Calliope Designs

National Labor Relations Board - Board Decisions

May 24, 1991

303 N.L.R.B. 65 (N.L.R.B. 1991)

65
303 NLRB No. 14
CALLIOPE DESIGNS
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative 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 reversing the findings.
2 In agreeing with the judge’s dismissal of the complaint, we find it unnec-
essary to pass on the judge’s alternative finding that the employees did not
engage in protected concerted activity inside the Respondent’s office.
Assuming arguendo that going to the office was protected concerted activ-
ity, and thus that the General Counsel made out a prima facie case by showing
that the Respondent relied on that conduct, we agree that the Respondent suc-
cessfully rebutted the prima facie case under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
The Respondent met its burden by showing that it would have disciplined the
employees in any event for their subsequent conduct, the totality of which ex-
ceeded the protections of the Act by interfering with the Respondent’s inves-
tigation of Hernandez’ accident and its attempt to obtain medical attention for
her. In finding that the employees’ conduct exceeded the protection of the Act
by interfering with the Respondent’s investigation and attempts to obtain aid,
Member Cracraft relies only on the employees’ refusal of at least three direc-
tives to return to work.
1 All dates are in 1989 unless otherwise stated.
2 Based on this admission, I find Respondent is an employer within the
meaning of Sec. 2(2) of the Act, engaged in commerce within the meaning
of Sec. 2(6) and (7) of the Act.
Calliope Designs, Inc. and Sonoma County Indus-
trial Union/S.E.I.U., Local 707. Case 20–CA–
22681
May 24, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 13, 1990, Administrative Law Judge
Joan Wieder issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Karen V. Clopton, Esq., for the General Counsel.
Michael P. Merrill, Esq., of Santa Rosa, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
heard before me in Santa Rosa, California, on February 21,
1990. The charge was timely filed July 26, 1989,1 by
Sonoma County Industrial Union/S.E.I.U., Local 707 (the
Union). The charge resulted in the issuance of a complaint
dated July 26, 1989, as amended, alleging Calliope Designs,
Inc. (Respondent or Company), violated Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, by sus-
pending employees Javier Arreguin, Roberto Garcia, Rafael
Lopez, and Sara Ochoa because these employees engaged in
activities protected by Section 7 of the Act and thereby dis-
criminated against these employees to discourage them from
engaging in concerted protected activities.
Respondent, in its answer to the complaint, as amended,
conceded, inter alia, that it meets one of the Board’s jurisdic-
tional standards,2 but denies committing any unfair labor
practices. Respondent claims these employees were sus-
pended for cause, including engaging in unauthorized activity
while on duty, threatening a supervisor, refusing to follow
orders, and interfering with other employees in the perform-
ance of their duties. Prior to and during the hearing, General
Counsel withdrew several allegations in the original com-
plaint. Respondent, at the close of General Counsel’s case,
moved for dismissal of the remaining allegations averring the
General Counsel had not established a prima facie case. I de-
ferred ruling on the motion to dismiss for consideration in
this decision. For the reasons stated, Respondent’s motion is
granted.
Respondent admits, and I find, the Union is, and has been
at all material times, a labor organization within the meaning
of Section 2(5) of the Act.
On the entire record, including my observation of the wit-
nesses, and after careful consideration of the posttrial briefs
filed by counsel for General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a California corporation, produces Christmas
tree ornaments for wholesale and retail sale. Respondent ad-
mits during June, Pat Bradley was general manager, Lisa
Cacace was production manager, and Steve Vandervort was
a supervisor in the shipping department and they were super-
visors within the meaning of Section 2(11) of the Act and
agents within the meaning of Section 2(13) of the Act.
The Company has about 35 employees engaged in the pro-
duction of ornaments. Some of the production workers do
not speak or understand English. Respondent does not have
a supervisor or other management representative that is flu-
ent in Spanish.
The Union established a collective-bargaining relationship
with Respondent pursuant to a Board-conducted election in
March 1988. The Union and Respondent successfully nego-
tiated a collective-bargaining agreement. Union Representa-
tive Newman Strawbridge was on the negotiating committee
along with Javier Arreguin, Rafael Lopez, Roberto Garcia,
Adolfina (Fina) Hernandez, and Sara Ochoa. There was no
evidence concerning animus during these negotiations.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 One accident occurred when she was behind the swinging door to the ship-
ping department performing assigned work with broken ornaments stored in
that location and was hit by the door which was opened quickly, contrary to
a sign instructing: ‘‘Careful when you open the door.’’ She was struck on the
hand which became bruised. Hernandez also complained boxes were stacked
closely behind her and in the aisles she had to use while carrying boxes, and
knives and blades were left at her work station. Hernandez was very nervous
and concerned she would be seriously injured because of her medical condi-
tion.
4 Rafael Lopez recalled Hernandez saying:
There was conversation among all the co-workers that they had laid off
Maria Garcia and Maria Aginai [phonetic]. And I heard Fina Hernandez
say that she believed that something might happen to her, that they put
knives where she was working and they put boxes behind her. And she
feared something might happen to her.
And since there were no witnesses, the day before these two people
had been laid off, Maria Aginai and Maria Garcia, she thought that some-
thing might happen to her.
They were the only two people related to the Union that at that time
were working in the back.
5 Sara Ochoa indicated the employees did not trust Lupe Ferias as a trans-
lator for she ‘‘is on the side of the company’’ and they wanted a neutral inter-
preter.
B. Events of June 1, 1989
The background facts are largely uncontroverted. The dis-
pute centers around employees’ actions after Adolfina Her-
nandez had an accident the afternoon of June 1, 1989.
1. The meeting during 9:30 break
Routinely, during nice weather, the same group of employ-
ees take their 9:30 a.m. break in the company parking lot.
Also routinely, Respondent held employee meetings every
Thursday; June 1 was a Thursday. In preparation for the
company employee meeting, employees, including Javier
Arreguin, Rafael Lopez, Roberto Garcia, Adolfina Hernan-
dez, and Sara Ochoa discussed some work-related concerns
they wanted to present at the meeting with management.
Adolfina Hernandez was a principal speaker at the parking
lot meeting which was attended by at least 10 employees, all
union members; including all the alleged discriminatees.
Usually the union members take their breaks together.
Adolfina Hernandez had recently suffered a heart attack and
was taking a blood thinner which created an expectable con-
cern of being injured. Respondent knew of her medical con-
dition and the dangers of her bleeding while on the medica-
tion to prevent blood clots. Adolfina Hernandez related to
her coworkers during the morning break that she had recently
had a series of accidents in the past 5 days at work which
she felt were not ‘‘normal.’’3 She felt their working condi-
tions were dangerous. Adolfina Hernandez also told her col-
leagues to recall when she wished to return to work, Re-
spondent did not want her to return to work.4
Also discussed was the employees’ hope a translator
would attend the meeting with management. At the prior
Thursday employee meeting Respondent had been requested
to employ an interpreter so the Spanish-speaking employees
could readily communicate their concerns to management.
On occasion Adolfina Hernandez acted as translator but felt
inadequate and unable to achieve clear communications be-
tween management and employees. Adolfina Hernandez
hoped a translator would attend the employee meeting so she
could explain her concerns about safety to management. The
services of a translator were also desired by the Spanish-
speaking employees so they could understand what manage-
ment was saying to them.
2. Company meeting at 9:45
This regularly scheduled meeting was attended by about
40 people including most of Respondent’s managers. Patti
Bradley inquired if any employees had a problem, that they
should discuss their problems. Since there was no interpreter,
Adolfina Hernandez and Lupe Ferias acted as interpreters5
and Adolfina Hernandez said:
‘‘Patti,’’ I said, ‘‘Since last week, in the meeting, we
asked you for interpreter. And you promised to have it
this time. So I really—the peoples, the workers, and I,
we really want it interpreted today. Because there’s
some very important things that we have to talk
about.’’
Patti Bradley replied Respondent could not have an inter-
preter that day but may have an interpreter at the meeting
next week. Adolfina Hernandez then stated:
[In English] I said, ‘‘Patti, like I said, this is a very im-
portant meeting. These things that happen, then, it’s
very important the office know about it because I ask,
I have orders for Steve—Steve say that anything wrong
in the back room, there’s no way that I can go in the
office and explain it. Because we have to go only to
Steve and it’s—this is a very important thing that I
have to say.’’
And then she say, ‘‘Well, I’m sorry. Maybe we have
to wait for the next meeting.’’
And I still insist her that we need an interpreter. And
even I said, ‘‘Patti, if we have to pay the interpreter,
we pay half and then the—you—the company can pay
half. And if they no have the interpreter right now,
we’ve not been no good for have the meeting today.’’
And that’s all.
I only told that to Patti. I also said it in English,
‘‘Patti, the workers have a very important things, too,
other than me, that we have to tell the company. Can
I bring—can we bring somebody for interpreting in this
meeting, because we want to have it today.’’
And she said, ‘‘No.’’ They have to have an inter-
preter what—she mentioned something like a license
for interpreter. And I said, ‘‘Well, we have to wait, I
guess.’’ That’s all we talking about in the meeting.
3. The accident
According to Adolfina Hernandez, shortly after lunch, as
she was working in the storeroom, she needed an ornament
located high on a shelf and asked the storeroom supervisor,
Steve Vandervort, for assistance. Steve Vandervort climbed
a ladder and Adolfina Hernandez stood next to the ladder so
he could hand her the box. The were three boxes stacked on
each other on the shelf. Instead of handing her the top box
and then the middle one, Steve Vandervort pulled out the top
two at one time. Adolfina Hernandez told him it was dan-
gerous and he replied ‘‘That’s okay’’ and continued pulling
out the top two boxes. He could not handle the weight and
the top box fell hitting the left side of Adolfina Hernandez’s
67CALLIOPE DESIGNS
head, knocking her to the floor and causing her left shoulder
to hit an iron railing.
Steve Vandervort climbed down the ladder and apologized
to Adolfina Hernandez. She replied:
Yes, you know that’s what happen, because I told
you be careful, that was dangerous. And you go ahead
and do it anyway. You don’t care what it’s doing. You
do it on purpose.
Steve Vandervort denied he meant to cause an accident and
then lifted her up repeatedly saying he did not mean to do
it, it was an accident. Steve Vandervort then accompanied
Adolfina Hernandez to the office of Lisa Cacace, passing
through the production area. Adolfina Hernandez was dis-
traught and many of her coworkers followed her to the of-
fice. Respondent claims it was the actions of the alleged
discriminatees while Adolfina Hernandez was in the office
that led to their suspensions.
When she was in the office, Adolfina Hernandez remained
very upset. Lisa Cacace attempted to ascertain what oc-
curred:
And the more the people in the room got louder, the
more hysterical she got. And I was worrying about her.
She was—she looked really shaken up. And I knew she
had a heart problem. And I was really afraid that some-
thing was going to happen.
And so, Fina started talking to me about Steve and
Steve was still sitting there, but she was talking about
him like, ‘‘He knows if I bleed that I’ll die,’’ and that,
‘‘He keeps trying to hurt me,’’ and that, ‘‘This is the
third time I’ve been hurt back in shipping.’’
And then she started to tell me about—the boxes
were placed in front of her way on purpose in the ship-
ping area and she almost tripped and hurt herself then.
And that people had hit her with the door. And that the
chair was put in her way on purpose. And I kept just
saying, ‘‘Please, calm down. Don’t worry about it now.
We’ll take care of that later. Just calm down for now.
Patti will be right back.’’
Between 8 and 12 employees congregated in and/or
around Lisa Cacace’s small office. I reach this conclusion
based on the credited evidence, including the testimony of
Lolita Peter, a former employee who did not have any role
in the incident and was a disinterested witness. She testified
in a straightforward and convincing manner.
a. Sara Ochoa
Sara Ochoa has worked for Respondent since August 28,
1978, as an ornament maker. She was suspended effective
June 5, 1989. The personnel change report stating the reason
for the suspension as follows:
This suspension is in regards to the following infrac-
tions of Calliope’s company’s policies. . . . Infraction
of Employee Conduct #5, #14 and #16.
Employee Conduct rules 5, 14 and 16 provide:
5. Engaging in unauthorized activities while on duty,
such as horse play, any unsafe activity, gambling,
sleeping, using company materials and equipment to
make ornaments or boxes for personal use.
14. Failure to complete work as assigned by super-
visory [sic], refusal to follow orders, or failure to meet
standard of quality.
16. Interference with other employees in the per-
formance of their duties.
Ochoa was on the union negotiating committee, partici-
pated in the strike against the Company, and assisted co-
workers with the knowledge and consent of the Union. After
lunch on June 1, Ochoa saw Adolfina Hernandez crying and
being escorted by Steve Vandervort who was holding her
hand.
And I got up and I asked, ‘‘What happened to you,
Fina?’’
And she said, ‘‘He dropped a 40-pound box on my
head.’’
And I said to her, ‘‘That’s what they wanted. They
wanted to do you in.’’
Q. Do you recall exactly what you said when—when
you saw Fina come in?
A. I was surprised. I got up and I said . . . ‘‘You
jerks, that’s what they wanted to do, do you in. That’s
why they fired Maria Garcia, Maria Savala, so that you
wouldn’t have any witnesses.’’
None of Respondent’s supervisors understood these com-
ments.
Sara Ochoa admitted telling the other workers: ‘‘To get up
and to let us go see what had happened with Fina. But when
I told them, when I turned around and told them that, they
had already gotten up.’’ She also admitted telling them to
stop working. Ochoa followed Steve Vandervort and
Adolfina Hernandez to the office of Lisa Cacace. Other em-
ployees also left their work stations to follow Adolfina Her-
nandez to the office and Sara Ochoa, Roberto Garcia, Rafael
Lopez, and Javier Arreguin went into the office in addition
to Adolfina Hernandez and Steve Vandervort. Other employ-
ees left their work stations and gathered outside the office.
Adolfina Hernandez and Steve Vandervort were giving their
respective versions of the incident to Lisa Cacace. Lee
Farrell then entered the office and asked for a recitation of
the accident. A minute or two after the employees arrived at
the office, Lisa Cacace said: ‘‘This is not your problem. This
is a problem between Fina and Steve. And you go to work.’’
Sara Ochoa did not obey this directive but replied, in Span-
ish, ‘‘Fina’s not well and we can’t concentrate on work,’’
and Fina told Lisa what Sara Ochoa had said.
After some more comments, Lisa Cacace left her office to
get Patti Bradley. According to Sara Ochoa, Lisa Cacace
made only one request for the employees to return to work.
Lisa Cacace also asked all the employees gathered in and
around her office that she did not want them trying to intimi-
date Steve Vandervort. When Patti Bradley arrived she also
asked the employees to return to work. According to Sara
Ochoa, Patti Bradley asked the employees only once to re-
turn to work, and the employees did immediately respond to
her directive by returning to work.
According to Lisa Cacace, when the employees arrived at
her office, crowding in and around a small area, Roberto
Garcia was saying:
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Adolfina Hernandez testified:
A. Yes. I heard another conversation where Lisa told them to go to
work. And Sara answered—in Spanish, Sara explained to me so that I
would say it to her in English, please.
[In English] I tell Lisa, ‘‘Lisa, Sara said that she can’t concentrate on
work because whatever happened to me, she want to know first what
happened— what’s going to happen with myself.’’
Q. And what was Lisa’s response?
A. She again said to go back to work. And then I repeated that to Sara.
Q. And did Sara go back to work?
A. At that time, Patti was coming back and they again were told to
go back to work. And they returned.
And then Patti said it was a volunteer who wanted to accompany her
to the hospital, because I didn’t want to go just with them. And Rafael
answered that he would go.
7 I conclude that Adolfina Hernandez was not credible at times; her de-
meanor indicated she was trying to protect her colleagues when asked ques-
tions she perceived could do them harm. One example of her lack of candor
was she claimed Lisa Cacace asked the employees to return to work only once
but her testimony, when she was giving a narrative of what occurred, clearly
indicated Lisa Cacace asked the employees to return to work at least twice.
Accordingly, I credit Adolfina Hernandez’ testimony only when it is contrary
to the interests of her coworkers.
that it wasn’t an accident and that he had tried to kill
Fina, that Steve had tried to kill Fina. And I looked up
at Roberto and I said, ‘‘Roberto, are you accusing Steve
of trying to murder Fina?’’ And he said, ‘‘Yes. If Fina
says that he tried to kill her, he tried to kill her.’’
And I looked back and Sara nodded—and Rafael—
were nodding in agreement. And, at that point, there
was a lot of conversation. There was a lot of movement
within the room.
These employees were speaking very loudly in Spanish and
they appeared very upset. Lisa Cacace kept warning every-
one to be quiet for they were making Adolfina Hernandez
more upset, she ‘‘got hysterical and continually cried.’’ Ac-
cording to Lisa Cacace:
And, at this point, I realized I needed to break the
group up. And the best thing to do would be to get her
alone or calmed down, at least. And I asked everybody
to please leave the office, that it was time to go back
to work and that we would take care of this situation,
but, ‘‘you had to leave— give me some room. Give me
some time alone with Fina to calm her down then I
could find out what happened, find out if she was
okay.’’
Steve asked, at this same point, he was saying, ‘‘Can
we have some privacy so we can get to what actually
happened.’’ And let’s, you know, get on with it instead
of just feeding into her hysteria.
The employees did not return to work and Adolfina Her-
nandez said: ‘‘No. Please don’t leave me alone. I don’t want
to be alone. These people are here for me and they’re on my
side and I don’t want to be left alone.’’ Lisa Cacace then of-
fered to let one of Adolfina Hernandez’ coworkers stay with
her. Adolfina Hernandez kind of pointed to Roberto Garcia
but no one left the office so Lisa Cacace said: ‘‘Please.
Would you guys just leave. Go back to work. We’ll take care
of this situation.’’ Again, no one left the office.
Adolfina Hernandez admitted hearing Lisa Cacace twice
direct the employees to return to work and Adolfina Hernan-
dez interpreted her directions, and then Patti Bradley came
and again instructed the employees to return to work.6 Al-
though Adolfina Hernandez claimed the employees at that
time returned to work, I find, based on the credited testimony
of Patti Bradley and Lisa Cacace that they did not obey these
directives.7 Further, based on my observation of the alleged
discriminatees, I find they understood the repeated directives
to return to work; they all had sufficient understanding of
English to understand these directives, as they indicated in
their testimony.
Lisa Cacace then tried to ascertain what happened and as
Adolfina Hernandez repeatedly claimed Steve Vandervort
tried to kill her, the crowd in and around the office became
more upset and vocal. After some comments, which Lisa
Cacace felt were threats, as discussed below, Patti Bradley
arrived, pushing her way through the crowd. Patti Bradley di-
rected Adolfina Hernandez and Steve Vandervort to stop ar-
guing and asked Adolfina Hernandez if she would like to go
to a hospital; she said yes. Patti Bradley then said:
‘‘You guys, stop arguing. Everybody go back to work.
Let me get some room in here. Let me try to get to
Fina and try to calm her down. She needs room to
breath. Go back to work.’’’ And nobody moved again.
Patti Bradley left the office to get Adolfina Hernandez’ in-
surance file and when she returned, Javier Arreguin, Rafael
Lopez, Roberto Garcia, and Sara Ochoa were still in Lisa
Cacace’s office. Patti Bradley described Sara Ochoa’s activi-
ties as follows:
And Sara Ochoa was also throwing her hands up and
down, but she was speaking in Spanish, so I don’t
know what she was saying, and—but she was very loud
and—you know—with her arms—you know—flying
here and there.
And then they would communicate excitedly—you
know—loudly, to each other at certain points, and
then—then in English, they’d make those accusations.
It was determined Rafael Lopez would go with Adolfina
Hernandez, and only after they were helping Adolfina Her-
nandez to the car did the crowd start to disburse a bit, so
Lisa Cacace again told them they could go back to work.
According to Patti Bradley’s testimony, after her second di-
rective to disperse and return to work, all the employees but
Javier Arreguin, Sara Ochoa, Rafael Lopez, and Roberto
Garcia had left the office area. I credit Patti Bradley’s testi-
mony based on her open and honest demeanor. She readily
recalled the events and her testimony was inherently consist-
ent. In contrast, Sara Ochoa did not appear candid and did
not readily admit to conduct other employees attributed to
her on June 1.
Based on their direct and open demeanor, I credit the testi-
mony of Lisa Cacace and Patti Bradley they directed the em-
ployees, including Sara Ochoa, to return to work, and Sara
Ochoa, by her own admission refused to follow their direc-
tives. I also find Ochoa was not authorized to be at Lisa
Cacace’s office and her presence interfered with Respond-
ent’s investigation of the accident and obtaining medical
treatment for Hernandez.
69CALLIOPE DESIGNS
b. Javier Arreguin
Javier Arreguin is still employed by Respondent as an or-
nament maker. He has been active in the Union; he was a
member of the negotiating committee and participated in
picketing during the strike. He was suspended from June 5
through July 3, 1989, because of his ‘‘indecent’’ conduct on
June 1. The Employee Conduct rule violations cited in his
personnel change report are numbers 5, 9, 14, and 16. Rules
5, 14, and 16 are quoted above. Rule 9 provides:
Indecent conduct such as threatening, coercing, or use
of abusive/offensive language toward fellow employees,
supervisors or customers, on company property or while
on duty. Overly loud talking or yelling is prohibited in
the factory. Radios must be used with earphones only.
Javier Arreguin saw Adolfina Hernandez and Steve
Vandervort come out of the shipping department and
Adolfina Hernandez was accusing Steve Vandervort of drop-
ping a box of ornaments on her head. Ochoa said: ‘‘Yes,
This is what these jerks wanted, to do you in.’’ He got up
and followed Adolfina Hernandez and Steve Vandervort to
the office for he was concerned about what happened to
Adolfina Hernandez. Javier Arreguin claims he just stood in
the doorway to the office and also claims he returned to
work when asked by Lisa Cacace, but he admits returning
to the office when Lisa Cacace went to another office. Javier
Arreguin claimed he was not in the office, but this assertion
is contradicted by Roberto Garcia and others, including Lisa
Cacace, whom I find credible for the reasons stated.
According to Javier Arreguin, when he saw Adolfina Her-
nandez coming out of the supply room, crying and claiming
Steve Vandervort dropped the box on her head on purpose,
that he tried to kill her, Arreguin became ‘‘angry.’’ In the
office, Adolfina Hernandez continued claiming Steve
Vandervort dropped the box on her head on purpose and
Javier Arreguin admitted he remained angry. He admitted
Steve Vandervort looked frightened from the time he ob-
served him leading Adolfina Hernandez from the shipping
area. Javier Arreguin admitted he did not recall some of the
events and ‘‘forget[s] things.’’ He admitted saying to Steve
Vandervort:
A. After, I turned back and I saw that Lisa was not
in the office. Steve and Fina were there and I don’t re-
member if somebody else—but there were no Ameri-
cans. And then I told Steve—why had he done that?
That that wasn’t a good thing to take it off against a
woman, that there were men there that could help him
if he had any problems against the Union.
Q. Did you say anything else to Steve?
A. No. He just said to me that he didn’t understand.
And I said to him, ‘‘Yes, you understand.’’
In his affidavit, he admitted his statement was a threat.
Javier Arreguin claimed his affidavit was incorrect and
should have said he did not threaten Steve Vandervort and
his statement was ‘‘We are a lot of men that can help you.’’
This statement is highly improbable in the circumstances.
Javier Arreguin admitted waiting until Lisa Cacace left the
office to make his statement, which is not an act bespeaking
his claim of a friendly suggestion. He also claims he returned
to his workplace as soon as he saw Lisa Cacace and others
returning, again not an act of reflecting guiltlessness. The af-
fidavit, dated June 23, 1989, was given at a time much closer
to the events and when Javier Arreguin’s recall should be
fresher and thus probably clearer and more accurate. I there-
fore credit the version of Javier Arreguin’s actions and state-
ments given in the affidavit as follows:
I was angry because Fina had said that Steve had drop-
ped [sic] the box on her head. I thought he had done
it on purpose. I was angry because we like Fina—she’s
very nice to us and we were worried because of what
had happened. I heard Fina say to Steve, ‘‘You did this
on purpose.’’ Steve said, ‘‘No, I didn’t.’’ They said this
back and forth—Steve and Fina, and then Lisa said,
‘‘Hey, everybody, go back to work.’’ I left and returned
to my work table in the production area. I was still
angry, I waited until Lisa left her office and went into
the main office. Steve was still in Lisa’s office, along
with Fina, and other, Mexican employees. I returned to
Lisa’s office, and stood in the doorway. I say to Steve,
‘‘Steve, this is not right—doing this to a lady isn’t
right. If you have something agains t us, don’t take it
out on a woman—take it with a man—we have a lot
of men here who can take care of you if you want it.’’
He goes, ‘‘What, I don’t understand.’’ I said, ‘‘You un-
derstand.’’ I then saw Lisa and others from the front of-
fice returning to Lisa’s office, and I returned to my
worktable.
What I said to Steve was a threat—he was scared
and confused.
Javier Arreguin could read the quoted portions of the affi-
davit during the hearing and his claim that there were several
incorrect statements in his affidavit is not credited based on
demeanor as well as the probabilities indicated above. Javier
Arreguin did not appear candid and forthright when he dis-
claimed the accuracy of his affidavit. Further Rafael Lopez
corroborated the affidavit version when he testified as fol-
lows:
Q. Do you remember exactly what Javier said?
A. That if he—well, that if he had problems with
somebody from the Union, that he should settle matters
with one of the men of the Union, not the women.
Q. Was the statement made to Steve by Javier that
‘‘we had men that can take of this?’’
A. Yes, something like that.
Q. How far was Javier from Steve when he said this
to him?
A. Some three feet distance.
Lisa Cacace claims she had not left the office until after
Javier Arreguin threatened Steve Vandervort, testifying:
And, at this point, Javier was pacing in and out of
the office, really nervously. And it was making me real-
ly nervous because everybody else was moving around,
too, and everybody was really angry and loud. And
Javier kept saying, ‘‘Why did he have to take it out on
Fina. If he doesn’t like the Union, why does he take
it out on her? Why does he take it on the ladies? He
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Adolfina Hernandez also admitted that Steve Vandervort reacted to this
statement by turning to Lisa Cacace and saying: ‘‘Lisa, Lisa, you hear that?
shouldn’t take it out on the ladies. We have guys here
that take care of ’em.’’
And, at that point, I was terrified. I had to get out
of the office. And all I thought of was getting out of
there, so I jumped up and ran out of the office. And
I went into the back office, where Patti was on the
phone.
And I said, ‘‘Patti, please don’t leave.’’ I said, ‘‘I’m
scared something’s going to happen. I’m afraid for
Steve.’’ I was afraid for myself.
Lisa Cacace told Patti Bradley of Javier Arreguin’s actions
and statements after Adolfina Hernandez was taken to the
hospital. Javier Arreguin’s affidavit is further corroboration
of Lisa Cacace’s testimony. I credit Lisa Cacace’s version of
Arreguin’s actions based on her corroborated testimony and
her demeanor, which was free of artifice and indicated can-
dor. Accordingly, I find Arreguin angrily threatened Steve
Vandervort, saying: ‘‘We have lots of men who can take
care of you if you want it.’’ I further find Lisa Cacace told
Patti Bradley Javier Arreguin made these comments and indi-
cated she was very intimidated by them and Javier
Arreguin’s demeanor. She also credibly testified Javier
Arreguin was in her office hovering over Steve Vandervort
when he made the above-quoted statements. Based on the
credited testimony, I further find Javier Arreguin also vio-
lated Respondent’s rules by going to and remaining at Lisa
Cacace’s office without authorization, refusing directives to
leave the office and return to work, and interfering with Re-
spondent’s investigation of the accident and obtaining medi-
cal treatment for Hernandez.
c. Rafael Lopez
Rafael Lopez left Respondent’s employ voluntarily. While
working at Respondent he was active on the union negotiat-
ing committee. He also was very active in representing the
employees’ concerns at the weekly meetings Respondent
held every Thursday. Rafael Lopez was suspended for 30
days effective July 5, for the same infractions of employee
conduct as Javier Arreguin.
At one point Patti Bradley asked for volunteers to accom-
pany Adolfina Hernandez to the hospital and Rafael Lopez
volunteered. Rafael Lopez admitted he did not leave the of-
fice when directed and did not recall Lisa Cacace giving
such a directive before Patti Bradley arrived. He also admit-
ted during the incident in the office he believed Steve
Vandervort intentionally dropped the box on Adolfina Her-
nandez. He testified:
A. There was a moment there when it was Lisa and
Fina and myself and Steve. And Steve was questioning
Fina and he would say that it had been accident. Steve
would say this to Fina, that it had been an accident.
And then I told Steve that it wasn’t the moment to
put questions to Fina, because she was not well.
Q. And what did Steve say to you?
A. I repeated this three times. And three times he did
not listen.
According to Lisa Cacace, whom I have found to be a
credible witness and who related her version of the events
to Patti Bradley and the other supervisors who made the de-
cision to suspend Rafael Lopez, as follows:
And Rafael was pacing back and forth, nervously.
And suddenly, he said, ‘‘Don’t worry, Fina.’’ That,
‘‘We have guys here that will take care of this.’’
And I suddenly realized that the situation was out of
hand and I was out of control and that I could not deal
with the situation because they weren’t listening to me.
So, I looked at Shona, who was still sitting in the
same place. And I said, ‘‘Shona, go get Patti.’’
I conclude Rafael Lopez said ‘‘we will take care of this’’
in a manner that was clearly threatening in the described cir-
cumstances. I further find that he, like Sara Ochoa, also vio-
lated Respondent’s rules by going to and remaining at Lisa
Cacace’s office without authorization, refusing directives to
leave the office and return to work, and interfering with Re-
spondent’s investigation of the accident and obtaining medi-
cal treatment for Hernandez.
d. Roberto Garcia Flores
Roberto Garcia is also an active member of the Union,
claiming without refutation that he was the ‘‘founder of the
Union’’ at Respondent. He also was a captain on the picket
line during a strike at the Company and participated as a
member of the Union’s negotiating team. He was suspended
for 30 days effective June 5, for the same violations of the
employee conduct as Javier Arreguin and Rafael Lopez,
quoted above.
He admits following Adolfina Hernandez and Steve
Vandervort to the office on June 1. He also admitted he did
not recall the events of June 1 very well. Lisa Cacace clearly
recalled the following:
And Steve was immediately saying, ‘‘Well, it was an
accident, Fina, that she thinks’’—he was talking to me
and he was saying, ‘‘she thinks I did it on purpose.
And she thinks I’m trying to kill her.’’
And I was just amazed and I said—at that point, Ro-
berto said that ‘‘It wasn’t any accident, that he’s trying
to kill her.’’ And Roberto was standing directly next to
Fina, at this point.
A. Roberto said, at one point, while Patti was there,
that, ‘‘Don’t worry, Fina’’—you know—‘‘we have
guys that’ll take care of this. Don’t worry.’’
According to Patti Bradley, Roberto Garcia said to Steve
Vandervort ‘‘We know how to take—you know—care of
men, or people like you.’’ Rafael Lopez admitted Roberto
Garcia said to Steve Vandervort ‘‘that if he had a problem
with a person from the Union, for him not to take revenge
or to hurt the women, that there were men, and if he had
any problems with somebody from the Union.’’ Roberto Gar-
cia was within 3 feet of Steve Vandervort. Adolfina Hernan-
dez also recalled Roberto Garcia saying to Steve Vandervort:
‘‘Why you do that to her? If you have something against the
Union, why do you not wait outside and tell us, men to men,
not a man to a woman?’’8 I find Roberto Garcia refused to
71CALLIOPE DESIGNS
You hear that? He tried to—[in Spanish]—well, he intimated that he was
being threatened.’’
9 I also find Roberto Garcia was not candid in his testimony. He claimed
Steve Vandervort was laughing and appeared calm, while all the other wit-
nesses admitted Steve Vandervort appeared pale and at least very concerned
if not upset and scared.
return to work as directed and made threats to Steve
Vandervort while they were in Lisa Cacace’s office waiting
for Adolfina Hernandez to be taken to the hospital. He ex-
hibited considerable hostility toward Steve Vandervort, ad-
mitting he asked Lisa Cacace if Steve Vandervort ‘‘has au-
thorization to give Adolfina Hernandez a hard time.’’9 More-
over, I find he violated Respondent’s employee conduct by
also going to and remaining at Lisa Cacace’s office without
authorization, refusing directives to leave the office and re-
turn to work, and interfering with Respondent’s investigation
of the accident and obtaining medical treatment for Hernan-
dez, threatening Vandervort.
e. Other considerations
Lisa Cacace described Steve Vandervort as being as white
as a ghost and shaking like a leaf after the threats, so she
took him out of the office and sat him down in a back office,
then returned to her own office. Steve Vandervort, who was
discharged from Respondent for failing to meet the require-
ments of his probation, testified convincingly that while he
was in Lisa Cacace’s office, the alleged discriminatees sur-
rounded him and spoke to him in loud voices. They spoke
to one another in Spanish and Steve Vandervort did not un-
derstand Spanish, however certain statements were made to
him in English, including accusations that he tried to kill
Adolfina Hernandez. He also testified Roberto Garcia, who
was within a foot of him and appeared angry, his teeth were
showing, said: ‘‘You shouldn’t pick on the ladies. If you
don’t like the Union, you should come to us. Why are you
picking on the ladies?’’
Another employee, whom he could not identify, came up
to him and said: ‘‘We have guys here that are going to take
care of you. You shouldn’t have done this to a lady.’’ It was
at this point that Lisa Cacace took him out of the office.
Steve Vandervort is 5’3’’ tall and weighs 115 pounds. Ac-
cording to Newman Strawbridge: Rafael Lopez is about 5’1’’
and weighs about 140–150 pounds; Javier Arreguin is be-
tween 5’1’’ and 5’3’’ and weighs about 150 pounds; and,
Roberto Garcia is between 5’1’’ and 5’2’’ and weighs about
140 or 150 pounds. I find the alleged discriminatees intimi-
dated Vandervort with their actions and threats.
After Adolfina Hernandez was sent to the hospital, Patti
Bradley went out on the factory floor and informed the em-
ployees she was on her way and Steve Vandervort was being
sent home for the rest of the day. Steve Vandervort was sent
home at about 2:15 p.m. Lisa Cacace and Patti Bradley made
some notes after the incident. Patti Bradley and Lisa Cacace
were upset about the incident, both the assertions of dan-
gerous working conditions and what they considered threats
made to Steve Vandervort. They decided to hold a meeting
with Javier Arreguin, Sara Ochoa, Rafael Lopez, and Roberto
Garcia.
4. The 4 p.m. meeting on June 1
After discussing the incident in the office and making their
notes of what they recalled hearing in the office, Patti Brad-
ley and Lisa Cacace decided to call Javier Arreguin, Sara
Ochoa, Rafael Lopez, and Roberto Garcia into the office to
investigate their actions earlier that day. At or about 4 p.m.
they called the four employees into Patti Bradley’s office and
the meeting began with Lisa Cacace reading some of the
statements they had written down. Debbie Shaw acted as in-
terpreter. For example, Lisa Cacace asked what was meant
by ‘‘we can take care of people like you.’’
According to Patti Bradley, whom I have previously found
to be a credible witness, Roberto Garcia denied his state-
ments meant he would harm Steve Vandervort but he ac-
cused Steve Vandervort of intentionally harming Adolfina
Hernandez. Patti Bradley also credibly recalled,
And Sara said, ‘‘Yes, at first we did say that he was
trying to kill her, but we just—but we were just too ex-
cited. We all talked about it and we were just too ex-
cited.’’
Javier said that—that he didn’t mean to kill her
Steve Vandervort—that he didn’t mean to say that he
would kill her, he didn’t want to go to jail, no way.
The alleged discriminatees all testified that during the 4
p.m. meeting, they denied threatening Steve Vandervort ear-
lier in the day but admitted they were questioned if they had
threatened Steve Vandervort earlier in the day. Javier
Arreguin admitted the employees were asked if they had
threatened Steve Vandervort and that they were told Re-
spondent had to send him home because one of them said
‘‘they were going to kill him.’’
The meeting was then opened to discussions relating to the
employees’ concerns, including safety; how the shipping de-
partment was dangerous for Adolfina Hernandez who had
suffered several accidents since her return to work only 2
weeks before the latest accident. The employees also men-
tioned Steve Vandervort disliked the Union and was taking
it out on Adolfina Hernandez; he did not want Adolfina Her-
nandez to return to work and ordered her not to discuss her
problems with higher management, but to come to him.
Rafael Lopez then discussed how working conditions and re-
lationships had deteriorated since the strike. For example, the
bathrooms were locked. Rafael Lopez complained the owners
of the Company were less available to the employees; and,
they hired supervisors that did not have the requisite experi-
ence and knowledge of the products to perform well. They
also discussed wages.
C. Events of June 2
Respondent requested Steve Vandervort to make notes of
the incident and on June 2, Patti Bradley and Lisa Cacace
went to the homes of Steve Vandervort and Adolfina Her-
nandez to interview them about the accident and events oc-
curring in Lisa Cacace’s office. Respondent had asked Steve
Vandervort to stay home the day after the accident until it
could be determined how volatile the situation was and if it
was appropriate for him to return to work. Steve Vandervort
had written down his recollection of the events so they took
that memorandum and went to Adolfina Hernandez’ home.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Strawbridge identified Kehoe as a professor at the union school whom he
felt was a more capable interpreter than he, so he asked him to accompany
him to Hernandez’ house on June 2.
At Adolfina Hernandez’ home they were met by Newman
Strawbridge and Ed Kehoe10 of the Union who were asked
by Adolfina Hernandez to be present when Respondent inter-
viewed her and to act as a translator. Respondent indicated
they felt the presence of union agents was a barrier to the
interview, and they left without getting a statement from
Adolfina Hernandez.
D. The Events of June 5 and 6
On the following Monday morning, June 5, one of the
owners of Respondent, Stephanie Eddy, called a management
meeting which was attended by Patti Bradley, Lisa Cacace,
David Salm, and Lee Ferro. Patti Bradley wanted to dis-
charge those employees she felt threatened Steve Vandervort
because: ‘‘I felt that their behavior was so inciteful [pho-
netic] and caused so much disruption that I felt that they
should be all terminated.’’ Stephanie Eddy and her husband
Dorr Eddy decided to hold a management meeting to deter-
mine what, if any, discipline should be imposed. At the
meeting it was decided that Javier Arreguin, Rafael Lopez,
and Roberto Garcia would be suspended for 30 days and
Sara Ochoa for 2 weeks because they could not determine
if she made any threats since she spoke only in Spanish and
could only be held responsible for leaving her work station
without authorization, failing to obey the directives to return
to work, and interfering with Respondent’s investigation of
the accident and efforts to provide Hernandez medical aid.
On Monday afternoon, Respondent informed Sara Ochoa
and Roberto Garcia of their suspensions, apprising them of
the specific infractions leading to their discipline. The fol-
lowing morning, Javier Arreguin and Rafael Lopez were in-
dividually asked to come to the Lisa Cacace’s office. Rafael
Lopez came first and was informed of his suspension and
after he left Javier Arreguin was called to the office and
similarly informed of the reasons for the discipline and his
30-day suspension.
Patti Bradley informed them they were being disciplined
because they broke the rules, highlighted the rules they
broke, and explained each infraction. She indicated the na-
ture of the explanation when she was testifying about what
she told Javier Arreguin was suspended for: ‘‘using unsafe
practices by me not being able to get medical attention to
Fina, that you were upsetting and threatening Steve.’’
Analysis and Conclusions
I conclude General Counsel had not made a prima facie
case Javier Arreguin, Rafael Lopez, Sara Ochoa, and Roberto
Garcia were suspended for engaging in union and/or other
concerted protected activities. I further find, assuming
arguendo, General Counsel had made a prima facie case of
illegal discipline, Respondent has demonstrated by a prepon-
derance of the credible evidence, that the four employees
would have been disciplined absent their protected activity.
Wright Line, 251 NLRB 1083 (1980).
General Counsel argues Sara Ochoa acted reasonably
when she stopped work to go with other employees to Lisa
Cacace’s office because of her concern for Adolfina Hernan-
dez’ safety because she said she could not concentrate on her
work until sure Adolfina Hernandez was all right and be-
cause Adolfina Hernandez requested her coworkers stay.
General Counsel contends all the alleged discriminatees were
engaging in concerted protected activity for they were con-
cerned about Adolfina Hernandez ‘‘receiving proper and im-
mediate medical attention.’’ I find this argument to be with-
out merit. On the contrary, they increased Hernandez’
hysteria, interfered with Respondent’s investigation of the ac-
cident, and delayed the acquisition of medical attention.
Respondent was conducting an investigation into what oc-
curred to Adolfina Hernandez and attempting to determine if
she desired or needed medical attention. The evidence clearly
demonstrates the presence of Javier Arreguin, Rafael Lopez,
Sara Ochoa, and Roberto Garcia exacerbated Adolfina Her-
nandez’ hysteria which gave Respondent grave cause for
concern about Hernandez’ health because of her history of
heart disease. Respondent’s attempts to calm Adolfina Her-
nandez were repeatedly defeated by the alleged discrim-
inatees’ excited, boisterous, and threatening presence.
The employees were not engaged in concerted protected
activities when they spontaneously and without authorization
left their work stations to follow Adolfina Hernandez to the
office. As Ochoa admitted, they wanted to ‘‘see what hap-
pened with Fina.’’ They were not presenting grievances or
engaging in other concerted protected activity such as con-
tract discussions or protesting an unfair labor practice com-
mittee by Respondent. They did not request any action and
were not part of any attempt to induce group action; they
were not designated spokesmen nor representatives of other
employees when they went to Lisa Cacace’s office and there-
fore their actions were not protected concerted activity under
the Thor Power doctrine, 148 NLRB 1379 (1964). See K &
M Electronics, 283 NLRB 279 (1987), and Antenna Depart-
ment West, 266 NLRB 909 (1983).
Assuming they were acting in concert, they lost any pro-
tection afforded under the Act when they engaged in insubor-
dination by refusing to follow three or more directives to re-
turn to work so Respondent could discern what occurred to
Adolfina Hernandez and obtain medical assistance. They re-
mained in and around the office, were loud, angry, and
threatened a supervisor with harm. There is no evidence any
supervisor has previously condoned such conduct. Respond-
ent’s rules of conduct were well established and included
provisions for disciplinary action in the event an employee
violated these rules. Mead Corp., 275 NLRB 323 (1985);
Carolina Freight Carriers Corp., 295 NLRB 1080 (1989).
Respondent has convincingly demonstrated Ochoa, Arreguin,
Garcia, and Lopez violated the Company’s rules by going to
and remaining at Lisa Cacace’s office without authorization,
refusing directives to leave the office and return to work, and
interfering with Respondent’s investigation of the accident
and obtaining medical treatment for Hernandez. Further, Re-
spondent has established by a preponderence of the credible
evidence Arreguin, Lopez, and Garcia threated Supervisor
Steve Vandervort who was intimidated by these threats
which were made with visible anger.
I find General Counsel has failed to prove animus. Re-
spondent conducted an investigation into the conduct of the
alleged discriminatees and I conclude Respondent held a
good-faith belief they were repeatedly insubordinate and
Javier Arreguin, Rafael Lopez, and Roberto Garcia threat-
ened Steve Vandervort with physical violence. Salvation
73CALLIOPE DESIGNS
11 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 objec-
tions to them shall be deemed waived for all purposes.
Army Williams Memorial Residence, 293 NLRB 994 (1989).
There is no evidence Respondent condoned threats or insub-
ordination in the form of repeated refusals to return to work
or other breaches in the rules of employee conduct.
Massillon Community Hospital, 282 NLRB 675 (1987);
Evans St. Clair, Inc., 278 NLRB 459 (1986). Cf. Betcher
Mfg. Corp., 76 NLRB 526, 527 (1948). Cf. Ben Pekin Corp.,
181 NLRB 1025 (1970), enfd. 452 F.2d 205 (5th Cir. 1971);
wherein the court held: Not every impropriety committed
during Section 7 activity places the employee beyond the
protective shield of the Act’’ and ‘‘the employees’ right to
engage in concerted activity may permit some leeway for im-
pulsive behavior.’’
The leeway was exceeded by the employees for they bla-
tantly refused several directives to return to work in the pres-
ence of other employees, seriously undermining the authority
to Patti Bradley and Lisa Cacace. Javier Arreguin, Rafael
Lopez, and Roberto Garcia also menacingly threatened an-
other supervisor, Steve Vandervort, further exacerbating the
effects of the accident and impeding Respondent’s ability to
promptly and effective deal with the accident and its effects.
I find General Counsel’s reliance on Consumers Power
Co., 282 NLRB 130 (1986), inappropriate in this case for the
alleged discriminatees were not engaged in bringing com-
plaints or suggestions to Respondent’s attention; they were
preventing Respondent from handling an accident in a calm
and appropriate manner. The evidence does not support a
conclusion the alleged discriminatees’ actions were merely a
continuation of their earlier meetings during break at 9:30
a.m. and with Respondent at 9:45. In fact, it is undisputed
the employees agreed to defer discussing their safety con-
cerns until the meeting the following Thursday. Only after
the events on June 1, which led to their suspensions, did the
discriminatees discuss wages and other terms and conditions
of employment with Respondent during the 4 p.m. meeting.
In sum, I find Respondent disciplined Javier Arreguin,
Rafael Lopez, Roberto Garcia, and Sara Ochoa for unpro-
tected insubordination and Javier Arreguin, Rafael Lopez,
and Roberto Garcia for threatening Steve Vandervort; the
disciplinary actions were not discriminatorily motivated. The
alleged discriminatees each engaged in specific acts of dis-
obedience which were not excused by any claim they were
engaging in some generalized unsupported act of concerted
activity. The record is devoid of any evidence Respondent
acted with hostility to the employees’ union or other con-
certed protected activity or other indicia of union animus.
Accordingly, I recommend the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Calliope Designs, Inc., is an employer engaged in com-
merce within the meaning of the Act.
2. Sonoma County Industrial Union/S.E.I.U., Local 707 is
a labor organization within the meaning of the Act.
3. The General Counsel has not established by a prepon-
derance of the evidence that Respondent has violated the Act
as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The complaint is dismissed in its entirety.