Art Steel of California, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1981

256 N.L.R.B. 816 (N.L.R.B. 1981)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Art Steel of California, Inc. and Jose A. Calvente
and Salvador Barrera Ever. Cases 21-CA-
18143 and 21-CA-18757
June 22, 1981
DECISION AND ORDER
On January 23, 1981, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Art Steel of
California, Inc., Los Angeles, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I We find without merit Respondent's allegation of bias and prejudice
on the part of the Administrative Law Judge. Upon our full considera-
tion of the record and the Administrative Law Judge's Decision, we per-
ceive no evidence that the Administrative Law Judge made prejudicial
rulings or demonstrated bias against Respondent in his analysis or discus-
sion of the evidence. Furthermore, it is the Board's established policy not
to overrule administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: Based
on an unfair labor practice charge filed on August 30,
1979, by Jose A. Calvente in Case 21-CA-18143, and
based on an unfair labor practice charge filed on March
6, 1980, by Ever Salvador Barrera in Case 21-CA-18757,
the General Counsel issued on April 30, 1980, an amend-
ed order consolidating cases, amended consolidated com-
plaint, and amended notice of hearing alleging violations
of Section 8(a) (1), (3), and (4) of the Act by Art Steel of
California, Inc.
The hearing was held on August 28 and 29, 1980, in
Los Angeles, California. Both the counsel for the Gener-
al Counsel and the representative of the Respondent
made closing arguments on the record at the hearing. In
addition, the counsel for the General Counsel prepared
and filed a post-hearing brief by October 3, 1980.
256 NLRB No. 140
FINDINGS OF FACT
I. THE EMPLOYER AND THE UNION
The Board's jurisdiction is not in issue in this proceed-
ing. The Employer is engaged in the manufacture of
steel office furniture in Los Angeles, California. The Em-
ployer meets the Board's criteria for asserting its jurisdic-
tion under the direct outflow standard.
The status of Sheet Metal Workers' International As-
sociation, Local Union No. 170, AFL-CIO, as a labor
organization within the meaning of the Act is not in issue
in this proceeding. See, for example, the collective-bar-
gaining agreements between the Employer and the
Union, which were introduced into evidence as Re-
spondent's Exhibits 2(a) and 2(b).
II. THE WITNESSES
In alphabetical order by their last names, the following
nine persons appeared as witnesses at the hearing in this
proceeding:
Ever Salvador Barrera is one of the Charging Parties
and alleged discriminatees in this case.
Jose Cadiz was a general supervisor for the Respond-
ent on the second shift in August 1979. Cadiz held that
position for 2 years.
Jose Angel Calvente is one of the Charging Parties and
alleged discriminatees in this case. He worked for the
Employer for about 2 years. In August 1979, he worked
on the paint line on the night shift from 4 p.m. to 12:30
a.m.
Diana A. Carasco has been the payroll personnel super-
visor of the Respondent for the past 7 years.
Luis Castillo had been an employee of the Respondent
for about 8 years, and he had been a foreman of the Re-
spondent for over a year. He was laid off by the Re-
spondent on May 9, 1980.
Monserrate Feliciano has worked for the Respondent
for almost 30 years, and he had been the plant manager
of the Respondent for approximately 4-1/2 years at the
time of the hearing.
Jose Luis Perez was a packer on the Respondent's night
shift in August 1979. Perez is a member of the Union.
Richard J. Scott has been the business manager and the
financial secretary-treasurer of the Union since July 1,
1966.
Jose Pelayo Torres is an operator on the Respondent's
second shift. Torres is a member of the Union, and he
was the night shop steward in August 1979.
1ll. CREDIBII.ITY RESOLUTIONS
In resolving the credibility issues presented in this
case, consideration has been given to the demeanor of
the witnesses while they testified at the hearing and also
to any contradictions and inconsistencies in their version
and accounts of relevant matters. The inherent probabil-
ity and plausibility of their accounts have been weighed
in the context of surrounding events.
Both Cadiz and Feliciano were confronted on the wit-
ness stand with contradictions between their testimony at
the hearing and statements made in their own prehearing
ART STEEL OF CALIFORNIA, INC. 817
affidavits, which they had earlier given much closer in
time to the occurrence of the events.
Cadiz gave his affidavit to a Board agent on the night
of September 26, 1979. The affidavit was written in the
Spanish language. Portions were translated into English
and read into the record. A copy of his affidavit was in-
troduced into evidence as General Counsel's Exhibit 12.
Cadiz was given an opportunity at the hearing to offer
an explanation for the apparent contradictions between
his hearing testimony and his own prehearing affidavit.
In summary, he attributed the differences to errors in his
affidavit by the Board agent who took his statement, to
his inability to read his affidavit without having his eye-
glasses with him at work, and to his preoccupation with
his supervisory responsibilities that night when he gave
his affidavit.
Feliciano also attributed errors in his prehearing affida-
vit to the Board agent, who he said was asking questions
in English and writing "too fast." He also explained that
at the time he gave his affidavit a machine had broken
down at the plant and persons were coming into the
office to tell him what had happened. He acknowledged
that he had made some corrections in his affidavit at that
time, and that he had read and signed the statement
which was written in the English language. A copy of
his prehearing affidavit was introduced into evidence as
General Counsel's Exhibit 11. The affidavit was given on
September 20, 1979.
Considering the foregoing and the factors mentioned
at the outset of this section, I did not find the explana-
tions offered by Cadiz and Feliciano to be convincing.
Confidence in the accuracy and the reliability of their ac-
counts is lacking in these circumstances, and I find that I
cannot credit their accounts given at the hearing.
With regard to all of the other witnesses who testified
at the hearing, I have weighed, evaluated, and accepted
their testimony about the facts which were shown to be
within their own personal knowledge. In making the
findings of fact herein, I will set forth the accounts
which are credible, accurate, and reliable, based on the
criteria stated at the outset of this section.
A. The Events on Saturday, August 11, 1979
A copy of the current collective-bargaining agreement
between the Employer and the Union was introduced
into evidence as Respondent's Exhibit 2(a). The contract
became effective on August 11, 1979, although it was not
actually signed until November 7, 1979. A copy of the
prior contract between the Employer and the Union was
received as Respondent's Exhibit 2(b).
Joel H. Jimenez, the assistant business manager of the
Union, served as chairman of the Union's negotiating
committee during collective-bargaining negotiations with
the Employer for the current agreement. At one point,
Jimenez had presented the Union's proposals for a new
contract to the union members for "pre-ratification" by
them. When the union members voted "to pre-ratify the
agreement," the Union submitted those proposals to the
Employer as the Union's terms for a contract. A strike
vote was also taken by the union members. However,
the terms ultimately agreed on were not the same as the
proposals. As Barrera testified, ". . . the vote was taken
for a contract, but not the one that the union signed."
On Saturday, August 11, 1979, another union meeting
was held at 2 p.m. at the union office. About 150 em-
ployees of the Respondent attended that meeting. Includ-
ed among those employees of the Respondent were Cal-
vente, Barrera, and Perez. In addition, Jimenez was pres-
ent to speak to the union members about the new con-
tract terms. Also present at that meeting were Bill
Barton, who was the assistant plant manager of the Em-
ployer at that point in time, and another representative
of the Employer from New York.
Jimenez advised the employees of an agreement for a
30-cent-an-hour raise per year for each of the 3 years of
the new contract. At that point, Calvente spoke up at the
meeting. He testified:
I asked Mr. Jimenez, so that I could clarify the
reason why they were giving that miserable amount
of 30 cents. When I was talking then Mr. Jimenez
tried to cut me off, but other workers complained.
I tried to continue talking but Mr. Jimenez told
me that until he gave me the go ahead I could not
continue, but I asked for the go-ahead from my co-
workers and they told me yes, I could continue
talking.
That is when I continued talking and told Mr. Ji-
menez for what reason he, instead of helping us, the
workers, is more for the company.
That is when he tried to cut me off and said that
he could not answer any more. That is when he
said, when other coworkers tried to talk, that I con-
tinued talking trying to explain to him the reason as
to why he was discriminating against us, the em-
ployees, knowing that we were the ones that had
given him the office.
Barrera then spoke up at the meeting and voiced his
discontent with the new contract. He also invited the
employees to abandon the party which had been pre-
pared for them by Jimenez. Barrera testified: "I told him
to keep his beer; that he was used to buying the workers
in that way." Barrera stated at the hearing his belief that
about 99 percent of the workers did abandon the party.
B. The Events on Monday, August 13, 1979
On Monday, August 13, 1979, Calvente reported to
work as usual at 4 p.m. As Calvente went in the plant to
punch his timecard, he saw the Union's assistant business
manager, Jimenez, in the supervisor's office with Plant
Manager Feliciano, Assistant Plant Manager Barton, and
General Supervisor Cadiz. He observed that they were
talking, but he could not overhear what was being said.
Barrera also observed Jimenez in the supervisor's
office that day. He also saw the same persons as those
described by Calvente. He saw that they were talking,
but he was not able to overhear what was being said.
About 15 or 20 minutes after Jimenez came into the
plant, Jimenez spoke to Barrera who was working at the
time. Jimenez asked Barrera what his name was. Barrera
replied that his name was there where the timecards
were. At the hearing, Barrera explained that Jimenez had
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken Barrera's timecard after Barrera had punched in
that day. Nevertheless, Jimenez again asked Barrera
what his name was, so Barrera told him. Jimenez in-
formed Barrera that he was going to file a charge against
him.
Barrera did not receive any warning from the Employ-
er because he stopped working that day and talked with
Jimenez.
At the 5 p.m. break on August 13, 1979, Calvente
spoke to some employees, and he told them that he was
going to make up a list for the employees to sign in
order to remove Jimenez from union office. Calvente got
some employees to sign such a paper at the 5 p.m. break
and again during the 8:30 p.m. dinner period. Calvente
continued to solicit signatures during the 11 p.m. break
period. He estimated that he obtained 18 to 20 signatures
from employees that evening.
C. The Events on Tuesday, August 14, 1979
On Tuesday, August 14, 1979, Barrera telephoned Cal-
vente and asked Calvente to give him a ride to work be-
cause Barrera's car was not working. Calvente did so.
Barrera inadvertently left a small book in Calvente's car,
and Calvente took that book with him into the plant
when he reported for work at 4 p.m.
That same afternoon Plant Manager Feliciano called
Shop Steward Torres into his office. Present in the office
were Feliciano, his secretary, and Torres. An employee
named Rosa Semental then came into the office and
complained that Calvente had used a "strong word" to-
wards her. Feliciano took a statement from Semental and
then she left the office. (See G.C. Exh. 8, which is in
Spanish, and see the record where an English translation
was read into the record by an interpreter.)
About 4:15 or 4:20 p.m., Supervisor Cadiz approached
Calvente and told him that he had to go to the office.
Calvente went to the supervisor's office where Plant
Manager Feliciano, his secretary, Shop Steward Torres,
Supervisor Cadiz, and another supervisor, whose name
Calvente could not recall, were present.
Cadiz told Calvente that he had carried a book under-
neath his arm, and that Calvente "had that book with
[him] in order to get signatures to get Mr. Jimenez out of
his office." Cadiz described the book as being yellow and
of a certain size. Calvente acknowledged that he had car-
ried a small book under his arm and also his lunchbox.
He asked for permission to go look for the book.
Cadiz and Calvente then proceeded to Calvente's
work area where Calvente showed the book to Cadiz.
Calvente also opened his lunchbox and showed Cadiz
the contents. Cadiz stated that the book which was
shown to him was not "the book." Calvente told Cadiz
to look in the area. Cadiz and Calvente were in Cal-
vente's work area for about 4 or 5 minutes. They then
returned to the office.
At the office Calvente showed the book to Feliciano
to prove that it was not the book which Cadiz had previ-
ously described. According to Calvente, at that time
Cadiz ". . . told me that I had said some bad words and
I asked which. He said that he had heard that I had told
the lady, Dona Rosa, that I had told her a bad word."
Calvente asked what the bad word was, and Cadiz told
him. Feliciano told Calvente that he was fired. Calvente
asked why, and Feliciano told him "for saying bad
words." Calvente said that he wanted more proof, and
Feliciano again said that Calvente was fired.
At the hearing, Calvente specifically denied the accu-
sation made by Feliciano in his testimony that Calvente
had told him "to go to hell."
Calvente requested permission to go to look for his
things. He went back into the plant with Cadiz follow-
ing. Calvente picked up his lunchbox and, as he was
doing so, one of the employees asked Calvente what had
happened. Calvente replied that he had been fired. Then
Calvente returned to the office and asked Cadiz for a
paper in order to file a grievance. Cadiz told him to go
to the Union. Calvente left the office.
While Perez was packing a cabinet in the plant, he
spoke to Calvente and asked him what was happening.
Calvente replied that he had been fired. Perez asked why
that had happened. According to Perez, Calvente did not
respond ". . . because at about that time Mr. Jose Cadiz
called me and he told me my job was in danger if I con-
tinued talking to Jose Calvente because he had just been
fired." Perez told Cadiz that he did not care if his job
was in danger because Perez had another job. Cadiz then
took Perez to the office, and he told Perez to repeat
what Perez had said to him in front of Feliciano. Perez
did so, and then Perez was told to return to his job.
Other employees also asked Calvente what had hap-
pened, and he told them that he had been fired. A person
identified only by the name "Vicente" told Calvente that
he had to leave the plant and go outside. Calvente did
so, where he spoke to some people, and then he went
home.
During the 5 p.m. break period that day, the employ-
ees discussed having a work stoppage so that the Compa-
ny would return Calvente to his former job. Perez testi-
fied: ". . . then Jose Cadiz came over and told us that if
we did not return to the machines that we could be fired
and they could close the factory and if we want to argue
something about Calvente to go to the union and talk to
Jimenez."
Carrasco described at the hearing the "three-step pro-
cedure" for giving written warnings to employees of the
Respondent. Those warnings are given for violations of
the Company's rules, which are set forth on a large
poster at the plant under the heading, "Causes for Disci-
plinary Action." Because of the size of the poster, por-
tions of the rules were read into evidence. They were:
Rule 13, "inattention to duties, loafing, idling, wasting
time or sleeping during work hours"; rule 23, "going into
other departments or entering restricted areas"; rule 24,
"stopping work or making preparations to leave work
before signal sounds"; rule 25, "leaving the plant without
the supervisor's permission"; rule 30, "insubordination or
failure to carry out a work assignment." Unlike viola-
tions of the other rules, Carrasco said that insubordina-
tion was grounds for dismissal without prior warning.
Calvente acknowledged at the hearing that he had ear-
lier been given a warning for lifting some heavy things,
and on other occasions that things would be called to his
attention if he was not doing them correctly. Luis Cas-
ART STEEL OF CALIFORNIA, INC. 819
tillo was the supervisor of Calvente. Castillo was at
work on the afternoon that Calvente was fired, but he
was not involved in any way in the termination of Cal-
vente. At the hearing, Castillo testified, "One or two
weeks before he was fired I just told him that he was not
paying too much attention to his job; he would go out to
other departments also." Castillo said that he had asked
Cadiz to transfer Calvente to another department, but
that Calvente was not transferred. Castillo also recalled
two persons in the paint department who had com-
plained that Calvente left that department to go else-
where. He identified one of those employees only by her
first name, "Maria," and the other person as being a
young man whose name he could not recall.
D. The Events on Wednesday, August 15, 1979
On Wednesday, August 15, 1979, Barrera and seven or
eight other employees of the Respondent went to the
union office. They spoke with Assistant Business Man-
ager Jimenez about the termination of Calvente by the
Employer. However, Jimenez told the employees that he
did not want to talk to any of them.
Introduced into evidence as General Counsel's Exhibit
3 was a photocopy of one of several copies of a griev-
ance which Calvente filed with the Union regarding his
termination by the Respondent. The document is dated
August 15, 1979. The day shift union steward, Jorge As-
tasio, signed the grievance form before it was completely
filled out. Astasio informed Calvente that Calvente
would have to fill in the grievance language, or take the
form to a notary public to do so. Calvente then took the
form to a notary public, and he told the notary what
Calvente wanted to state in the grievance. The notary
then wrote in English on the form what Calvente had
told him. Calvente had photocopies made of the griev-
ance form. The notary notarized the original copy.
On the same day, Calvente took the grievance to the
union office and asked for Jimenez. However, Jimenez
was not in the office at the time, so Calvente gave the
original copy of the grievance form to one of the secre-
taries in the union office. (The fact that the original nota-
rized copy was left at the union office for Jimenez was
made clear in the record where Calvente stated, "Then I
gave the original to Mr. Jimenez.")
A few days later, Calvente telephoned Jimenez and
asked about his grievance. Jimenez replied that he had
not received any grievance. Next, Calvente filed an
unfair labor practice charge against the Union. (See G.C.
Exh. 4, which is dated August 30, 1979.)
IV. THE INTRAUNION CHARGES FILED AGAINST
CALVENTE
The Union's assistant business manager, Jimenez,
brought intraunion charges against Calvente. A copy of
a letter dated August 17, 1979, was introduced into evi-
dence as General Counsel's Exhibit 2. In pertinent part,
it stated:
I Joel H. Jimenez, Assistant Business Manager of
Sheet Metal Workers International Association
Local Union 170, hereby charge Jose Calvente
membership number 677047 with violating Article
Seventeen (17) Sections (c), I(f), (k), (m).
Sec. I(c)-Slandering any officer or member of this
Association or of any local union or council there-
of, verbally or by letter or in printed form, giving
public utterance or publicity to any charge, state-
ment or attack on the actions, policies, character,
or conduct of any officer or member of this Asso-
ciation or of any local union or council thereof,
except in the form of charges properly filed
against such officer or member as provided in this
Constitution.
Sec. I(f)-Attempting, inaugurating or encouraging
secession from this Association or any local union
or council thereof or advocating or encouraging
any dual labor movement.
Sec. (k)-Failure or refusal to abide by the rules of
order and parliamentary procedure in the meet-
ings of a local union or council or creating any
disturbance therein.
Sec. (m)-Engaging in any conduct which is detri-
mental to the best interests of this Association or
any subordinate unit thereof or which will bring
said unions into disrepute.
Statement of Facts.
Since on or about August 9, 1979, after the ratifi-
cation meeting of August 8, 1979 of all the employ-
ees of Art Steel of California in which 100% of the
employees present voted to accept and preratified
the proposal of the Union's Negotiations Commit-
tee, Brothers Edgar H. Guevara, Ever S. Barrera,
Jose Calvente formed a committee by the name of
"Committee Anti Racista" and distributed handbills
to the members within the plant.
On such handbill they were slandering the Assist-
ant Business Manager and the members of the Ne-
gotiating Committee and encouraging a dual labor
movement and calling a meeting on the same date
that the Assistant Business Manager and the Negoti-
ation Committee called a meeting.
On August 11, 1979, at the meeting held at the
Local Union Hall, they disrupted the meeting and
insulted the Assistant Business Manager who was
presiding at the meeting, slandering him and the
Negotiating Committee and creating disturbances
and engaging in conduct that is not in the best inter-
ests of the Association.
I hereby request that a trial be held in accord-
ance with provisions of the Constitution of Ritual of
the Sheet Metal Workers International Association.
Intraunion charges were also filed against Barrera for
alleged violations of the Union's constitution and for his
conduct at the union meeting on August 11, 1979.
A. Events on Wednesday, September 26, 1979
About 10:50 p.m. on Wednesday, September 26, 1979,
at the plant Barrera observed a woman who was not an
employee of the Company. Barrera approached her and
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked "if she belonged to the Labor Commission." Bar-
rera explained that his reason for doing so was that he
had been called at his home two or three times, but he
had not been able to contact anyone. The woman replied
to Barrera affirmatively, and she told him that she was
the person. At that moment, Cadiz came over to them
and Barrera left. Barrera said that the conversation lasted
from 1-1/2 to 2 minutes at the most.
About 11:15 p.m. that same night, Cadiz gave a writ-
ten warning to Barrera. Barrera testified:
He had a warning prepared for me already. He
said that it was definitely prohibited to talk to a
government person and I told him that I did not
know that she was from the government, but it was
my intention to find out if she belonged to the
Labor Commission because I needed to get in touch
with her.
He insisted that I knew that it was a government
[person] and gave me the warning.
A copy of the written warning was introduced into
evidence as General Counsel's Exhibit 5. The document
is entitled "Employee Warning Notice." It indicates that
it is the first notice and that it was issued on September
26, 1979. The "nature of violation" is described as being
"absence from Dept." The "explanation of violation" is
handwritten as follows: "Leaving his department and
going into another department without permission."
Barrera stated, however, at the hearing that he was
taking inventory on that particular night, and that he
was not assigned to any specific department on that oc-
casion. In taking the inventory, Barrera had to go from
department to department that evening.
B. The Grievance Filed by Barrera
On October 2, 1979, Barrera filed a written grievance
with the Union regarding the written warning which Su-
pervisor Cadiz had given to him on the night of Septem-
ber 26, 1979. A copy of Barrera's grievance was intro-
duced into evidence as General Counsel's Exhibit 6. The
"nature of grievance" portion is written in Spanish. An
interpreter at the hearing translated that portion of the
grievance into English.
Subsequently, Jimenez informed Barrera that "they
were going to fight the grievance after Bill Barton came
back from his vacation and they were going to call me
for a meeting and that they never did." That was the last
thing that Barrera had heard about his grievance until
the time of the hearing in this proceeding. Barrera testi-
fied during his cross-examination:
Q. Were you not aware that in November of
1979 the union had the warning slip removed from
your record?
A. I never knew; they never did notify that; I
asked Jose Torres and he said I know nothing about
that.
Q. Is this the first time that you have heard that?
A. What?
Q. That in November of 1979 the union had the
warning slip referred to removed from your record?
A. That is the first time I have heard it.
A meeting was held between the Company and the
Union on November 11, 1979, at which time the griev-
ance filed by Barrera was discussed. After discussion of
the events which preceded the issuance of the warning
to Barrera, the Company and the Union reached an
agreement to withdraw the warning and to remove the
warning notice from Barrera's personnel record. The
meeting took place at the Hyatt House in the City of
Commerce, California. Present for the Employer were
Joseph Kay and Bill Barton. Present for the Union were
Business Manager Scott, Jimenez, Jorge Astasio, and five
unit employees on the Union's committee. The Union
took the position that the warning was not justified be-
cause the conversation was very brief; Barrera was either
on his way to the restroom or on his way from the res-
troom; the conversation was momentary and Barrera im-
mediately returned to work without any instruction from
a supervisor to do so. In the Union's view, according to
Scott, "It wasn't the concern of the union who he was
talking to; whether he or she was with the Labor Board
or anything else. It was the circumstances of the events
that the warning notice was given that the union felt was
unjustified. It had nothing to do with who he was talking
to."
C. Conclusions
Without repeating the facts which have already been
set forth in sections III, A and B, herein, I conclude that
the evidence shows that Calvente was engaged in union
activities just prior to his termination by the Respondent.
The fact that Calvente's actions were in the nature of a
dissenting viewpoint, or negative in character, does not
detract from the fact that his actions fall within the
scope of union activities. He spoke out in opposition to
the contract terms, which had been agreed on between
the Employer and the Union. In particular, Calvente fo-
cused on the amount of the wage increase which he and
the other unit employees would be earning for the next 3
years under the terms of the collective-bargaining agree-
ment. It will be remembered that two representatives of
the Respondent were present at the union meeting on
August 11, 1979, at the union office. Thus, I conclude
that the Respondent was aware of Calvente's outspoken
opposition at that meeting to the contract terms which
the Respondent had agreed on with the Union.
Next, Calvente initiated a petition to remove from
office the Union's Chairman of the negotiating commit-
tee. Calvente did so at the Employer's facility, and he
obtained between 18 and 20 signatures on his petition in
one evening, on August 13, 1979. While Calvente's activ-
ities on that date took place at the Employer's plant, the
evidence does not directly establish that the Employer's
supervisors or management observed him doing so.
However, the statements made by Cadiz to Calvente the
next day on August 14, 1979, warrant an inference that
Cadiz had knowledge from some source that Calvente
was seeking to remove Jimenez from office. Note the
events which took place in the supervisor's office and at
Calvente's work station as described in section III,C,
ART STEEL OF CALIFORNIA, INC. 821
herein. At the outset of that confrontation in the supervi-
sor's office, Cadiz accused Calvente of bringing a book
into the plant and of having "that book with [him] in
order to get signatures to get Mr. Jimenez out of his
office." Thus, that statement by Cadiz creates the im-
pression that Cadiz was keeping Calvente's actions under
surveillance, and his search of Calvente's work area for
such a book reveals that the matter was one of concern
to the Employer.
When the search failed to find a book seeking the re-
moval of Jimenez from office, the conversation in the su-
pervisor's office then turned to an accusation that Cal-
vente had used some "bad words" towards a female em-
ployee. It will be remembered that the reason told to
Calvente at the time of his termination was that he was
being fired "for saying bad words." Nevertheless, Cal-
vente was not confronted in person by Semental at that
time, nor, more significantly, was Calvente confronted at
the hearing by Semental since she did not testify. I con-
clude that this accusation is pretextual. Note in section
III,C, that Calvente denied the insubordinate remark at-
tributed to him by Feliciano at the hearing. Calvente's
past warnings and his performance were not advanced at
the time of his termination as the basis for the Respond-
ent's decision to discharge Calvente.
After considering the foregoing, I conclude that the
General Counsel has established a prima facie case of dis-
crimination with regard to the termination of Calvente;
and that the Respondent has not demonstrated that the
discharge of Calvente would have taken place even in
the absence of Calvente's union activities. Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083 (1980). The
General Counsel has presented evidence of union activi-
ties by Calvente just prior to his termination from 2
years of employment, the Employer's knowledge of his
activities, and motivation on the part of the Employer to
discriminate against Calvente because of his union activi-
ties. That the Respondent would have a vested interest
in maintaining the validity of its new collective-bargain-
ing agreement and the stability of its relationship with
the Union is apparent. The Respondent's evidence does
not rebut the General Counsel's prima facie case. Ac-
cordingly, I conclude that a preponderance of the evi-
dence establishes that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l) and
(3) of the Act by terminating Calvente and that the Re-
spondent has independently violated Section 8(a)(1) of
the Act by Cadiz' statements and conduct on August 14,
1979, as alleged in the General Counsel's complaint.
Based on the facts as set forth in section III, D, herein,
I conclude that Calvente did attempt to file a grievance
with the Union regarding his termination by the Em-
ployer. Regardless of whether Calvente actually filed a
grievance or even failed to file a grievance concerning
his termination, I conclude that a failure to pursue the
grievance procedure does not preclude the processing of
the General Counsel's complaint before the Board since
the complaint alleges that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act in terminating Calvente.
See the Board's Decision in Roy Robinson, Inc., d/b/a
Roy Robinson Chevrolet, 228 NLRB 828 (1977), and Gen-
eral American Transportation Corporation, 228 NLRB 808
(1977).
Turning now to the allegations of the General Coun-
sel's complaint which pertain to Barrera, I conclude that
the evidence shows that the Respondent issued a written
warning notice to Barrera on September 26, 1979, be-
cause Barrera spoke to a Board agent. As set forth in
section IV,A, herein, Cadiz made it clear to Barrera at
the time that the warning notice was issued "that it was
definitely prohibited to talk to a government person." As
described in section III herein, Cadiz had given his own
affidavit to the female Board agent that same night at the
plant with regard to the unfair labor practice charge
based on the earlier termination of Calvente. Thus, Cadiz
knew who the Board agent was at that time and the pur-
pose of her investigation at the Employer's facility that
evening.
While the warning notice accused Barrera of leaving
his department that evening and without permission
going into another department, Barrera was involved in
taking an inventory on that particular night and, there-
fore, he was not assigned to a particular department but,
instead, he had to go from department to department.
That evidence underscores the pretextual nature of the
reason given on the warning notice. Instead, I conclude
that the warning was issued to Barrera because he spoke
to a Board agent who was investigating unfair labor
practice charges against the Employer.
In N.L.R.B. v. Scrivener, d/b/a AA Electric Co., 405
U.S. 117, 121-123 (1972), the Supreme Court held:
1. Construing §8(a)(4) to protect the employee
during the investigative stages, as well as in connec-
tion with the filing of a formal charge or the giving
of formal testimony, comports with the objective of
that section. Mr. Justice Black, in no uncertain
terms, spelled out the congressional purpose:
"Congress has made it clear that it wishes all per-
sons with information about such practices to be
completely free from coercion against reporting
them to the Board. This is shown by its adoption
of §8(a)(4) which makes it an unfair labor prac-
tice for an employer to discriminate against an
employee because he has filed charges. And it
has been held that it is unlawful for an employer
to seek to restrain an employee in the exercise of
his right to file charges" (citations omitted). Nash
v. Florida Industrial Comm'n, 389 U.S. 235, 238
(1967).
This complete freedom is necessary, it has been
said, "to prevent the Board's channels of informa-
tion from being dried up by employer intimidation
of prospective complainants and witnesses." John
Hancock Mut. Life Ins. Co. v. NLRB, 89 U.S. App.
D.C. 261, 263, 191 F.2d 483, 485 (1951). It is also
consistent with the fact that the Board does not ini-
tiate its own proceedings; implementation is depend-
ent "upon the initiative of individual persons." Nash
v. Florida Industrial Comm'n, supra, 389 U.S., at
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
238; NLRB v. Industrial Union of Marine & Ship-
building Workers, 391 U.S. 418, 424 (1968).
2. The Act's reference in §8(a)(4) to an employee
who "has filed charges or given testimony," could
be read strictly and confined in its reach to formal
charges and formal testimony. It can also be read
more broadly. On textual analysis alone, the pres-
ence of the preceding words "to discharge or other-
wise discriminate" reveals, we think, particularly by
the word "otherwise," an intent on the part of Con-
gress to afford broad rather than narrow protection
to the employee. This would be consistent with
§8(a)(4)'s purpose and objective hereinabove de-
scribed.
After considering the foregoing, I conclude that the
Respondent independently violated Section 8(a)(l) of the
Act by the statements made by Cadiz to Barrera on Sep-
tember 26, 1979, as alleged in the General Counsel's
complaint, and that the Respondent also violated Section
8(a)(l) and (4) of the Act by issuing the warning notice
to Barrera.
The Employer and the Union reached an agreement
on November 11, 1979, to remove the warning notice
from Barrera's records. That agreement was not revealed
to Barrera until he testified on August 28, 1980, at the
hearing in this proceeding. It would usually be appropri-
ate to require that a respondent expunge from its records
a warning notice which was found to have been issued in
violation of the Act. See, for example, American and
Indo-China Development a/k/a Project Aid, 240 NLRB
743 (1979). I will do that here to ensure that such re-
cords are expunged, as well as to provide for the Re-
spondent's action to be communicated to its employees in
an appropriate notice to them.
In prehearing pleadings, a question arose concerning
the applicability of the Board's deferral policy as set
forth in Spielberg Manufacturing Company, 112 NLRB
1080 (1955). It is unnecessary to discuss the several rea-
sons why I conclude that Spielberg is not applicable here
because the Board has stated in Filmation Associates, Inc.,
227 NLRB 1721 (1977), "[a]s we conclude that issues in-
volving Section 8(a)(4) of the Act are solely within the
Board's province to decide we will not apply the Spiel-
berg doctrine to such issues."
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
the following acts and conduct:
(a) Creating the impression that Jose A. Calvente's
union activities were being kept under surveillance by
the Respondent; searching his work area and questioning
him about his union activities on August 14, 1979.
(b) Telling Ever Salvador Barrera not to talk to an
agent of the National Labor Relations Board and telling
him that a written warning was being issued to him for
talking with a Board agent on September 26, 1979.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(l) and (3) of the
Act by terminating Jose A. Calvente on August 14, 1979,
because of his union activities.
5. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (4) of the
Act by issuing a written warning to Ever Salvador Bar-
rera on September 26, 1979, because he spoke with an
agent of the National Labor Relations Board who was
investigating an unfair labor practice charge which had
been filed against the Respondent.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(l), (3), and (4) of the Act, I shall recommend to the
Board that the Respondent be ordered to cease and
desist from engaging in those unfair labor practices.
I shall also recommend to the Board that the Respond-
ent take certain affirmative action in order to effectuate
the policies of the Act. Such affirmative action will in-
clude an offer of immediate reinstatement to Jose A. Cal-
vente or, if his former job no longer exists, to a substan-
tially equivalent job, without the loss of his seniority or
other rights and privileges. I shall also recommend to the
Board that the Respondent make him whole for his
losses which have resulted from his termination. Back-
pay, together with interest on such backpay amounts,
will be computed in accordance with the Board's Deci-
sions in F. W. Woolworth Company, 90 NLRB 289 (1950);
Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and
Florida Steel Corporation, 231 NLRB 651 (1977).
As indicated previously in section IV,C, herein, I shall
also recommend that any reference in the Respondent's
records to the warning issued to Ever Salvador Barrera
on September 26, 1979, be expunged from the Respond-
ent's records and the warning rescinded.
Because the record reveals that a substantial number of
the Respondent's employees speak Spanish, I shall also
recommend to the Board that a translation of the official
English language notice into the Spanish language be si-
multaneously posted alongside the notice. Hasa Chemi-
cal, Inc., 235 NLRB 903 (1978).
Counsel for the General Counsel seeks to have a broad
remedial order imposed on the Respondent. (See G.C.
br. fn. 18.) In Hickmott Foods, Inc., 242 NLRB 1357
(1979), the Board held that such a broad order "is war-
ranted only when a respondent is shown to have a pro-
clivity to violate the Act, or has engaged in such egre-
gious or widespread misconduct as to demonstrate a gen-
eral disregard for the employees' fundamental statutory
rights." The record does not reveal that there have been
any prior unfair labor practices committed by the Re-
spondent. While the unfair labor practice violations in
this case are serious, I conclude that the Board's standard
stated in Hickmott Foods has not been met by the evi-
ART STEEL OF CALIFORNIA, INC 823
dence presented here. Accordingly, I shall deny the
General Counsel's request.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '
The Respondent, Art Steel of California, Inc., Los An-
geles, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Creating the impression that an employee's union
activities are being kept under surveillance by the Re-
spondent; searching an employee's work area and ques-
tioning an employee about his union activities.
(b) Telling an employee not to talk to an agent of the
National Labor Relations Board and telling an employee
that a written warning is being issued because an em-
ployee talked with a Board agent.
(c) Terminating an employee because of his union ac-
tivities.
(d) Issuing a written warning to an employee because
he spoke with an agent of the National Labor Relations
Board who was investigating an unfair labor practice
charge which had been filed against the Respondent.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by the Act.
2. Take the following affirmative action which is
deemed to be necessary in order to effectuate the policies
of the Act:
(a) Offer Jose A. Calvente immediate and full rein-
statement to his former position of employment or, if
that job no longer exists, to a substantially equivalent po-
sition of employment, without the loss of his seniority or
any other rights and privileges.
(b) Make whole Jose A. Calvente for his losses, with
appropriate interest thereon, which have resulted from
his termination by the Respondent. Such backpay and in-
terest are to be computed as set forth in "The Remedy"
section of this Decision.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Expunge any reference in the Respondent's records
to the written warning issued to Ever Salvador Barrera
on September 26, 1979, and rescind that warning.
(e) Post at its Los Angeles, California, facility copies
of the attached notice marked "Appendix." 2 Copies of
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
said notice, on forms provided by the Regional Director
for Region 21, after being duly signed by Respondent
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I.abor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WILL NOT create the impression that an em-
ployee's union activities are being kept under sur-
veillance by us, search an employee's work area,
and question an employee about his union activities.
WE WILL NOT issue a written warning to an em-
ployee because he spoke with an agent of the Na-
tional Labor Relations Board who was investigating
an unfair labor practice charge against our compa-
ny.
WE WI.l NOT tell an employee not to talk to an
agent of the National Labor Relations Board, nor
tell an employee that a written warning is being
issued because the employee talked with a Board
agent.
WE WILL NOT terminate an employee because of
his union activities.
WE WIL. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by the
National Labor Relations Act.
WE WILL offer Jose A. Calvente immediate and
full reinstatement to his former position of employ-
ment or, if that job no longer exists, to a substantial-
ly equivalent position of employment without the
loss of his seniority or any other rights and privi-
leges.
WE WILL make whole Jose A. Calvente for his
losses, with appropriate interest thereon, which
have resulted from his termination.
WE WlI. expunge from our records any refer-
ence to the written warning issued to Ever Salva-
dor Barrera on September 26, 1979, and rescind that
warning.
ART STEEL OF CALIFORNIA, INC.