Millcraft Furniture Co., Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1987

282 N.L.R.B. 593 (N.L.R.B. 1987)

MILLCRAFl FURNITURE Co.
Miilcraft Furniture. Company, Inc. and Saul P.
Zelayal and ,Juan Buendia. Cases 21-CA-
23289 and 21-CA-23290
5 January 1987
DECISION AND ORDER
BY CHAIRMAN DorsoN AND MEMBERS
BABSON AND '&,MPHENS
On 15 March 1985 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
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 judges rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
Contrary to the administrative law judge, for the
reasons set forth below, we find that the Respond-
ent unlawfully discharged Charging Party Saul
Zelaya in violation of Section 8(a)(1) of the Act for
engaging in concerted activity protected by Sec-
tion 7 of the Act.2
A. Facts
On 15 June 1984 during a . workbreak one of Ze-
laya's fellow employees complained to Zelaya and
some other employees about the manner in which
Plant Manager Morales had reprimanded that em-
11 Charging Party Zelaya s name is misspelled throughout the judge's
decision.
9 We affirm the judge 's conclusion that the Respondent did not unlaw-
fully suspend and, subsequently discharge Charging Party Juan Buendia.
In dismissing this allegation, the judge found, inter alma, that there was no
evidence of union animus on the part of the Respondent. In so finding,
the judge relied in part on an absence or any other unfair labor practices
committed by the Respondent Inasmuch as we find below that the Re-
spondent did commit an unfair labor practice by discharging Charging
Party Zelaya because of his protected concerted activity, we do not rely
on this aspect of the judge 's rationale. Nevertheless, we agree with his
ultimate conclusion that the Respondent did not commit an unfair labor
practice by suspending and subsequently discharging Buendia. In this
regard we note the absence of any other evidence to support a finding or
even an inference of union animus. Moreover, as seen below, the Re-
spondent unlawfully discharged Zelaya solely because of his refusal to
discuss a group grievance with the plant manager. While clearly protect-
ed'activity, Zelaya s conduct was not shown to be related in any way to
the Union's organizational campaign or employee activity in support of
the Union . Under these circumstances involving an isolated act unrelated
to the union activity, and an absence of any other evidence from which
to infer union animus, we affirm the judge 's conclusion that Buendia was
not unlawfully suspended or discharged.
Member Stephens does not agree with the judge that the General
Counsel failed to make out a prima facie case that Buendia's union activi-
ties were a motivating factor in his discharge; but he conclude, on the
basis of the judge's factual findings, that the Respondent satisfied its
burden of proving that Buendia would have been discharged in any
event. Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U .S. 989 (1981).
593
ployee. A discussion ensued among these employ-
ees about the way Morales conducted himself to-
wards employees. The employees in the discussion
commented that Morales had committed "many in-
justices" during his approximately 6 weeks as plant
manager. Zelaya suggested that the employees talk
to the Respondent's president, Miller, about Plant
Manager Morales' perceived mistreatment of em-
ployees. The other employees in the discussion
agreed with Zelaya's suggestion about talking to
Miller about Morales. Following the end of the 9
a.m. workbreak, the employees, while working,
continued to talk about Zelaya's suggestion.
About 10:20 a.m., leadman Gonzalez told Super-
visor Adolphus that the assembly line was not
moving fast enough because Zelaya was not work-
ing fast enough. Adolphus went to Zelaya's work
station on the assembly line. The other employees
on the assembly line stopped their work in order to
listen to Adolphus' discussion with Zelaya. Adol-
phus asked about Zelaya's problem. Zelaya indicat-
ed that he wanted to speak to President Miller
about Plant Manager Morales, who Zelaya asserted
was pushing the employees too hard, and that he
also wanted to speak to Miller about the employ-
ees' wages. Adolphus instructed Zelaya and the
other employees to return to work, which they did.
However, about 15 minutes later, Adolphus noticed
Zelaya not working, and approached Zelaya's
work station. As he did so, the other employees on
the assembly line again stopped work to listen.
Adolphus questioned Zelaya about his problem and
asked him why he wanted to talk to President
Miller. Zelaya replied that Morales was not treat-
ing the employees properly, and was calling them
names. When Adolphus suggested that Zelaya and
the other employees speak with Morales about
their complaints, Zelaya threw up his hands and
loudly proclaimed that he did not wish 'to speak
with anyone other than Miller. The other assembly
line employees, who by this time had, gathered
around, indicated that they agreed with Zelaya's
remarks. Adolphus told the employees to return to
work, ' and that he would attempt to arrange a
meeting between the employees and either Miller
or Morales.
Later that day, during the lunchbreak, approxi-
mately 50 employees gathered in the Respondent's
parking lot and discussed the complaints they had
against Morales. The employees agreed that instead
of returning to work after lunch, they would go en
masse to Miller's office to complain about Morales'
mistreatment of the employees.
As the group of employees, which had swelled
to about 100, approached Miller's office, they were
confronted by Adolphus, who asked them why
282 NLRB No. 83
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were not working. Zelaya told him that they
wanted to talk to Miller . Adolphus told the em-
ployees to return to work. Zelaya stated that the
employees would not return to work until they had
talked to Miller. Adolphus replied that Miller was
at lunch, that they should return to work, and that
Adolphus would' arrange for them to speak with
either Morales or' Miller later that day. By this
time, many of the employees were speaking at the
same time, some were cursing , and some were
saying that they wanted to "get rid of' Morales.
Zelaya told Adolphus that the reason the employ-
ees wanted to speak with Miller rather than Mo-
rales was because they believed that only Miller
could remedy their complaints against Morales.
Adolphus told the employees to return to work
and that he would ' speak to Morales and arrange
for several of them to meet with management to
explain their problems . At Zelaya's suggestion, the
employees agreed to postpone, any meeting with
Miller until their afternoon workbreak, and to
return to work in the meantime.
Morales had been away from the plant from 10
a.m. until 1 , p.m. When Adolphus informed him of
the above-described events, Morales gathered
Adolphus, another supervisor, and several leadmen
in his office to question them about these events.
Several of the leadmen told Morales that very little
production work was being done and that the situ-
ation in the plant was almost at the point of becom-
ing a riot. In response to Morales', question, lead-
man Ruelas told Morales that the employees en-
gaged in the above conduct because they wanted
to be treated better by and have improved commu-
nications with Morales. In response to another
question by Morales, leadman Sierra told Morales
that Zelaya and three or four other employees,
whom Sierra named, were responsible for the work
stoppage. Morales sent Ruelas to the assembly line
to inform Zelaya and the other employees named
by Sierra that Morales wanted them to come to his
office to speak with Morales about the reasons for
the work stoppage.
Ruelas relayed Morales' instructions to Zelaya
and the other employees named by Sierra . Each of
these employees, including Zelaya, refused to speak
with Morales; they told Ruelas that they were
going to speak with Miller during their afternoon
break period. When Morales was informed of Ze-
laya's and the other employees' refusal to meet
with him about the reasons for the work stoppage,
he twice reissued, through supervisors , his instruc-
tions that the employees meet with him in his
office. They each continued to refuse to do so, as-
serting that they had nothing to say to Morales.
Finally, Morales himself, accompanied by two
supervisors, went to the assembly line. Morales
told Zelaya that he wanted Zelaya to accompany
him back to his office so that they could talk.
Zelaya loudly asked Morales why he wanted to
speak with him. Morales repeated to Zelaya that he
wanted to talk to him in his office. Zelaya replied
in a loud voice the employees did not want to
speak with Morales, but that they wanted to speak
with Miller during the afternoon break period. Mo-
rales then left the assembly line area. During his
exchange with Morales, Zelaya appeared to be
angry. He also continually moved and turned away
from Morales during the exchange , making it diffi-
cult for Morales to speak to him.
Shortly after Zelaya's refusal to accompany Mo-
rales to the latter 's office, Morales returned to the
assembly line area, accompanied by three police of-
ficers and a plant security guard . According to Ze-
laya's credited testimony (given through an official
interpreter), Morales told Zelaya "you have no
more work." Zelaya asked Morales why , he was
"terminating" him; Morales replied, "I can't tell
you anything. We have no more work and that is
it." Zelaya then left the plant. Zelaya's termination
slip, signed by Morales, lists the following reasons
for termination : "Failure to follow instructions.
Willfully creating work stoppage. Lost production
time , of 1 hour, causing 24 employees to stop work
[due] to his own actions."
B. Analysis and Conclusions
The judge concluded that the Respondent dis-
charged Zelaya because he refused to accompany
Plant Manager Morales to his office; that Zelaya's
refusal constituted insubordination, not protected
by the National Labor Relations Act; and ' that the
Respondent's discharge of Zelaya for conduct not
protected by the Act was therefore not an unfair
labor practice. -
We do agree with the judge, for the reasons he
sets forth in the final three paragraphs of section
I,B,2 of his decision , that Zelaya was discharged
because he refused to accompany Morales to his
office, and not because of his role in the work stop-
page . We disagree with the judge, however, over
the issue of whether Zelaya 's refusal to ` accompany
Morales to the latter 's office was, as the judge
found, an act of unprotected insubordination or, as
we find below , an aspect of Zelaya's participation
in the protected concerted activity of presenting a
group grievance to President Miller about the be-
havior of Plant Manager Morales.
As the judge notes, ' in determining whether an
employee's assertedly protected conduct exceeds
the scope of protection of the Act, the Board at-
MILLCRAF F FURNITURE CO. 595
tempts to achieve a balance between the self-orga-
nizational rights of employees under Section 7 of
the Act and the property and managerial rights of
employers.3 It is well settled that a concerted em-
p]loyee protest of supervisory conduct is protected
activity under Section 7 of the Act.4 However, the
judge found that Zelaya's refusal to obey Morales'
order to accompany him to the latter's office was a
"f[agrant challenge to Morales' authority," under-
mined the Respondent's' right to maintain discipline
and order, and amounted to insubordination which
the Respondent was under no obligation to con-
done-particularly where, according to the judge,
compliance by Zelaya with Morales' request that
he accompany him to Morales' office "would not
have interfered with Zelaya's right to participate
in" the contemplated concerted activity.
In his analysis, the judge treated Morales' order
to Zelaya to accompany him to the office to be,
separable from Morales'. order to Zelaya to discuss
the reasons for the work stoppage. Focusing only
on the former aspect of Morales' order, the judge
found that the Respondent lawfully discharged
Zelaya for insubordination for disobeying Morales'
order as an exercise by the Respondent of its mana-
gerial right to prevent an encounter in the work
area from disrupting production.
We do ' not agree with the judge's analysis.
Rather, we find that Morales' order to Zelaya to
accompany him to the office was inseparably inter-
twined with Morales' order that Zelaya discuss
with him, rather than Miller, the reasons for the
work stoppage. The employees had already agreed
among themselves to present their grievances to
President Miller , rather than Plant _ Manager Mo-
rales; indeed, the employees' grievances were about
Morales. Thus, we find that Morales did not in-
struct Zelaya to accompany him to his office
simply as an exercise of managerial authority in an
attempt to, reduce the tension on the work floor at
that time. Rather, as the record makes clear, and as
Zelaya had already been told repeatedly by lead-
man Ruelas, Morales, wanted Zelaya and a few
other named employees to come to Morales' office
in order to discuss the reasons for the work stop-
page. Moreover, Morales had already been in-
formed by leadman Ruelas that the employees had,
engaged in the work stoppage because of their
complaints about the treatment they were receiving
at the hands of Morales and their desire to convey
their complaints about Morales directly to Presi-
a See generally Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-
798 (1945); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956),
4 Herrick & Smith, 275 NLRB 398 (1985); Fair Mercantile Co., 271
NLRB 1159 (1984); Calvin D. Johnson Nursing Home, 261 NLRB 289
(1982); Pacifu Coast International Co., 248 NLRB 1376 (1980); Dreis &
Krump Mfg., 221 NLRB 309 (1975).
dent Miller. Morales had also already been told by
his supervisors and leadmen that the employees in-
tended to meet with Miller for that very purpose
later that afternoon on their break period. There-
fore, at the time Morales instructed Zelaya to ac-
company him to his office, Zelaya had already
been informed of Morales' intended - purpose in re-
quiring Zelaya to -come to his office-i.e., to dis-
cuss the reasons for the work stoppage-and Mo-
rales had already been informed of,the reasons for
the work stoppage-employee complaints about
him and the desire to voice those complaints di-
rectly to the Respondent's president. Thus, Zelaya
and his' fellow employees were engaged in concert-
ed action for a purpose known to Morales and pro-
tected by the Act.
We therefore find that . Zelaya's refusal to accom-
pany Morales to the latter's office to, discuss with
Morales the reasons for the work stoppage was not
an unprotected act of insubordination, but was in-
stead an integral aspect of Zelaya's and his fellow
employees' protected concerted efforts to present
their complaints about Morales directly to Presi-
dent Miller, and not to- Morales. Thus, we con-
clude that Zelaya's discharge was for his refusal to
be diverted from the protected course of conduct-
a direct meeting between the employees and Presi-
dent Miller-which Zelaya and his fellow employ-
ees agreed in concert among themselves to follow.
In determining that Zelaya's refusal to accompa-
ny Morales to his office to discuss the reasons for
the work stoppage was an integral aspect of Ze-
laya's exercise of his protected rights rather than
an unprotected act of insubordination, we note also
that the employees in question are not represented
by a labor organization, and there, was no estab-
lished grievance procedure, collectively bargained
for or otherwise, which would have dictated a par-
ticular Respondent official 'to whom the complaints
about Morales should be submitted or a particular
procedure to follow in making such, a submission.
Rather, under these circumstances, the employees,
including, of course, Zelaya, had the right under
Section 7 of the Act to' seek to voice their griev-
ances to the Respondent official of their choice-in
this case, the Respondent's president. Thus, the
Board has long held , with court approval, that the
Act allows employees to engage in any concerted
activity which they decide is , appropriate for their
mutual aid and protection, unless that activity is
specifically banned by another part of the statute,
or falls within other well-established, proscriptions,
such as violent conductor indefensible disloyalty.5
5 ,See NLRB v, Washington Aluminum Co., 370 U.S. 9, 16-17 (1962);
NLRB v. Solo Cup Co., 237 F.2d 521 , 526 (8th Cir. 1956); Johnnie Johnson
Continued
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant case , the employees chose, in con-
cert, to seek to voice their grievances about Mo-
rales directly to the Respondent's president, and no
other-a concerted course of conduct protected by
the Act. In effectively ordering Zelaya to discuss
with Morales, rather than with Miller, the employ-
ees' grievances about Morales, and in discharging
Zelaya for his refusal to do so, Morales directly
and substantially interfered with Zelaya's exercise
of his protected right to join with 'his fellow em-
ployees in seeking to present their grievances about
Morales directly to President Miller. Accordingly,
we conclude that the Respondent's discharge of
Zelaya, under the particular circumstances here,
was in violation of Section 8(a)(1) of the Act.6
Tire Co., 271' NLRB 293, 294 (1984); Serendippity-Un-Ltd., 263 NLRB
768, 774 (1982); Plastilite Corp., 153 NLRB 180, 184 (1965), enfd. in perti-
nent part 375 F.2d 343 (8th Cir. 1967).
6 In finding that Zelaya 's refusal to accompany Morales to the latter's
office to discuss the reasons for the work stoppage was,an unprotected
act of insubordination , the judge relied principally on the Board' s deci-
sion in Roadway Express, 246 NLRB 1127 (1979). We find the judge's re-
liance on Roadway Express to be misplaced in the context of this case.
In Roadway Express, an employee threatened the terminal manager
with physical harm while they were arguing in the loading dock area.
The manager requested the employee to accompany him to a nearby
office. The employee refused to accompany the manager ' to the office
until the employee 's union steward could be present. The manager left
the loading dock, but later returned, accompanied by another supervisor,
and repeated his earlier request that the employee accompany him to an
office. The employee again refused, explaining again that he would not
do so until his union steward could be present. The manager told the em-
ployee that, inasmuch as he would not go to the office as requested, he
was to leave the terminal altogether . The employee was suspended for
the remainder of the day and received ' a written warning for flagrant dis-
obeying of orders.
In finding no violation of the Act, the Board held that although the
employee properly invoked his Weingarten rights (NLRB v. J. Weingar-
ten, 420 U.S. 251 (1975)) when initially requested by the manager to ac-
company him to an office , his refusal to leave the dock area removed him
from the protection of the Act because the refusal "clearly undermined
[the employer's] right to maintain discipline and order." The Board noted
that the Supreme Court in Weingarten intended to strike a balance be-
tween employee rights and legitimate employer prerogatives. Applying
this principle in Roadway Express, the Board found that an employee's
Weingarten rights attach when the interview begins, but that the employer
has a right to require that the interview be conducted in an office away
from the plant floor.
The instant circumstances are much different from those in Roadway
Express. The manager 's request in Roadway Express that the employee
leave the dock and accompany the manager to an office was clearly
rooted in that employee's preceding misconduct in threatening the man-
ager, and was made in an effort ' to remove the dispute from the work
floor and to deal privately with the employee's misconduct in an adjacent
office. In the instant case, on the other hand, Morales ' request to Zelaya
to accompany him to his office to discuss the reasons for the work stop-
page was not rooted in any preceding,or concurrent misconduct on Ze-
laya's part. Indeed, as the judge found, and we affirm, Zelaya was dis-
charged because of his refusal to comply with Morales' request, but not
for any alleged misconduct preceding or accompanying that refusal.
Zelaya did not disobey a work order, indeed , he was working when ap-
proached by Morales . Zelaya's reason for refusing to accompany Morales
to the latter's office to discuss the reasons for the work stoppage were
made clear to Morales ' emissaries and then to Morales himself: the em-
ployees had decided among themselves to present their grievances about
Morales to President Miller, and not to any other Respondent official.
While Zelaya became loud and angry during his confrontation with Mo-
rales, and repeatedly turned away from Morales, there is no showing that
Zelaya was profane or insulting to Morales , or became so abusive or dis-
ruptive as to warrant his removal from the workplace for safety or disci-
CONCLUSIONS OF LAW ,
1. The Respondent, Millcraft Furniture Compa-
ny, Inc ., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By discharging Saul P . Zelaya for engaging in
protected concerted activity under Section 7 of the
Act, the Respondent has engaged in an unfair labor
practice in violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
Remedy
Having found that the Respondent has engaged
in an unfair labor practice in violation of Section
8(a)(1) of the Act, we shall order that the Respond-
ent cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the
purposes and policies of the Act. Specifically, we
shall order that the Respondent offer Saul P.
Zelaya immediate and full reinstatement to his
former position or, if that position no longer exists,
to a substantially equivalent position, without prej-
udice to his seniority or any other, rights and privi-
leges. We shall also order that ° the Respondent
make Saul P. Zelaya whole for any loss of earnings
he may have suffered as a result of his unlawful
discharge, with backpay to be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950); and with interest to be computed in the
manner set forth in Florida Steel Corp., 231 NLRB
651 (1977): Finally, we shall order that the Re-
spondent remove from its records any references to
the unlawful discharge of Saul P. Zelaya, provide
him with written notice of such 'removal, and
inform him that his unlawful discharge will not be
used as a basis for future personnel actions con-
cerning him. See Sterling Sugars, 261 NLRB 472
(1982).
ORDER
The National Labor Relations Board orders that
the Respondent, Millcraft Furniture Company,
pline . Thus, under the circumstances, we find that in refusing to accom-
pany Morales to his office to discuss the reasons for the work stoppage
Zelaya was not challenging Morales' authority to manage the plant as he
saw fit, but rather was simply resisting Morales' attempts to compel
Zelaya to discuss the employees ' grievances with Plant Manager Morales
rather than with President Miller-the employer official chosen by the
employees to hear their complaints about Morales. Thus, unlike the em-
ployee in Roadway Express whose refusal to accompany the manager to
an office was outside the scope of protection of the employees ' Weingar-
ten rights, Zelaya's refusal to accompany Morales to the latter 's office
was part and parcel of and-under the instant circumstances-inseparable
from the exercise of his Sec. 7 ' right to engage in concerted activity for
the mutual aid and protection of the employees.
MILLCRAFT FURNITURE CO.
Inc., Bell Gardens,, California, its- officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating
against employees because they engage in protect-
ed concerted activities.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Saul P. Zelaya immediate and full rein-
statement to his former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and other
rights and privileges, and make him whole for any
loss of earnings and other benefits suffered by
reason of the Respondent's discrimination against
him in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the
discharge of Saul P. Zelaya and notify him in writ-
ing that this has been done and that evidence of his
unlawful discharge will not be used as a basis for
future personnel ' actions concerning him.
(c) Preserve and, on request, make available to
the Board or' its agents for examination and copy-
ing, all payroll records , social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due wider the terms of this
Order.
(d) Post at its place of business in Bell Gardens,
California, copies of the attached notice ' marked
"Appendix."7 Copies of the notice, on forms pro-
vided - by the Regional Director for Region 21,
after being signed by the Respondent 's authorized
representative, shall be posted by the Respondent
immediately , upon receipt and maintained for 60
consecutive days in conspicuous places including
all places , where notices to employees are custom-'
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
'r If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
597
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United, States Government,
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interfere with these rights given
to you by law.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engaged in
protected concerted activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Saul P. Zelaya immediate and
full reinstatement to his former position or, if that
position no longer exists , to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges, and WE WILL make him
whole for any loss of pay or benefits he may have
suffered because of the discrimination against him,
plus interest.
MILLCRAFT
INC.
FURNITURE COMPANY,
Samuel D. Reyes Esq., for the General Counsel.
Stephen F. Harbison, Esq. (Arque. Freston, Pearrson,
Harbison & Myers), for the Respondent.
Saul P. Zelya and Juan Buendia, on behalf of themselves.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in these cases , which was held on' December 5
and 6, 1984, is based on unfair labor practice charges
filed on July 6, 1984, by Saul P. Zelya in Case 21-CA-
23289 and by Juan Buendia in Case 21-CA-232901
' The charge in Case 21 -CA=23290- was amended on August 28, 1984.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Millcraft Furniture Company, Inc. (Respondent)
and a consolidated complaint issued on August 30, 1984,
on behalf of the General Counsel of the National Labor
Relations Board (the Board) by the Board's Regional Di-
rector for Region 21, alleging that Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act). The complaint alleges that Respondent
violated Section 8(a)(1)'of the Act by discharging Charg-
ing Party Zelya on June 15, 1984 , because he engaged in
protected concerted activities, and violated Section
8(aXl) and (3) of the Act by discharging Charging Party
Buendia on June 28 , 1984, because of his union sympa-
thies and activities . Respondent filed an answer denying
the commission of the alleged unfair labor practices-'
On the, entire record, from my observation of the de-
meanor of the witnesses , and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent, a corporation, operates a plant in Bell
Gardens, California, where it manufactures furniture.
During the time material , this plant employed approxi-
mately 210 employees , including the Charging Parties,
Zelya and Buendia . None of the employees were repre-
sented by a labor , organization. The plant's manager,
Robert Morales , who assumed his position at the start of
May 1984, was a more strict disciplinarian than his pred-
ecessor.
B. Zelya's Discharge (Case 21-CA-23289)
1. The evidence
Saul Zelya, an alleged discriminatee, was employed by
Respondent from April 1983 until his June 15, 1984 dis-
charge. He worked in the Company's assembly depart-
ment on assembly line 1 attaching furniture legs.
On June 15, 1984, during the employees' 9 a.m. break
period, an employee who worked on assembly line 1
complained to Zelya, and several of the other employees
who worked with him on that line, about the manner in
which Plant Manager Morales had reprimanded him ear-
lier. This led to a discussion among the employees about
the way in which Morales was conducting himself
toward the employees. The employees commented that,
during his approximately 6 weeks as plant manager, Mo-
rales had committed "many injustices ." Zelya suggested
that the employees talk to Respondent's president,
Miller, about Morales' mistreatment of the employees.
The other employees agreed that it would be a good idea
2 Respondent, in its answer, admits that it meets one of the Board's
applicable discretionary jurisdictional standards and that it is an employer
engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act.
Respondent, in its answer, also admits that the Union, Produce, Refriger-
ated and Processed Foods and Industrial Workers Local 630, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Sec. 2(5) of the
Act.
for them to speak with the Company's president about
Morales' conduct.
The line 1 employees returned to work at the end of
their 9 a.m. break period and, while working, continued
to talk about Zelya's idea that they talk to President
Miller about Morales, in particular that they talk with
him about Morales' practice of discharging employees
with good work records for no apparent reason.
At approximately,10:20 or 10:30 a.m., one of the lead-
men on line 1, MacLovio Gonzalez, went to Alvin Adol-
phus, Respondent 's shipping department supervisor, and
told him that line 1 was not moving fast enough and that
the reason for this was that Zelya was not working fast
enough. Zelya's ability to speak or understand English is
limited. On the other hand, Adolphus' ability to speak or
understand Spanish, Zelya's native language , is similarly
limited. Accordingly, Adolphus, using Gonzalez as an in-
terpreter, went to line 1 where Zelya was working. The
other line 1 employees, who up to this point had all been
working, stopped work in order to listen to Adolphus'
conversation with Zelya. Adolphus asked about Zelya's
problem. Zelya indicated that he wanted to speak to
President Miller about Plant Manager Morales, who,
Zelya stated, was pushing the employees too hard, and
that he also wanted to speak to President Miller about
the employees' wages. Adolphus responded by instruct-
ing Zelya and the other employees to return to work,
which they did. Thereafter, in approximately 15 minutes,
Adolphus observed that Zelya was just standing at his
work station without working. Adolphus went to Willy
Gutierrez, the supervisor over the milling department,
and asked him to accompany Adolphus to Zelya's work
station and act as an interpreter. As they approached
Zelya's work station, the other employees working on
line 1 stopped work to listen. Adolphus, using Gutierrez
as an interpreter, questioned Zelya about his problem
and asked why he wanted to talk to President Miller.
Zelya stated that Plant Manager Morales was not treat-
ing the employees properly, that he was calling them
names. Adolphus asked why Zelya and the other em-
ployees did not speak with Morales about their com-
plaints and, if Morales refused to speak with them, then
talk to President Miller. Zelya, speaking in a loud voice,
threw up his hands and stated that he did not want to
speak with anyone other than President Miller. The
other line 1 employees, who by this time had gathered
around, indicated that they agreed with Zelya's remarks.
This meeting lasted approximately 10 or 15 minutes and
ended with Adolphus telling the employees to return to
work and stating that he would try to arrange a meeting
with either Morales or Miller and the employees- 3
2 The above description of what took place during the period of time
between the employees' return to work after their 9 am. break period
and their 11.45 am . lunch period is based on the testimony of Zelya,
Adolphus, and Gutierrez. I have rejected Gonzalez' testimony that, be-
cause of the employees' efforts to talk to President Miller and their un-
happiness about being informed that Miller was not present in the plant
to talk with them, line 1 was shut down from approximately 10:30 a.m.
until the employees ' 11:45 a.m. lunchbreak. The testimony of Gonzalez,
whose testimonial demeanor was poor, was not corroborated by Adol-
phus' testimony . Adolphus testified to the effect that the sole cessation of
Continued
MILLCRAFF FURNITURE CO.
Later that day, during the employees' lunchbreak from
11:45 a.m. to 12:15 p.m., approximately 50 employees
gathered together in the Company's parking lot and dis-
cussed , the complaints ' they had against Plant Manager
Morales. The meeting was conducted by MacLovio
Gonzalez, also referred to as El Cholo in the record,
who is fluent in both English and Spanish.4 The employ-
ees complained that Morales had discharged many em-
ployees without giving them a reason for their termina-
tions ; 3 that employees, could no longer visit the plant
manager's office and speak to Morales about their prob-
lems, whereas his predecessor had an open-door policy;
and that, since Morales had assumed the position of gen-
eral manager 6 weeks previously , the subject of a general
pay raise for the employees had not been mentioned. The
meeting ended with the employees agreeing that when
the lunch period ended at 12 : 1.5 p.m., instead of returning
to work, they' would go to the office of Respondent's
president, Miller, and complain to him about Morales'
mistreatment of the employees.
As planned, a group of the employees, instead of re-
turning to work at 12:15 p .m. when the employees'
lunchbreak ended , walked through the assembly depart-
ment toward the shipping and receiving department
where President Miller's office was located. By the time
the employees reached the entrance to the shipping and
receiving department, their number had grown to ap-
proximately 100. They were confronted there by Alvin
Adolphus, the supervisor of the shipping department. He
asked why they were not working. Zelya told him that
they wanted to talk to President Miller. Adolphus, using
leadman Gonzalez as an interpreter, told the employees
to return to work. Zelya stated that the employees were
not returning to work until they had talked to President
Miller. Adolphus replied that Miller was out to lunch,
that there was no one available for them to speak to at
that time, that they, should return to work, and that he
would arrange for them to speak with either Morales or
Miller later that day. By this time , the employees were
an talking at once, some in loud voices, some using pro-
fane language, and some stating that they did not like the
way Morales was "driving" the employees and that they
wanted to "get rid of" him . Employees also stated that
they did not believe Adolphus when he said Miller was
out to lunch. Zelya told Adolphus that-the employees
wanted to speak to Miller, rather than Morales, because
they believed that only Miller could remedy their com-
plaints against Morales. Adolphus told the employees to
return to work and that he ' would speak to Morales and
production on line 1 was when the employees on two occasions stopped
work in order to' listen to him speak with Zelya . I realize Gutierrez testi-
fied that , when Adolphus asked Gutierrez to accompany him to Zelya's
work station as an interpreter, Adolphus told him that the employees
were not doing any work. However, A dolphus testified to the effect that
it was only Zelya whom he observed just standing around without work-
ing and that the other workers stopped work only to listen to Adolphus'
conversation with Zelya. I note that, although Zelya generally denied
losing any production time before lunch, he did not specifically contra-
dict Adolphus' testimony that he observed him standing at his work sta-
tion at approximately 11, am . doing nothing . In any event, Adolphus,
when he testified about this particular matter , impressed me as a credible
witness.
4 The native language of a large number of Respondent's employees is
Spanish and , as a result, their understanding of English is limited.
599
arrange for several of them to meet with management to
explain their problems. Zelya suggested to the employees
that they postpone their meeting with President Miller
until the employees' 2:30 p.m. break, period, and in the
meantime they should return to work. After discussing
this among themselves, the employees agreed to accept
Zelya's suggestion and returned to work.5 The employ-
ees were away from their work stations anywhere from
20 to 30 minutes.
Plant Manager Morales left the plant at approximately
10 a.m. on June 15 and did not return until approximate-
ly 1 p.m. On his return, he discovered that Supervisors
Adolphus and Gutierrez were waiting for him. Morales
testified they told him that after the employees' lunch
break Adolphus had stopped a group of employees, who
should have been working, from going to President Mil-
ler's office and persuaded them to return to work. Mo-
rales asked the two supervisors to come into his office
and he also summoned several of the leadmen • to the
office. He questioned them about the situation. Morales
testified that some of the leadmen told him there was
very little production work being done, they did not be-
lieve they would be able to meet their daily production
quotas, and the situation 'in the plant was almost at the
point of becoming a riot. When Morales asked why the
employees had stopped work to go to speak with Presi-
dent Miller, the leadman from line 3, ' Marcos Ruelas,
told him that the employees had engaged in this conduct
because they wanted to be treated better by Morales and
have better communications with him.' In response to
Morales' inquiry about which 'employees were responsi-
ble for the work stoppage, Ruelas replied that all of the
employees were equally responsible. However, the lead-
man on line I, Margarito Sierra, informed Morales that
Zelya and three, or four other employees who were em-
ployed on line 1, whom Sierra named, were responsible.
Morales asked Ruelas to go , to line 1 and tell the employ-
ees named by Sierra that he wanted them to come'to his
office because he wanted to speak to them about the rea-
sons for the work stoppage.6
Ruelas went to line 1 where he spoke to Zelya and the
other three or four employees named by leadman Sierra
as having been responsible for the work stoppage. He
told them Morales wanted them to come to his office be-
cause he wanted to speak to them about the, reasons for
the work stoppage. Each of the employees, including
5 The description of this incident is based on the composite testimony
of Adolphus, Zelya, Ruelas, and Gonzalez . They did not contradict one
another, in significant respects, when they testified about this incident. I
have, however, rejected Gonzalez' testimony that the employees did not
return to -work for about 1 hour because it is not consistent with either
Zelya's (20 minutes) or Adolphus' (30 minutes) testimony-
6 In relying on Ruelas' above-described testimony , I have considered
that Supervisors Adolphus and Gutierrez and Plant Manager Morales tes-
tified in effect that Zelya's was the only name mentioned by the leadmen
as being the employees' spokesperson or being responsible for the work
stoppage. However, when they gave their testimony, their testimonial de-
meanor was poor, whereas the testimonial demeanor of Ruelas, who, in-
sofar as this record reveals, was a disinterested witness, was good. I also
note that Adolphus' testimony that in response to Morales' inquiry lead-
man Gonzalez told Morales that Zelya was responsible for the.lines being
down and that Zelya was "the problem" was contrary to the testimony
of Respondent's witness Gonzalez, who testified that he was not even
present at this meeting.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zelya, stated they would not speak with Morales and
that they were going to speak with President Miller
during the afternoon break period. Ruelas went. back to
the office and told Morales what the employees had said.
Morales instructed him to return to line 1 and again to
tell the employees to come to his office so he could talk
with them. Ruelas again relayed Morales' message to the
employees, including Zelya, who repeated their earlier
refusal.' When Morales was informed by Ruelas that the
employees still would not come to his office, Morales
then sent Supervisor Adolphus to speak to them. Adol-
phus went to line 1 and talked to Zelya and four of the
other employees named by leadman Sierra, and told
them that Morales wanted to speak to them in his office.
Each one of them, including Zelya, refused to go to Mo-
rales' office. They informed Adolphus they had nothing
to say to Morales.8
Immediately after being informed by Ruelas and Adol-
phus that the line 1 employees whom he wanted to speak
to in his office had refused to come to the office, Mo-
rales, ' accompanied by Supervisors Adolphus and Gutier-
rez, went personally to line 1. Morales stopped at Zelya's
work station and told Zelya that he wanted Zelya to ac-
company him back to his office so that they could talk.
Zelya responded by stating that he had nothing to say to
Morales and that the employees intended to speak to
President Miller during their afternoon break period.
Morales returned to his office. It is undisputed that Zelya
spoke to Morales in a loud voice, and that he was per-
spiring and shaking as he talked and had the demeanor of
someone who was angry. Also Zelya, as he spoke, con-
stantly moved and turned his body, thus making it diffi-
cult for Morales to speak to him. It is also undisputed
that there were several employees who worked in
Zelya's immediate work area who were in a position to
witness Zelya's refusal to ' go with Morales to his office.9
Shortly after Zelya's refusal to accompany Morales
back to his office, Morales returned to line 1 accompa-
nied by police officers. They went, to Zelya's work sta-
tion where Zelya was working.1 ° Morales told Zelya
9 In crediting Ruelas' testimony that , pursuant to Morales' instruction
he asked three or four other employees besides Zelya to come to Mo-
rales' office, I have considered the contrary testimony of Morales and
Gonzalez. I have credited Ruelas' testimony because his testimonial de-
meanor was good, whereas the testimonial demeanor of Morales and
Gonzalez was poor . I also note that Zelya's testimony corroborated
Ruelas' in this respect . He credibly testified that Ruelas told four other
employees, besides Zelya , that Morales wanted to speak with them and
that all five of them refused to go to Morales' office.
s The above description of the events when Supervisor Adolphus went
to line 1 is based on Zelya's testimony . I have considered the contrary
testimony of Adolphus and Gonzalez and have credited Zelya 's account
because his testimonial demeanor was good , whereas Gonzalez' and
Adolphus' testimonial demeanors were poor.
9 In view of this, I have not decided whether , as Morales' testified, 20
or 25 employees were gathered around Zelya 's work station listening to
Morales' conversation with Zelya or whether, as Zelya testified, all the
emloyees were working during the conversation . In all other respects
there are no significant contradictions between Zelya 's and Morales' ver-
sions of what took place during this conversation. -
10 I have credited Zelya , that during this period he was working. I
have discredited leadman Gonzalez ' testimony that, from the time Mo-
rales left Zelya's work station to Morales' return , no work -was done by
anyone because, as Gonzalez testified , approximately 100 employees from
the Company's several departments were just standing in the vicinity of
line 1 trying to find out from Zelya what was happening. Gonzalez' testi-
that he had been terminated. When Zelya asked the
reason for his termination , Morales refused to give ,him
the reason. After being assured by,the police tha r he was
not being arrested, Zelya gathered together his personal
belongings and left the premises.
The aforesaid description of the events which took
place after Zelya's refusal to go to the office, as request-
ed by Morales, is based on the testimony of Zelya,
whose testimonial demeanor was good. I have carefully
considered and rejected the testimony given by Respond-
ent's several witnesses about what occurred during this
period. Their testimonial demanor was poor when they
testified about the events which they said occurred
during this period. In addition, as described in detail
below, there are significant internal inconsistencies in the
testimony of some of these witnesses, and their testimo-
ny, instead of being mutally corroborative, was, in signif-
icant instances, inconsistent, and Morales' affidavit given
to the Board soon after Zelya's discharge omits to men-
tion certain significant matters which Morales now
claims to have taken place.
Morales testified that, almost immediately after Zelya's
refusal to obey his personal request to come to the office,
Morales went back upstairs to the office where he tele-
phoned Respondent's vice president, John Cox, and that
Cox telephoned the police. Cox, on the other hand, testi-
fied it was Morales who telephoned the police. Morales
and Cox testified they went downstairs separately, first
Cox and then Morales, and that they met the police out-
side the plant from where they entered the assembly
area. Supervisor Adolphus, on the other hand, testified
that he observed Morales and Cox come down the stairs
together and, rather than go outside the plant, he ob-
served them walk immediately to Zelya's work area. Su-
pervisor Gutierrez gave yet another version of what oc-
curred. He testified that when, Morales returned to his
office he telephoned Cox, who came to Morales' office,
and the three of them-Cox,, Morales, and Gutierrez-
immediately went to Zelya's work station. Supervisor
Adolphus gave yet another version of what occurred. He
testified that, immediately after Zelya refused to obey
Morales' instruction to go to Morales' office, Morales
went back to his office where he told Supervisors Adol-
phus and Gutierrez and the leadmen, who were still in
the office, that he intended to terminate Zelya for "dis-
obedience." Morales, however, specifically denied that
he ever made this remark.
Likewise, the testimony of Respondent's several wit-
nesses is in hopeless conflict when it comes to the role
which they claim Cox played in Zelya's discharge. Su-
pervisor Gutierrez testified that Cox, who does not speak
or understand Spanish, used Gutierrez as a translator,
and told Zelya that Cox could solve any of Zelya's prob-
lems, just like Miller, but that Zelya stated he wanted to
talk to Miller, not Cox. Supervisor Adolphus at first un-
equivocally testified that he was not able to overhear
what Cox said to Zelya because at the time he was 35
feet away at line 2. Later, Adolphus inconsistently testi-
monial demeanor, as I have previously indicated, was poor, whereas
Zelya's was good
MILLCRAFT FURNITURE CO. 601
fled that- he was only 4 feet away 'from Zelya and over-
heard Cox, in English, trying to tell Zelya that Cox
wanted to talk with him and that Zelya told Cox he
wanted Jo speak with Miller. Adolphus also testified,
contrary to Gutierrez, that it was Gonzalez, not Gutier-
rez, who was translating for Cox . Gonzalez, on the other
hand, denied this and testified that he, observed Zelya
move away from Cox before Cox even had a chance to
say anything to him. Cox testified that when he arrived
at Zelya's work station, accompanied by Gutierrez and,
Morales, Zelya was screaming in Spanish and gesturing
to a group of 60 or 70 employees who were gathered in
front of line I. Gutierrez, according to Cox, told Cox
that Zelya was telling all the employees he wanted them
to stop work and follow him out of the plant, where-
upon, Cox testified, he tapped Zelya on the shoulder to
get his attention and told him , in English that "I will talk
to you. I am the vice president of this company." In re-
sponse, Zelya turned around to look at Cox and an-
swered "no." He then turned back toward 'the employees
and resumed his screaming in Spanish. Neither Gutierrez
nor any of Respondent's other witnesses corroborated
this testimony. I find it difficult to believe that, if Zelya
was screaming and gesturing to a group of 60 or 70
workers that they should join him in ceasing to work,
one of Respondent's other witnesses, in particular Gu-
tierrez or Morales, who were close by, would not have
remembered this. As decribed, supra, Gutierrez gave a
different account of what occurred than Cox, and Mo-
rales merely testified that Cox spoke in English to Zelya
and "was trying to" ask him what his problem was," and
that Zelya "sort of shrugged his shoulder."
Lastly, Morales' prehearing affidavit, which he submit-
ted to the Board_ during the investigatory stage of this
case not too long after Zelya's termination, significantly
fails to mention Cox's name or Cox's alleged role in the
events leading up to Zelya's termination ." In view of
the poor demeanor of Respondent's several witnesses
when they testified, about Cox's involvement, and their
above-described inconsistent testimony , Lam of the view
that the reason Morales, during the investigation of this
case, failed to inform the Board about Cox's involvement
in Zelya's termination was that Cox was not involved. I
farther find that Morales' testimony and the testimony of
Respondent's other witnesses about the events which
supposedly occurred after Zelya refused to obey Mo-
rales' request that he go to Morales' office were not
credible.
2. Analysis and conclusions
"To determine whether an employee's conduct is pro-
tected by the Act, the Board forges `an adjustment be-
tween the undisputed right to self-organization assured to
employees . . . and the equally undisputed right of em-
ployers to maintain discipline in their establishments."'
Hamburg Industries, 271 NLRB 683, 684 (1984), and
11 Morales' affidavit in pertinent part reads as follows:
I left the site [after Zelya declined to meet with him] and called the
police to have him removed , since I could see that I could not get
him removed. The police came five to 10 minutes later. The police
came into the assembly department, and I took them to Zelya. I told
Zelya to follow me with ,=the pohee.
cases cited. In applying this balancing test, the Board has
held that, if an employer requests an employee to leave
the work area and go to another location where further
discussion can occur in private , the employee acts at his
peril if he declines to do so, even though the employee's
refusal occurs in the context of Section 7 activity. Road-
way Express, 246 NLRB 1127 (1979); see also Joseph F.
Whelan Co., 273 NLRB 340 (1984). In Roadway Express,
an employee's supervisor requested that the employee
leave the work area and accompany him to an office.
The employee refused, stating that he would do, so only
when his union steward could be present. After refusing
the supervisor's second request to go to the office, the
employee was disciplined for disobeying orders. The
Board (Chairman Fanning and Member Jenkins dissent-
ing) found that the employee properly invoked his Wein-
garten rights" when initially asked to accompany his su-
pervisor to the office, but that his refusal to leave the
work area "clearly undermined [the employer's] right to
maintain discipline and order," and subjected him to
whatever sanctions the employer deemed appropriate to
impose. Roadway Express, 246 NLRB at 1128. The Board
reasoned that its interpretation 'of Weingarten had to be
tempered by a sense of industrial reality to avoid inter-
ference with legitimate employer prerogatives and, in
this regard, expressly adopted the rationale of the admin-
istrative law judge set forth in Chrysler Corp., 241 NLRB
1050, 1053 (1979), as follows:
The employer has a legitimate and substantial inter-
est in reserving the unencumbered right to request
an employee to report to anoffice in order to avoid
an encounter on the plant floor which may tend to
disrupt production and interfere with other employ-
ees' job performance. An employer should have the
right, if it chooses, to carry such an encounter to an
office away from the production area.
See Roadway Express, 246 NLRB at 1128 fn. 4.
In this case, Zelya's refusal to report to the office as
directed by Plant Manager Morales clearly undermined
Respondent's right to maintain discipline and order, espe-
cially as it occurred in the employees' work area and
was witnessed by other employees. Zelya's refusal to ac-
company Morales to his office constituted a flagrant
challenge to Morales' authority, and I see no reason that
Respondent should be required to condone Zelya's insub-
ordination, particularly when, as here, there is no show-
ing that compliance with Morales' instruction would
have prevented Zelya from joining, the other employees
and expressing his grievances about Morales' treatment
of the employees directly to Respondent's president. In
other, words, assuming that the employees ' concerted
conduct-going directly to Respondent's president in a
group and voicing their grievances to him about Mo-
rales-was protected concerted activity, Zelya's compli-
ance with Morales' request that he accompany him to
the office would not have interfered with Zelyes right
to participate in that concerted activity. It is for these
reasons I find that, by refusing to obey Plant Manager
12 NLRB v. !. Weingarten , 420 U.S. 251 (1975).
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morales' order to leave the production area and accom-
pany Morales to his office, Zelya engaged in unprotected
insubordination. Roadway Express, supra.
Having found that Zelya engaged in unprotected in-
subordination when he refused to obey Plant Manager
Morales' request to leave the work area and accompany
him to the office, the question remaining is whether this
was the reason Respondent discharged Zelya, or wheth-
er he was discharged for joining with the other employ-
ees in their efforts to meet with Respondent's president
to express their grievances about Plant Manager Morales'
treatment of the employees.
Morales testified that Zelya was discharged because of
his "insubordination"-his refusal to obey Morales' in-
struction to come to his office. Morales' testimony is sup-
ported by the following: the timing of the discharge,
coming as it did hard on the heels of Zelya's refusal to
obey Morales' personal request that he accompany him
to his office; Morales' reputation as an extremely strict
disciplinarian; the lack of evidence of animus by Morales
toward the employees because of their concerted effort
to complain directly to Respondent's president about
Morales' alleged mistreatment of the employees; and Mo-
rales' failure to disipline any,of the other three or four
employees who leadman Sierra had told him were jointly
responsible with Zelya for causing the employees' work
stoppage connected with the employees' unsuccessful at-
tempt to speak directly to Respondent's president about
Morales' alleged mistreatment of the employees." S
Although the above-described circumstances support
Morales' testimony that Zelya was discharged because of
his insubordination, Zelya's change-of-status report,
which was approved by Morales, states, in effect, that
Zelya was discharged not only for his insubordination
but for the additional reason that he was responsible for
the employees' work , stoppage which occurred after
lunch on June 15 when they tried to meet with Respond-
ent's president instead of returning to work.14 Assuming
that the second reason set forth in Zelya's change-of-
status report is sufficient to establish a prima facie show-
ing that Zelya's role in the employees' concerted work
stoppage was a motivating factor in Respondent's deci-
sion to discharge him,15 I agree with Respondent's con-
tention that the record establishes Plant Manager Mo-
rales would have discharged Zelya even absent Morales'
belief that Zelya was, responsible for the work stoppage.
In, my opinion, Respondent has shown that Zelya's refus-
al to obey Plant Manager Morales' personal request that
he accompany Morales to his office, which was wit-
la I recognize that none of the other employees who Morales was told
were jointly responsible with Zelya for the work stoppage were dis-
charged, even though, like Zelya, they ignored the requests of leadman
Ruelas and Supervisor Adolphus to go to Morales' office. However,
unlike Zelya, these other employees did not disobey Morales' personal re-
quest that they accompany him to the office.
14 The change-of-status, report reads as follows: "Employee Terminat-
ed: Reason(s): Failure To Follow Instructions. Willfully Creating Work
Stopage [sic]. Lost Production Time Of 1 Hour, Causing 24 Employees
To Stop Work Do [sic] To His Own Actions."
15 I have drawn no inference of illegality from Morales' refusal to give
Zelya a reason for his discharge because his refusal was consistent with
past practice . The record shows that Morales has the reputation among
the employees of discharging employees with good work records without
giving them any reason for their discharges.
nessed by other employees, is such gross insubordination
that it would have provoked Zelya's discharge even
absent Morales' belief that Zelya was responsible for the
employee work stoppage involved in this case . ^ This is
particularly true when, as here, Plant Manager Morales
is a strict disciplinarian who has the reputation's of dis-
charging good workers for no apparent reason, and there
has been no showing that Morales excused such egre-
gious misconduct on the part of other employees. I have
considered that the other employees who Morales was
told were jointly responsible with Zelya for the work
stoppage were not discharged, even though, like Zelya,
they did not obey leadman Ruelas' and Supervisor Adol-
phus' requests to go to Morales' office. However, unlike
Zelya, none- of these other employees disobeyed Morales'
personal instruction that they go to his office. It was
only Zelya who, with other employees witnessing the
event, disobeyed Morales' personal request that he ac-
company him to his office.
In view of the foregoing, I conclude that Respondent
discharged Zelya because he refused to accompany Plant
Manager Morales to his office and that this refusal con-
stituted unprotected insubordination.16 I therefore shall
recommend that the consolidated complaint be dismissed
insofar as its allegations encompass the charge filed in
Case 21-CA-23289.
C. Buendia 's Suspension and Discharge (Case 21-.;CA-
23290)
1. The evidence
a. A chronology
Charging Party Juan Buendia was employed by Re-
spondent at its Bell Gardens, California plant from July
1, 1980, until his June 28, 1984 discharge. He was em-
ployed as a spray painter in the Company's finishing' de-
partment and worked Tuesday through Friday, 6 a.m. to
4:30 p.m. Mill Department Supervisor Willy Gutierrez
was in charge of the department where Buendia worked.
Gutierrez took his orders from the person responsible for
the plant's operation, Plant Manager Robert Morales.
During the time material, there were approximately
210 employees employed in Respondent's Bell'Gardens,
Califoria plant. None of these employees were represent-
ed by a labor organization.
In April 198419 the Union commenced a campaign to
organize Respondent's Bell Gardens employees. Buendia
supported the Union's. campaign by attending several or-
ganizational meetings held at Ford Park, a public park
near the plant. Also during April he verbally solicited
employees to support the Union and gave union authori-
zation cards to 20 employees. He engaged in his union
activities during his break periods in the Company's
parking lot and, outside working hours, at Ford Park and
at several check-cashing stores frequented by the em-
ployees on paydays. The employees failed to respond to
16 In view of this finding, I do not reach the issue of whether, as con-
tended by Respondent, the employees' concerted activities were not pro-
tected concerted activities.
17 All dates refer to 1984 unless otherwise specified.
MILLCRAFT FURNITURE CO 603
the Union's campaign and, because of this lack of sup-
port, thti Union discontinued the organizational campaign
in late April or in early May
On Monday, June 18, the Union resumed its organiza-
tional campaign when Buendia visited the Union's office
and union organizer Cruz Martinez gave him several pe-
titions to circulate among the employees for their signa-
tures. These petitions stated that the employees who
signed wanted the Union to be their collective-bargain-
mg agent and that they were seeking a Board-conducted
secret-ballot election. On June 19 and 20, Buendia, assist-
ed by three or four other employees, solicited employees
to sign the petitions. They apparently succeeded in per-
suading approximately 90 percent of the Company's em-
ployees to sign the petitions. Buendia personally persuad-
ed 40 employees to sign the petitions he circulated. He
engaged in this activity in the company parking lot
during his break periods and, during his nonworking
hours, at Ford Park and several check-cashing stores fre-
quented by the employees.
On June 20, after work, Buendia returned to the union
office where he told union organizer Martinez that they
had secured sufficient signatures for the Union to peti-
tion the Board for an election and gave Martinez the
completed petitions Thereafter, from June 21 until his
June 27 suspension, Buendia , during his break periods in
the Company's parking lot, continued to speak to em-
ployees in favor of union representation.
On June 27 at 1.30 p.m, Supervisor Gutierrez told
Buendia that Plant Manager Morales wanted to speak to
him.18 Gutierrez escorted Buendia to Morales' office
where, in Gutierrez' presence, Morales spoke to him
Morales stated that he had noticed Buendia's attendance
record was bad. Buendia acknowledged that this was
true and, in response to Morales' inquiry about the
reason for his poor attendance record, stated that he had
car trouble and a problem getting up in the morning.
Morales showed Buendia the 1984 absentee calendar
which the Company's personnel department maintained
for him. He directed Buendia's attention to the month of
June 1984, which showed that Buendia had been absent
from work on Friday, June 1, and late for work on both
Friday, June 8, and Friday, June 15 Buendia stated that
the timeclock had not been working correctly on the 2
days he was late Morales pointed out to him that on
June 15 he did not come to work until the middle of the
day so it could not have been the malfunction of the
timeclock that had caused him to be late Buendia ex-
plained that on June 15 on his way to work his automo-
bile had broken down on the freeway, that he had tele-
phoned Gutierrez and explained his predicament, and
that Gutierrez had given him permission to come to
work late after he had seen to it that his automobile was
towed away Gutierrez denied that Buendia had tele-
phoned him on June 15 for permission to be late for
work Morales asked Buendia, "[W]hat can we do with
you?" Buendia answered that this was Morales' decision.
19 The description of Buendia's June 27 meeting with Morales is based
on a composite of Buendia's, Morales', and Gutierrez testimony When
they testified about this meeting, their testimony was, in significant re-
spects, mutually corrobrative and in no respect did they contradict one
another
Morales stated that he intended to review Buendia's
entire record and to discuss the matter with Supervisor
Gutierrez and that in the meantime Buendia was sus-
pended from work immediately and should not report
for work the next day at the usual 6 a.m. starting time,
but should report at 7 a.m to Morales' office.
Immediately following his June 15 interview with Mo-
rales, Buendia accompanied Supervisor Gutierrez to Gu-
tierrez ' office where they had a brief conversation. Buen-
dia asked why he had been suspended Gutierrez stated
that he did not know the reason , and stated that Morales
was "running things his way " Buendia stated that until
his conversation with Morales that day no one had com-
plained to him about his June 15 tardiness, and that he
believed the real reason for his suspension was not his at-
tendance record but his activities on behalf of the Union.
Gutierrez once again stated that he did not know why
Buendia had been suspended . He told Buendia to report
to the Company the next day at 7 a . m., rather than at the
usual 6 a . m. starting time.
When Buendia left the plant on June 27 , after his sus-
pension , he telephoned union organizer Martinez and
told him that he had been suspended for the rest of the
day and had been instructed to come to the plant the
next morning at 7 a . m. to talk with Plant Manager Mo-
rales. Martinez advised him to be patient, and told him
that union representatives intended to distribute leaflets
later that day at the end of the employees ' work shift
and the next day intended to hold a short meeting with
the emplloyees outside the plant shortly before the em-
ployees went to work.
The union representatives came to the plant on June
27 shortly before 4 30 p in , when the work shift ended,
and stationed themselves at the entrance to the company
parking lot . As the employees left, they handed them
leaflets explaining the benefits of union representation.
Buendia joined them at the entrance to the parking lot
and assisted them in distributing the leaflets to the em-
ployees. He did this for approximately 10 minutes Previ-
ously when Buendia engaged in his activities on behalf of
the Union, as described in detail supra, he had been "se-
cretive" because he feared that he might be fired if the
Company learned of his union activities Buendia testified
that the reason he now brought his support for the union
out into the open was because he felt that he had been
suspended for his union activities and that Morales in-
tended to fire him , so he had nothing to lose by bringing
his union activities into the open
On June 28 several union business representatives
came to Respondent 's parking lot at approximately 5.30
a.m. and distributed leaflets describing the benefits of
union representation to the employees as they entered
the parking lot.19 They were joined by four of Respond-
ent's employees, one of whom was Buendia, who assisted
them in handing out the leaflets . Buendia also spoke to
employees in the parking lot and advised them that there
would be a brief union meeting held in the parking lot
shortly before the start of work Thereafter , at approxi-
mately 5:40 a . m., a group of between 30 and 50 employ-
19 The employees began work at 6 a in
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, gathered together in the parking lot near the coffee
truck . They were addressed by some of the union busi-
ness agents and by Buendia, who encouraged them to
support the Union . After the employees were gathered
together and the meeting . had begun, Supervisor Gutier-
rez and Plant Manager Morales came out from the, plant.
Morales was initially approximately 60 feet away from
the employees and union business agents. Buendia point-
ed out Morales to Walter Englebert, the Union's princi-
pal representative . Englebert left the employees and
walked toward Morales , who was walking toward the
employees. When they met, Englebert introduced him-
self, told Morales that the Union represented more than a
majority of Respondent's employees, and asked that Re-
spondent recognize and bargain with the Union . Morales
stated that he was a very busy man and that Englebert
would have to speak to Morales' secretary to arrange for
an appointment . Englebert tried to hand Morales a letter
from the Union demanding recognition and asked to
speak to Respondent's president. Morales refused to
accept , the letter and stated that Respondent 's president
was not in the plant. ' Englebert then walked back to
where the employees were gathered with the other union
business agents. Morales, who apparently was on his way
to the coffee truck parked in the area , stopped where
Englebert was standing and told him that the union busi-
ness agents were on private property . Englebert stated
that they would leave when the coffee truck left. Mo-
rales did not press the issue and apparently continued on
his way to the coffee truck for his coffee. Buendia,
during Englebert's conversation with Morales, was
standing with another union business agent about 7 feet
away.20
After the union business agents left the plant parking
lot on June 28, Buendia, after waiting for a short period
of time, entered the ,plant at approximately 6:30 a.m. and
spoke to Supervisor Gutierrez in his office . Buendia
asked whether he should go to work . Gutierrez an-
swered in the negative, stating that Buendia had to talk
with Plant Manager Morales first. Buendia waited in Gu-
tierrez' office until 10 a.m. Whenever he asked Gutierrez
when Morales intended to speak with him, Gutierrez re-
plied, in effect, that he should be patient . Finally, at 10
a.m., Gutierrez told Buendia that he had been fired and
gave him his final paychecks. Buendia asked for the
reason that he was fired . Gutierrez told him that he did
not ' know the reason . Buendia observed that his final
paychecks did not include accrued vacation pay. gutier
rez told him to wait in his office while he went and
spoke to Morales about Buendia 's vacation pay. When
Gutierrez returned , approximately 30 minutes later, he
handed Buendia a check for his vacation pay and asked
him to sign a sheet of paper which stated that the reason
for Buendia's termination was "due to poor attendance."
20 The above description of what took place in the Company 's parking
lot on June 28 before work ' is based on a composite of Buendia's and
Englebert's testimony . When they testified about what took place at this
time, they impressed me as credible witnesses . Morales testified that he
did not observe Buendia in the parking lot that morning and that he did
not observe him distributing union literature to the employees or solicit-
ing the employees , nor was he informed by anyone else that Buendia had
been engaged at this time in this conduct.
Buendia refused to sign it, explaining that he did not feel
this was the reason for his discharge . Gutierrez lrespond-
ed by stating that he did not know the reason for Buen-
dia's discharge . He explained that Plant Manager Mo-
rales "wanted to run things his way."
The above description of the manner in which Buendia
was notified about his termination is based on Blendia's
testimony . Gutierrez testified that on June 28 at approxi-
mately 10 a.m. he was present in Morales ' office when
Morales told Buendia about his discharge . He testified
that the only thing which was stated during this meeting
was that Morales told Buendia he had made up his mind
and his decision was that he had to terminate Buendia
"because of his bad record ," and that after he was told
of his termination Buendia said nothing and went with
Gutierrez to Gutierrez' office to wait for his final pay-
checks. Morales, on the other hand , presented a com-
pletely different picture of what supposedly took place.
He testified that he went over each of the written repri-
mands which had been given to Buendia for his poor at-
tendance, read them to Buendia , and asked if Buendia
had signed them and knew that he was at the state ' of
discipline where he could be -terminated . When Buendia
answered "yes," Morales told him that "based on this, I
am going to have to terminate you." Buendia answered
"fine" and Morales told him to go with Gutierrez to get
his paychecks.
I have rejected Gutierrez' and Morales' testimony
about the manner in which Buendia was notified about
his termination and have credited Buendia's testimony
because Buendia's testimonial demeanor was good,
whereas Morales' and Gutierrez ' was poor . In addition,
as described above, Morales' and Gutierrez' testimony
was not mutually corroborative; rather, Morales' testimo-
ny about the alleged meeting did not jibe with Gutierrez'
testimony. Also, on a matter of significance which_ was
closely related to the alleged June 28 termination inter-
view, Gutierrez and Morales gave contradictory testimo-
ny. Morales testified that on June 27 after the end of the
work shift he met with Gutierrez, at which time he in-
formed Gutierrez that he felt Buendia should'be termi-
nated because of his poor attendance record and asked
for Gutierrez' opinion;,and that they then discussed the
matter, with Gutierrez agreeing that Buendia should be
fired for his poor attendance record. Gutierrez contra-
dicted Morales' testimony . He testified that no such
meeting between himself and Morales' occurred .21 It is
for the foregoing reasons that I have credited Buendia's
and rejected Morales' and Gutierrez' testimony about the
manner in which Buendia was notified about his termina-
tion.
On June 29 the Union, in Case 21-RC-17463, filed a
representation petition with the Board 's Regional Office
asking for a secret-ballot election in a bargaining unit of
production, maintenance, and truckdriver employees em-
ployed at Respondent's Bell Gardens, California plant.
21 I find it difficult to believe that if such a meeting had in fact oc-
curred, as Morales testified , Gutierrez would have forgotten about it. In
view of the contradictory testimony of Morales and Gutierrez and Mo-
rales' poor testimonial demeanor, I am persuaded that Morales did not
consult with Supervisor Gutierrez about his decision to fire Buendia.
MILLCRAFT FURNITURE CO. 605
Respondent and the Union thereafter entered into an
election agreement, which was approved by the Board's
Regional Director , and, pursuant to this agreement, a
secret-ballot representation election was conducted in the,
above-described unit by the Board on July 16, which
was won by the Union by a substantial margin.
There is no evidence that Respondent , through its su-
pervision and management , ever made any statements
which would warrant the inference that Respondent was
either hostile toward union representation or opposed to
its employees supporting the Union or any other, union.
b. Buendia 's attendance record
Buendia, who began work for Respondent on July 1,
1980, received a written disciplinary warning on June 28,
1983, which stated that he was always late, that he did
not show up for work when asked, and that- he did not
notify Respondent when he was unable to come to work.
Buendia was notified in this written warning that he
would be given a 1-week suspension without pay if he
continued to engage in this conduct. On January 27,
1984, Buendia was issued a second written disciplinary
warning , This warning stated that Buendia had been late
and absent from work on several occasions and that Re-
spondent would no longer tolerate this conduct, and
warned that Buendia would be terminated if he contin-
ued to engage in this conduct.
The record shows that from the date of his January 27
written disciplinary warning until his June , 27 suspension,
Buendia was absent from work once, June 1, and tardy
11 days: February 9 and 10; May 18, 25, and 31; and
June 8, 15, 20-22, and 26.22
As I have noted previously, Morales became plant
manager on approximately May 1- The supervisor re-
sponsible for Buendia's department , Willy Gutierrez, tes-
tified that he had several conversations with Morales
about Buendia's tardiness. When asked when the first
such conversation occurred, he testified: "They hap-
pened pretty often . He [Buendia] comes late often, so we
always discuss him." However, it is undisputed that prior
to Buendia's June 27 suspension Morales did not speak to
him about his absences or tardiness. There is also no evi-
dence that Supervisor Gutierrez or Buendia 's immediate
supervisor ever spoke to him about his absences or tardi-
ness following his January 27 written warning. This was
true even when Buendia, due to car trouble, was 28 min-
utes late on June 21 and approximately 6-1/2 hours late
on June 15.2 3
22 The employees ' absentee calendars maintained by Respondent's per-
sonnel department state that a number written in red denotes an unex-
cused absence, whereas a number written in black denotes an excused ab-
sence. Buendia's June 1 absence was marked in black on his absentee cal-
endar, thereby indicating that it was regarded by Respondent as an ex-
cused absence . I recognize that Morales testified that the use of black
crayon, as distinct from red, in marking the employees' absentee calen-
dars did not mean that the absences were excused. I have rejected his
testimony because of his poor testimonial demeanor ; his testimony was
contrary to the explanation given for the use of red and black markings,
which is set , forth on the face of the employees ' absentee calendars; and
Respondent's personnel clerk, who is responsible for maintaining the em-
ployees' absentee calendars , was not called to corroborate his testimony.
88 Buendia testified that on June 15 when his car broke down on the
freeway on his way to work he telephoned the plant and spoke to Super-
visor Gutierrez , who gave him permission to report to work late after he
-Respondent -has only one timeclock for its production
employees . Due to the long line of employees waiting to
punch this timeclock , sometimes employees who have ar-
rived for work on time punch in late. In this regard, the
record shows that, during the week ending June 22, 64
of the 189 employees ' who used the timeclock punched in
anywhere between 1 and 6 minutes late on one or more
days and that, during the next week on June 26, 52 of
them punched in between 1 and 8 minutes late .24 Also
on occasion the timeclock did not punch an employee's
timecard accurately, and it showed the employee as
being tardy when in fact the 'employee's card had been
punched in on time.25
c. Morales' reason for suspending and discharging
Buendia
Morales, who became plant manager on approximately
May 1, testified that 2 or 3 weeks before Buendia's June
28 discharge he instituted a new policy whereby each
day an employee was late for work Respondent 's person-
nel clerk was supposed to record this in the employee's
absentee calendar, 26 and that, when the personnel clerk
observed clusters of tardiness and/or absences, the clerk
was supposed to bring this state of affairs to Morales' at-
tention. Morales testified that on June '27, pursuant to
this policy, the personnel clerk brought to him Buendia's
personnel folder, which included Buendia's two written
disciplinary warnings for poor attendance described in
detail above and Buendia's 1984 absentee calendar. In
view of the two disciplinary warnings in Buendia's per-
sonnel folder, Morales, according to his testimony, decid-
ed to suspend Buendia in order to give himself time to
decide whether Buendia's recent poor attendance record
warranted his discharge.27 He further testified that in
had seen to it that his automobile was towed away. Gutierrez was unable
to deny that he received such a phone call. Under the circumstances, I
have credited Buendia's testimony because, when he testified about this
phone call, his testimonial demeanor was good . The fact that Morales tes-
tified his experience has been that he was not able to place a personal
telephone,call from an emergency freeway telephone box does not, in my
view, impugn Buendia 's testimony.
24 Buendia punched in 4 minutes late on June 20, 1 minute late on June
22, and 8 minutes late on June 26. He did not testify that this tardiness
was caused in whole or in part by long lines at the timeclock.
25 Buendia testified that this happened to him once, during the middle
of June 1984, and that he called the mistake to the attention of his imme-
diate supervisor, Donald Warren, and his department supervisor, Willy
Gutierrez:
88 Respondent's personnel department maintains separate absentee cal-
endars for each employee that show which days of the month an employ-
ee is either absent or late. Daily, between 7 and 8 a .m., someone from the
personnel department, through the use of Respondent 's computer which
is hooked up to Respondent's timeclock, determines which employees are
late or absent from work that day and marks this information on the em-
ployees' absentee calendars.
27 Morales' affidavit, submitted to the Board's Regional Office on
August 8 in connection with the Board's investigation of'Buendia's unfair
labor practice charge, is inconsistent with Morales' above-described testi-
mony that the two disciplinary warnings he discovered in Buendia's per-
sonnel file triggered his June 27 decision to suspend him. In the affidavit,
referring to his June 27 meeting with Buendia, Morales states, in perti-
nent part, "I think we [referring to himself and Supervisor Gutierrez] did
tell [Buendia] that he was suspended for the rest of the day. We did not
have his records with us at that time. I did not know about his warnings
given in 1983 and 1984 at this time. I don't recall if warnings were dis-
Continued
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eventually deciding to discharge Buendia he relied on
the same records which had caused him to suspend
Buendia, the absentee calendar and disciplinary warn-
ings, but the reason he did not discharge him immediate-
ly was that Respondent recently had changed personnel
clerks, which effected Respondent's recordkeeping, and
due to this he asked the personnel clerk to be sure he
had been given all of the information pertinent to Buen-
dia's situation . When asked if there was any other reason
he suspended Buendia on June 27 rather than discharge
him, Morales testified , "[N]o, I don't like to normally fire
people right there on the spot until I really look at it,
and sit down and talk it out."
In response to Buendia's unfair labor practice charge
filed in Case 21-CA-23290 on July 6, Respondent,
through its labor relations consultant, Kenneth R. White,
Inc.,28 on July 11 and August 14, wrote identical letters
to the Board agent in charge of investigating the charge,
copies of which were mailed to Respondent, which, in
pertinent part, read:
Juan Buendia was discharged for excessive absen-
teeism and/or 'tardiness; violation of Company
policy-after receiving several warning notices.
Any union activity he may or may not have en-
gaged in was and is of no concern of the Company;
only his performance as an employee-means being
dependable and on the job when due.
We enclose the following for substantiation:
copies of the absentee calendar of Buendia for 1983
and 1984 (note he was absent the last 2 fridays in
May and the first 3 fridays in June). Warning
Notice of June 28, 1983 (signed by Claimant),
Warning Notice of January 1, 1984, (signed by
Claimant), and a copy of the Termination Report
on June 28, 1984 (which claimant refused to sign
before witnesses).
In view of the above we respectfully request, this
charge be dismissed as having been filed without
foundation, of fact; no - employee (regardless of
reason) could be absent ' on 5 consecutive fridays
and remain employed by any company.
Buendia's absentee calendar for 1984, which was en-
closed with these letters, did not indicate that Buendia
was late for work on June 26 or from June 20 through
22. As far as the calendar is concerned, Buendia was last
late for work on June 15 and since that time his attend-
ance was perfect.
It is undisputed that when Buendia was suspended on
June 27 and discharged on June 28 his absentee calendar
maintained by Respondent and examined by Morales did
not show Buendia had been late for work on June 26 or
cussed at all during this time." Morales was unable to explain this incon-
sistency between his testimony and affidavit . As a matter of fact , he testi-
fied that what was contained in the affidavit was true because when he
gave the affidavit the events were fresher in his mind
28 Besides representing Respondent during the investigation of this
case, Kenneth R. White, Inc. filed the answer on behalf of Respondent in
this case.
from June 20 through 22;29 it showed a perfect attend-
ance record after June 15. However , Morales' testified
that he knew Buendia was tardy on June 26 end from
June 20 through 22 because the personnel clerk save him
this information. In this regard, he testified that he was
"pretty sure" the personnel clerk on June 27 had given
him Buendia's timecards for that period in June 1984. He
later qualified this testimony, now testifying : "[Vjaguely,
very vaguely, I remember having the time cards there."
Considering Morales' poor testimonial demeanor, con-
sidering his poor recollection of how he supposedly
learned of Buendia's June 26 and June 20 through'22 tar-
diness, considering that on June 27 Morales did not men-
tion to Buendia that Buendia had been late for work on
those dates, and considering, as described in detail supra,
that Respondent 's explanation offered to the Board's Re-
gional Office during the investigation of this case signifi-
cantly omitted to mention that, in deciding to fire Buen-
dia, Respondent relied on Buendia's tardiness on June 26
and June 20 through 22, I am persuaded that, when Mo-
rales suspended and fired Buendia , Morales did not,real-
ize Buendia had been late for work on June 26 and June
20 through 22 and this tardiness played no part in Buen-
dia's suspension and discharge . I cannot believe that, if
Morales had known about this tardiness and had relied
on it in , making his decisions to suspend and discharge
Buendia, Respondent would not have included this infor-
mation in its correspondence to the Board justifying its
reasons for Buendia 's suspension and discharge.
2. Discussions and conclusions
a. Buendia 's suspension
As described in detail supra, Juan Buendia, the em-
ployee who initiated and spearheaded the resumption of
the Union's organizational campaign at Respondent's
plant; was suspended from his job shortly after having
engaged in these activities when , on June 27, Plant Man-
ager Morales notified him that he was suspended from
work pending a further review of his record because of
his poor attendance. The complaint does not specifically
allege Buendia's June 27 suspension violated the Act.
However, the June 27 suspension is closely related ' to
Buendia's June 28 discharge, which is alleged as a viola-
tion of the Act, and the parties fully litigated the ques-
tion of whether Buendia's suspension violated the Act.
Respondent contends that the General Counsel has
failed to prove Buendia was suspended because of his
union activities because, among other things, the record
does not establish Respondent knew of Buendia 's union
activities at the time of his suspension or that Respond-
ent was opposed to the employees being represented by
the Union. The General Counsel contends that knowl-
edge of Buendia 's union activities, as well as the illegal
motivation for his suspension, may be inferred from the
particular circumstances surrounding the suspension. The
General Counsel relies on these circumstances : (1) Buen-
29 There are indications in the record that , during the week ending
June 22, there were other employees besides Buendia who were late for
work whose tardiness was not marked in the employees ' absentee calen-
dars by the personnel clerk.
MILLCRAFT FURNITURE CO. 607
dia frequently solicitied other employees, to support the
Union, not only away from the Company's premises but
also in the company parking lot during his break periods;
(2) Buendia was suspended soon after he had initiated
and spearheaded the resumption of the Union 's organiza-
tional campaign ; (3) Plant Manager Morales knew about
the Union's campaign and believed that Buendia was a
prounion sympathizer; (4) Buendia's supervisor, Gutier-
rez, told him that he did not know the reason for Buen-
dia's suspension and failed to, deny Buendia 's statement
that he had been suspended because of his union activi-
ties; (5) it was not until his June 27 suspension that any
supervisor , spoke to Buendia about his 1984 absences and
tardiness; (6) the "cluster" of Fridays on which Buendia
was absent and/or tardy and which Morales testified
prompted him to review Buendia's attendance record re-
sulting in Buendia's suspension took place approximately
12 days before Buendia's June 27 suspension; (7) Morales
was unable to recall the names of employees , other than
Buendia, whose attendance records he examined and
there is no evidence that other employees were suspend-
ed and/or terminated as the result of such an examina-
tion;S° (8) as described in detail supra, Morales' testimo-
ny concerning his decision to suspend Buendia was in-
consistent in significant respects with what he stated in
his prehearing affidavit ; and (9) Respondent, prior to the
hearing, updated Buendia's 11984 absentee calendar for
June to show that he had been late on June 20 through
22 and June 26, even though when Morales relied on the
information in the calendar to suspend and discharge
Buendia the calendar did not show Buendia as having
been late for work on those days.
The aforesaid circumstances relied on by the General
Counsel are insufficient in my opinion to establish that
Respondent was aware of Buendia's union activities at
the time it suspended him. There is no direct evidence
that Respondent, at the time it suspended him, was
aware of Buendia's active support for the Union. The
record is devoid of evidence that Plant Manager Morales
or any other company representative indicated they
knew Buendia , was advocating unionism . In addition,
Morales, the person who decided to, suspend Buendia,
testified that, although he know about' the Union's orga-
nizational campaign and believed the majority of the em-
ployees, including , Buendia, were prounion, he was un-
aware of Buendia's union activities . S 1 Not only is Mo-
rales' testimony uncontradicted but, when viewed in the
context of the, whole record, it is not inherently implausi-
ble. 'Quite the opposite, Morales' disclaimer of any
knowledge of Buendia 's union activities at the time of his
suspension is supported by Buendia's admission that prior
to his suspension he did not openly publicize his support
for the Union, but instead attempted, to., keep his union
activities a secret from Respondent. Morales' disclaimer
is further supported by the lack of evidence that Re-
30I note there is no evidence employees with the same or similar at-
tendance records as Buendia who, like Buendia, had received written dis-
ciplinary warnings were treated by' Morales less severely than Buendia.
$1 Morales testified that he believed Buendia was prounion not because
of any personal knowledge or information acquired from other persons,
but because of his belief that the vast majority of the employees were
prounion.
spondent tried to identify the employees who were
prounion or who were engaged in union activities. I rec-
ognize that under certain circumstances the Board will
infer an employer knew about the union activities of a
particular ' employee based on its so-called small-plant
doctrine.3 2 Assuming, arguendo, that Respondent 's plant,
which employed 210 employees during the time material
herein, is a, "small plant," I am of the opinion that under
the circumstances of this case the small-plant doctrine
does not support an inference of knowledge . Buendia
made a deliberate effort to conceal his union organizing
activities from the eyes and ears of supervision and, as
described in detail supra, none of his union activities
took place inside the plant . Regarding his union activities
which took place on the company parking lot during his
break periods, there is no indication that supervisory per-
sonnel were present. In view of Buendia's efforts to keep
his union activities secret, it is reasonable to infer that su-
pervisors were not present , or at least that conversations
were conducted in such a way as to prevent supervisors
from learning of the nature of the conversations. Conse-
quently, I conclude that any inference which otherwise
might have been drawn concerning Respondent's knowl-
edge of Buendia's union activities as a result of the size
of Respondent's operations is negated by the circum-
stances under which those activities took place. K & B
Mounting, 248 NLRB 570 (1980). The foregoing reasons,
particularly Buendia's effort to conceal his union activi-
ties from the eyes and ears of Respondent, the lack of
evidence that Respondent attempted to identify those
employees who were union activists or sympathizers, the
fact that Buendia's union activities took place outside Re-
spondent's plant, and the lack of evidence that any repre-
sentatives of Respondent were ever present when Buen-
dia engaged in his union activities , have persuaded me
that the circumstantial evidence relied on by the General
Counsel is not sufficient to prove that Respondent knew
about Buendia's union activities when it suspended him.
I also note that the above-described circumstances,
relied on,by, the General Counsel to establish that a moti-
vating factor in Respondent's decision to suspend Buen-
dia was his union activities, omit any, mention of evi-
dence which would support an inference of antiunion
animus or that Respondent was even opposed to union
representation. The reason for this is that there is no evi-
dence Respondent manifested animus toward either the
Union for organizing the employees or Buendia or any
offits other employees for their union activities or proun-
ion sympathies. Not only is there no evidence of any
other unfair labor practices committed by Respondent,
but also there is no evidence that Respondent's repre-
sentatives made statements or engaged in other conduct
which would support the inference of antiunion animus
or that Respondent was opposed to the union represent-
ing its employees. This is despite the fact that the
Union's organizational campaign lasted almost 1 month
and involved almost 200 employees. In short, there is no
evidence, direct or circumstantial, which supports the,in-
32 Wiese Plow Welding Co., 123 NLRB 616 (1959).
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terence of antiunion animus or that Respondent was op-
posed to the Union representing its employees.
Based on the foregoing , I find that the two essential
elements-knowledge and antiunion animus-were lack-
ing in the General Counsel 's case, and for this reason the
General Counsel has failed to make a prima facie show-
ing sufficient to support the inference that Buendia's
union activity was a motivating factor in Respondent's
decision to suspend him from work . 33 The evidence
relied on by the General Counsel , when viewed in the
light most favorable to the General Counsel 's case, at
most only raises an inference that Respondent 's use of
Buendia's poor attendance record to justify his suspen-
sion was pretextual and not Respondent 's real reason. I
recognize that an employer 's pretextual reason for disci-
plining an employee may in certain circumstances sup-
'port an inference that the employer knew of the employ-
ee's union activities . The circumstances in this case, for
the reasons set forth previously , do not support such an
'inference . Rather, as the Board stated in Bayliner Marine
Corp., 215 NLRB 12:
At the outset, we note that our inquiry does not
involve an attempt to pinpoint the most reasonable
motivation for an employee 's discharge, for it is
well established that an employer may discharge an
employee for good reason, bad reason, or no reason
at all. Rather it is the General Counsel's burden to
establish a particular motivation on the part of the
employer, a discriminatory motivation. Because
company knowledge of union activity is a funda-
mental prerequisite in the establishment of that mo-
tivation, it is also the General Counsel 's burden to
prove by substantial evidence the existence of such
knowledge . Suspicion surrounding the discharge
will not replace the need for such proof.
In the instant case, not only does the record fail to estab-
lish that at the time of Buendia 's suspension Respondent
knew of his union activities , it also fails to establish union
animus on the part of Respondent or that Respondent
was even opposed to the Union representing its employ-
ees. It is for these reasons I find that the General Coun-
sel has failed to prove that a motivating factor in Re-
spondent 's decision to suspend Buendia was his union ac-
tivities.
b. Buendia 's discharge
In support of the contention that a prima facie show-
ing sufficient to support the inference that Buendia's
union activity was a motivating factor in Respondent's
decision to discharge him has been made, the General
Counsel relies on the following circumstances : (1) the
several considerations set forth previously in connection
with the General Counsel's argument that Buendia's
aS To find that Buendia's suspension violated the Act because Re-
spondent was motivated by his union activity, it was essential for the
General Counsel to prove that Respondent knew about his union activi-
ties at the time of his suspension and that Respondent had animus toward
such activities. Where knowledge or animus cannot be inferred, no viola-
tion can be found . See, e.g., Bonin Packing Co., 208 NLRB 280 (1974)
(animus); Bayliner Marine Corp., 215 NLRB 12 (1974) (knowledge).
union activities were a motivating factor in Respondent's
decision to suspend him; (2 ) on June 28, prior to his dis-
charge, as described in detail supra, Buendia openly en-
gaged in union activity in the company parking lot
when, for at least part of the time, members of supervi-
sion, including Plant Manager Morales, were present; (3)
as I have found supra, Morales' testimony about the cir-
cumstances surrounding his decision to punish Buendia
by discharging him was contradicted in significant re-
spects by Supervisor Gutierrez ' testimony; and ^(4) Mo-
rales failed to consult with Supervisor Gutierrez about
his decision to discharge Buendia . I am of the 'opinion
that, even assuming that after Buendia's suspension but
before his discharge Plant Manager Morales learned
Buendia was a union activist, the aforesaid circumstances
relied on by the General Counsel are more than conter-
balanced by other circumstances in the record as follows.
At the outset, I note that, as I have found supra, Buen-
dia's June 27 suspension did not violate the ' Act; Re-
spondent did not suspend him because of his union ac-
tivities. It is also significant that Buendia's suspension
was not the penalty imposed to punish him for his mis-
conduct. Rather, it is clear , that the suspension was only
temporary to give Plant Manager Morales time to con-
sider the severity of the punishment which should be im-
posed on Buendia for his misconduct . Therefore, the
question is not simply whether the record 'establishes that
a motivating factor in Morales' discharge decision was
Buendia's union activity; it is whether the record estab-
lishes that a motivating factor in Morales' decision to
impose the ultimate penalty of discharge , rather than a
lesser penalty, was based on Buendia's union activity. I
am of the opinion that the record as a whole fails to es-
tablish this . The record reveals that it was called to Mo-
rales' attention that Buendia had 'been absent or tardy
during a cluster of Fridays starting Friday, May 18,
through Friday, June 15; that prior to Morales' employ-
ment as plant manager Buendia had received two written
diciplinary warnings for his poor attendance; and that
the last of these warnings , which issued January 27, had
placed Buendia on notice that he would be discharged if
this misconduct continued . When viewed in the light of
the lack of evidence of union animus by Respondent, and
the evidence of Morales' reputation as a'very strict disci-
plinarian who discharged employees with good work
records for no apparent reason, these circumstances mili-
tate against a finding that Buendia 's union activity was a
motivating factor in Morales' decision to discharge him
rather than to impose a lesser penalty for his misconduct.
This conclusion is further supported by the lack of evi-
dence that Morales treated employees more 'leniently
than Buendia in circumstances similar to Buendia's. It is
for all of these reasons that I find the General Counsel
has failed to make a prima facie
.
showing , sufficient to
support the inference that Buendia's union activity was a
motivating factor in Respondent 's decision to discharge
him. I therefore shall recommend that the consolidated
complaint be dismissed insofar as its allegations encom-
pass the charge filed in Case 21 -CA-23290.
[Recommended Order for dismissal omitted , from pub-
lication.