prior to the election, Sigmund and a dispatcher
named Gomez told him on several occasions that if the
Union won the election Respondent would go broke and
the employees would have immigration problems. The
General Counsel then links that action by Respondent in
December 1983 with Respondent 's action in March 1984
when it sought immigration status information from its
employees . I fail to see the connection and I find no vio-
lation of Section 8(a)(1) of the Act as alleged in para-
graph 6 of the complaint . Assuming arguendo that Re-
spondent engaged in the conduct, testified to by Caceros,
in December 1983, such action , in the heat of an election
campaign cannot be characterized as threats to deprive
employees of their rights, but rather are nothing more
than permissible campaign comments , not even rising to
the level of objectionable conduct let alone 8(a)(1) con-
duct . 112 Besides, the alleged violation that occurred in
late March 1984 was the direct result of two visits by im-
migration officials in March to Respondent's premises
and not at all connected to the preelection comments.
The first visit occurred at the Queens garage in early
March when two mechanics were picked up and de-
tained by immigration , and the second visit occurred on
27 March when an immigration official asked to see Re-
spondent 's books and records . The action then taken by
Respondent, i.e., to ascertain the immigration status of its
employees by having them fill out forms prepared by
Respondent 's attorney , was totally unrelated to any
union activity engaged in by the employees . If Respond-
ent was misguided , and so it would seem , the action was
quickly withdrawn. Certainly, it cannot be said that Re-
spondent was attempting to coerce its employees because
of their union affiliation . What transpired prior to the
election was propoganda rhetoric and long past by
March 1984. By the latter date, Respondent had accept-
ed the Union as the representative of its employees and
was busily engaged in bargaining with the Union. I find,
therefore, that the action taken by Respondent in March
1984 seeking to ascertain the immigration status of its
employees was totally unrelated to their union activity
and not violative of the Act.
In support of the General Counsel' s second contention,
i.e., that Respondent threatened employees with dis-
charge and adverse legal action respecting their immigra-
tion status if they supported a strike by the Union, the
General Counsel relies on the testimony of Oronao, as
stated, supra . As I read the testimony , I am inclined to
credit Sigmund 's version of the incident and not Oronao.
Sigmund denies that he met separately with Oronao, and
I credit Sigmund 's testimony . There was only one meet-
ing, and the statement in Oronao's affidavit, quoted
supra, jibes with Sigmund 's testimony . Oronao appears to
be a disgruntled employee , having been discharged by
Respondent , and bent on seeking some satisfaction from
Respondent 's predicament . Under the circumstances, I
find no statements made by Sigmund to Hugo to be vio-
lative of the Act, and therefore , I shall dismiss that alle-
gation in the complaint.
The third contention of the General Counsel concerns
the allegation that fewer hours of overtime were as-
signed in July 1984, to certain employees , namely, Bot-
10 See R. Exh. 13.
11 R. Exh . 15A. 12 Tri-Cast, Inc., 274 NLRB 377 (1985).
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taioli, Caceros , Fernandez , and Torres, because of their
support for the Union . To prove her point , the General
Counsel relies on Bottaioli 's unrefuted testimony that the
dispatcher, Henao , told him that their hours were cut be-
cause they wanted the Union , and by the introduction
into evidence of Respondent 's books and records for the
period in question . In drawing her conclusion , and de-
spite the fact that no such allegation appears in the com-
plaint, the General Counsel makes the assumption that
Henao is a supervisor within the meaning of the Act, and
thereby attributes Henao's remarks to Respondent. Yet,
the total testimony elicited from the General Counsel's
witnesses , Bottaioli and Caceros , regarding a dispatcher's
supervisory status , consisted of the witnesses saying that
a dispatcher makes up the driver's schedules , gives the
drivers the schedules , posts the schedules , and grants the
drivers time off. I do not find these meager duties suffi-
cient to conclusively demonstrate Henao's supervisory
status . The burden is on the party alleging supervisory
status to prove that it in fact exists,' 3 and I do not be-
lieve that the General Counsel has sufficiently demon-
strated that Henao was a representative of management.
At most, his position was comparable to that of a nonsu-
pervisory leadman . The record merely shows that his
duties were of a routine nature and did not require the
use of any meaningful independent judgment. I conclude
therefore that Henao is not a supervisor within the mean-
ing of Section 2(11) of the Act,14 and I do not attribute
any remarks that he may have made to employees as
binding on Respondent . Absent this assertion , the Gener-
al Counsel's contention must rise or fall solely on the fig-
ures presented in the books and records of Respondent,
and the latter's refutation of the contention on its expla-
nation of the figures . Although the records show, as the
General Counsel contends , a decline in the number of
hours worked by Bottaioli , Caceros, Fernandez, and
Torres during the weeks from 4 through 25 July, as
compared to the weeks from 25 April through 27 June,
the records also show a similar decline for other employ-
ees as well . In fact, a review of the records does not
permit a simple conclusion to be drawn . The amount of
hours worked varied on each day and during each week.
As an example , Fernandez, the leading union advocate,
worked 47-1/2 hours during the week of 25 April, and
56 hours during the week of 4 July ; then his hours de-
clined for a few weeks , but by 1 August he worked 56-
1/2 hours . Absent a satisfactory explanation by the Gen-
eral Counsel , I must accept Sigmund's testimony that as-
signments are given out as needed , and it is the luck of
the draw based on airline schedules , lack of work, and
late arriving flights that determines who works more or
less hours . This, plus Sigmund 's denial that he ever or-
dered a reduction in the number of hours to be worked
by the named four employees , leads me to accept the
fact that no attempt was made to deny or reduce their
overtime . On that basis, I reject the General Counsel's
contention , and find no violation of the Act.
The General Counsel 's final contention concerns Re-
spondent's refusal to reinstate Bottaioli and Caceros after
18 See Thayer Dairy Co., 233 NLRB 1383 (1977)
14 Spector Freight System , 216 NLRB 551 (1975).
they had been detained by immigration authorities on 19
July 1984 . She alleges that Respondent violated Section
8(a)(1) of the Act by discriminatorily imposing a require-
ment on them that they possess the requisite immigration
papers before being permitted to work for Respondent,
and that Respondent violated Section 8 (a)(3) of the Act
by discharging Bottaioli and Caceros for engaging in
union activity . The record is quite clear that when Bot-
taioli and Caceros returned to Respondent 's premises
some time during the week following their detention by
the immigration authorities and asked for their reinstate-
ment , Sigmund told them that he could not take them
back until they had work authorization papers, and
urged them to get the necessary papers . Bottaioli and
Caceros do not dispute the evidence . They did raise the
question regarding Fonseca's reinstatement , but Sigmund
explained the reason for that by stating that Fonseca had
the requisite papers . t s Bottaioli admits that he did not
return to Respondent 's premises until sometime in
August 1984 ; that he still did not have his work authori-
zation papers; that his purpose in coming was to ask Sig-
mund to help him with a mortgage application on a
home he was purchasing; that Sigmund , willingly, com-
plied with Bottaioli 's request; that , at that point , Bottaioli
asked to be reinstated ; and that Sigmund once again told
him he had to have work authorization papers .' a Then,
in September 1984 Bottaioli and Caceros returned with
the requisite papers and asked to be reinstated , and Sig-
mund advised them that there were no openings at that
time because he had just hired three drivers.
The General Counsel attempted to contradict Sig-
mund's assertion that he did not reinstate Bottaioli and
Caceros because he had just hired three drivers by intro-
ducing into evidence Respondent's list of newly hired
employees since 24 July 1984 . 17 The record shows six
new hires between 24-31 July: one on 7 August, two on
28 August, one on 4 September , one on 12 September,
and one on 13 September . Such haphazard hiring seems
to sustain Sigmund's statement that Respondent hires em-
ployees off the street as needed and does not bother to
call former employees . Even if Caceros is to be believed
that the last meeting with Sigmund occurred in August
as stated in his affidavit , dated 6 September , it had to
have been late in August in order to jibe with Sigmund
and Bottaioli's version of the meeting . And, because the
record shows two hires on 28 August , it could have been
those hires that Sigmund referred to. In any event, I find
General Counsel 's Exhibit 13 sufficiently inconclusive to
give it the weight the General Counsel seeks , for even if
the meeting took place in mid -September there were
three hires between 4-13 September.
Therefore , because the record does not help me reach
the conclusion that Respondent treated Bottaioli and Ca-
16 In fact, Fonseca did not have work authorization papers, but he did
have a letter from his attorney assuring Respondent that it was permissi-
ble for Respondent to put Fonseca back to work . I credit Sigmund that
he accepted the attorney's letter in good faith and actually believed that
he could reinstate Fonseca at that time
16 Caceros states that he came with Bottaioli in August , but neither
Bottaioli nor Sigmund place him at that meeting I credit Sigmund and
Bottatoli
17 G.C Exh 13
NATIONAL LIVERY SERVICE 703
ceros in a discriminatory manner because of their union 3. On these findings of fact and conclusions of law and
activity, and I find only that Respondent refused to rein- on the entire record, I issue the following recommend-
state them because of the lack of proper work authoriza- ed 18
tion papers, I conclude that Respondent did not violate
the Act as alleged in the complaint. Accordingly, I shall ORDER
dismiss the complaint in its entirety. The complaint is dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce as
defined in Section 2(6) and (7) of the Act.
2. Respondent has not engaged in any violation of Sec-
tion 8(a)(1) and (3) of the Act as alleged in the com-
plaint.
18 If no exceptions are filed as provided by Sec. 102 .46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.