Bellevue Memorial Park

National Labor Relations Board - Board Decisions

Oct 30, 1992

309 N.L.R.B. 401 (N.L.R.B. 1992)

401
309 NLRB No. 59
BELLEVUE MEMORIAL PARK
1 On June 12, 1992, Administrative Law Judge James M. Kennedy
issued the attached decision. The General Counsel filed exceptions
and a supporting brief. The Respondent filed a brief in support of
the judge’s decision and an answering brief to the General Counsel’s
exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
1 All dates are 1991 unless otherwise noted.
Ontario Cemetery Association d/b/a Bellevue Me-
morial Park and Southern California District
Council of Laborers and its affiliated Local
783, AFL–CIO. Case 31–CA–18952
October 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case1 presents issues of whether the Respond-
ent unilaterally modified its existing policy for the sale
of memorial flower easels in violation of Section
8(a)(5) of the Act, and discharged an employee pursu-
ant to the disputed policy in violation of Section
8(a)(5), (3), and (1) of the Act. The judge found that
the General Counsel failed to prove the alleged unfair
labor practices. He therefore recommended dismissal
of the entire complaint.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Ann L. Weinman, for the General Counsel.
Russell J. Thomas and H. Alan Arfken, of Santa Ana, Cali-
fornia, for the Respondent.
Ray Van der Nat, of Los Angeles, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Los Angeles, California, on Decem-
ber 12 and 13, 1991,1 on a complaint issued by the Acting
Regional Director for Region 31 of the National Labor Rela-
tions Board on August 23. The complaint is based on a
charge filed by Southern California District Council of La-
borers and its affiliated Local 783, AFL–CIO (the Union) on
July 12. It alleges that Ontario Cemetery Association d/b/a
Bellevue Memorial Park (Respondent) has committed certain
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act).
Issues
The principal issues to be decided are whether Respondent
unlawfully modified a disciplinary rule which resulted in the
discharge of its employee Tom Trakes. Alternatively, the
complaint asserts that Respondent discharged Trakes because
of his union activities. Respondent argues that the so-called
change in the rule was no change at all, or if it was, it was
not a substantial and material change. It also argues that the
Union knew of the change and never requested bargaining
over it and thereby waived its right to bargain over it. Fi-
nally, Respondent argues that the General Counsel has failed
to prove that it discharged Trakes because of his union ac-
tivities; instead the evidence shows that it discharged Trakes
for theft. The General Counsel also contends Respondent
breached the bargaining obligation by failing to abide by an
agreement between the Union’s representative and a first-line
supervisor not to discipline Trakes. Respondent contends no
such agreement was made or, if it was, the first-line super-
visor had no authority to strike such an agreement and the
union official knew it; therefore, the agreement, such as it
was, could not bind Respondent.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties have
filed briefs which have been carefully considered. Based on
the entire record of the case, as well as my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits it is a California corporation which op-
erates a cemetery in Ontario, California; it further admits its
gross sales annually exceed $500,000 and it annually pur-
chases or receives goods and services valued in excess of
$50,000 directly from suppliers located outside California.
Accordingly it also admits, and I find it to be, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Trakes’ discharge, on June 12, occurred during the nego-
tiation of the first contract the Union was seeking to obtain
from Respondent. He had been hired in 1978 as a
groundsman. At the time of his discharge, and for a period
not shown in the record, he had served as Respondent’s
leadman.
Respondent’s manager was Ernest A. ‘‘Bud’’ Christian.
Christian had been hired in September 1989. He had overall
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
responsibility for the operation of the cemetery. A small of-
fice staff reported to him as well as the grounds employees.
At the time he decided to discharge Trakes, there were six
groundsmen, including Trakes and Foreman Bob Votruba. In
January, Respondent had hired Harold R. ‘‘Butch’’ Moulton
to be the grounds superintendent. Before that time Votruba
had been regarded as the supervisor in the field. However,
during the course of the representation process before the
National Labor Relations Board, its Acting Regional Director
had concluded that Votruba was not a statutory supervisor.
Respondent wished to have a person with the authority which
the statute recognized. To do that, it created the superintend-
ent’s position. As a result, Votruba, although nominally a
foreman, was placed in the bargaining unit.
Respondent seems to have taken the organizing in stride.
The record does not show when it actually began, but the
Regional Director of the Board certified the Union as the ex-
clusive collective-bargaining representative of a unit of
groundsmen in December 1990 in Case 31–RC–18602. Dur-
ing the period of organizing and subsequently, Respondent
was represented by Attorney Russell J. Thomas. Thomas
handled both the representation case and the negotiation of
the contract for it after the Union unanimously won the elec-
tion. The union official in charge of organizing and the re-
sultant negotiations was Enrique ‘‘Rick’’ Guillen. He testi-
fied that until Respondent fired Trakes, he regarded Re-
spondent as bargaining in good faith. Indeed, both he and
Thomas testified a contract was very close. Aside from
Trakes’ situation, the record is devoid of evidence dem-
onstrating that Respondent harbors animus against the Union.
Trakes’ union activities are limited. He asserted it was he
who had first gone to the Union to seek representation, ap-
parently sometime in the fall of 1990. He served as the
Union’s observer at the representation election and was
quoted in the local newspaper announcing that Respondent’s
employees were the first cemetery employees in Southern
California to choose union representation. However, in the 6
or 7 months thereafter, his union activities ceased. The em-
ployee representative who assisted Guillen at negotiations
was Phil Lindgren, another groundsman. There is no sugges-
tion that Respondent believed Trakes warranted special atten-
tion because of his union sentiments. He also says, after
Moulton was hired, that he made several safety complaints
to him. Trakes’ concerns are unspecified and it appears that
the safety issue was taken up by the Union as part of collec-
tive bargaining with some success, at least according to
Thomas. There is no evidence that Trakes’ safety interests
caused Respondent to focus on him.
The complaint requires the scrutiny of two of Respond-
ent’s preexisting policies. The first is the question of how
flower stand/easel sales are to be handled; the second is em-
ployee discipline as it relates to theft or conversion of Re-
spondent’s property.
It is undisputed that prior to the Union’s appearance Re-
spondent had in place a system, somewhat informal, of pro-
gressive discipline for most offenses. There were two behav-
ior breaches which were considered to be much more serious
and which brought immediate discharge. These were drug
sales on the property and theft of company property. When
negotiations began in March, Guillen wanted Respondent to
advise it of what the disciplinary policies were, and Thomas
described them. The parties agreed in March to leave the
policies in place even though they had not all been reduced
to writing. Indeed, it was not until about a month after
Trakes’ discharge that the rules were put in writing as an ap-
pendix to the blossoming collective-bargaining contract. The
appendix is dated July 19, and the Union agreed that it could
be put into effect as written at about that time. It provided,
among other things, that theft or conversion of company
property was grounds for immediate discharge. Earlier, on
April 24, as more fully described, infra, Moulton, at Chris-
tian’s direction, had placed a handwritten notice in the lunch-
room dealing with the removal of flower easels from the
property and threatening to impose discharge on any em-
ployee who did so.
The flower stand policy is somewhat unique. The easels
are those which remain after graveside services. They are
part of flower arrangements left behind by mourners. Usually
they have been professionally prepared by a florist. The com-
pany policy was to permit them to remain at the burial or
entombment site for 3–5 days and then remove them to a
service area. Often they were reusable when the spent flow-
ers were stripped off. If so, florists would buy them back.
Until 1989 the Company charged the florists only 35 cents
per stand. At some point, prior to Christian’s arrival, his
predecessor had remedied a problem with the small amounts
of cash which had been generated from the easel sales and
which had been used to purchase coffee, soft drinks, snacks,
pizzas, employee gifts, and the like. Occasionally, it had
been used to provide small bonuses to the crew. There had
been no control on that cash and it had been kept in a box
in the mausoleum utility area. At some point, apparently be-
cause of pilferage, the previous manager ordered the cash de-
posited in a separate checking account. Votruba and the of-
fice manager were the only persons who had check signing
authority on that account. In addition, the previous manager
required the groundsman responsible for any sale to see to
it that a receipt was generated, one copy for the florist and
a second copy to be given to the office manager, together
with the payment, so she could deposit it.
The money in the account continued to be used as before.
Basically it became a kind of slush fund for the benefit of
the employees. When Christian became the cemetery man-
ager in late 1989, he continued to insist that easel sales be
receipted and that the moneys be deposited to that account.
However, he did permit the easel sale value to be increased
from 35 cents each to $1. Curiously, however, in 1990, there
were only two deposits totaling $186. This amount was sub-
stantially less than the amounts deposited in previous years
at the lower price.
Even so, Respondent continued to provide its groundsmen
with the same benefits which the fund had provided. Rather
quickly after he was hired Christian began to forget about the
fund as a source of money for coffee, pizza, etc., and pur-
chased those items from the cemetery general fund. He testi-
fied that since the account did not appear in the Company’s
ledgers, he gave it little thought. He said he tried to provide
both the office staff and the groundsmen with a roughly
equal amount of food and drink and the best way to do that
was to purchase it directly and distribute it to both groups
at the same time. It was easiest to do that with general fund
money since the checking account was not intended for the
office staff. As a result, he neglected the account as a source
of payment for the outside workmen.
403BELLEVUE MEMORIAL PARK
2 Mike Hodges goes much further than Trakes. He contends
Moulton told the assembled employees ‘‘[T]he easels belong to you
guys until Friday.’’ He either would not or could not distinguish be-
tween the easels themselves and the easel fund. I cannot credit
Hodges on the point. He is the only one who so describes Moulton’s
announcement.
B. Trakes’ Discharge
As previously noted, Moulton had become grounds super-
intendent on January 28. He took on tasks which had pre-
viously been performed by Votruba. He says it took him a
month or two to begin to understand the way the cemetery
operated. I think it is fair to say that flower easels and the
way they were being disposed of was not a principal concern
to him in the beginning. Eventually he learned about the
fund from the men and became aware that the stands were
the source of money for that account. They were normally
stored in a service area and from time time they would be
gone. No witness was able to testify definitively regarding
how may easels per week or month were actually left behind
to be sold, but the number is substantial over a year’s time.
It depends in large part on the number of burial services and
the amount the mourners choose to spend on flower arrange-
ments. Even so, periodically as many 100 stands would be
stored and made ready for sale to the florists.
It is not clear which of the groundsmen was responsible
for arranging the sales. It seems that it was usually Votruba,
principally because he was the foreman and had access to the
checking account. Others may also have done so, particularly
Trakes, because he was so senior and, as leadman, would act
when Votruba was not present. Over the years, many
groundsmen have participated in the sale of flower stands to
florists.
In late April, Moulton noticed that a large number of ea-
sels awaiting sale had disappeared. When he went to exam-
ine the checkbook he found that no deposit had been made
and the receipt book showed no receipt had been generated.
He advised Christian of what he had learned and Christian
told him to warn the men against theft of easels and to post
a notice reminding them that theft would result in their dis-
charge. On April 24, Moulton met with the grounds staff
who were on duty. He told them he was aware that flower
stands were disappearing and that no receipts were being
written or deposits being made. He says the men replied they
would discuss it among themselves. On the same day, he
also posted a notice on the lunchroom bulletin board. The
notice, dated April 24 and in his handwriting, says:
From this Date, Anyone caught Taking Easels From
this property or in their Vehicles will be terminated Im-
mediately. No second Chance!
/s/ H.R. Moulton
This includes Environmental Care or any other Con-
tractor on this property.
The lunchroom was also the location where Thomas,
Christian, and Moulton were negotiating with Guillen. On
April 30, during a negotiation session, Guillen saw the notice
and commented that he wished the Company had spoken
with Thomas before putting it up because he thought the lan-
guage was poorly worded, but he said nothing further about
it. Guillen agreed that the document simply amounted to a
directive to employees that they not steal. He also believes
he asked Thomas that all policies be brought to the bargain-
ing table before being given out to the employees. He recalls
Thomas saying he would.
Guillen did not ask that the notice be removed nor did he
suggest that the policy it described was anything different
from what he understood the rule against theft to be. Further-
more, it is undisputed that the notice remained on the lunch-
room board at least up through the time Trakes was dis-
charged in June. During that time Respondent and the Union
conducted several more bargaining sessions in that very
room. Guillen did not seek to discuss either the notice or the
disciplinary rules during that period of time, concentrating
instead on other topics. As noted, however, after Trakes was
fired, the rules once again became a topic of negotiations, in
July finally resulting in a formal rule providing that theft was
grounds for immediate discharge.
In early June, according to Moulton and Christian, they
had a discussion about the easel fund. Christian decided it
was superfluous and its rules were not being honored any-
way, in the sense that deposits were not being made to the
account and receipts were not being written to florists. He
believed the fund was unnecessary because he was now pro-
viding all the food and snack items which were needed di-
rectly from the cemetery accounts. Accordingly, he decided
to dissolve the fund and distribute the money to the grounds
crew.
Before work on Wednesday, June 5, Moulton told the men
of Christian’s decision. He also said that the account would
be distributed to all six groundsmen on Friday, June 7, after
the account had been settled at the bank. That treatment was
consistent with the ‘‘small bonuses’’ which had sometimes
been paid in the past, well before Christian became manager.
He also announced that in the future, all easels were to be
sold only through the front office and that the grounds crew
was no longer to be involved in those sales.
Trakes testified about what happened after Moulton left
that morning:
After he left, we all kicked around the issue about
[sic] wondering how they could do it, and we all, more
or less the whole grounds crew said, ‘‘Well, we will
negotiate this when we get to negotiations.’’
But since the easel money was going to be ours as
until Friday, we all—got together and said, ‘‘Well, why
don’t we get the remaining easels that we did have in
[and] around the rooms and from the mausoleum and
sell them and get the money for them that, you know,
so that we would have the extra money when they dis-
tributed all the money out Friday.’’2
Although Trakes declines responsibility for initiating what
happened next, all the flower stands which the employees
could find were gathered up. He says the four employees in-
volved were himself, Lindgren, Votruba, and Hodges. The
other two groundsmen, Art Motor and John Lamb, were not
involved. Those 4 stripped 60 easels of flowers, wire, and
styrofoam and stacked them 10 deep outside the breakroom.
This location was far more visible to other staff members
than their usual presale location and Moulton did notice them
there.
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Guillen had been informed by the employees that the easel fund
was being discontinued. Whether he knew more than that is unclear.
It is not clear how long all this took, but the creditable
evidence shows that at some point, probably Thursday,
Hodges, at Trakes’ request found a florist to buy the stands.
Trakes sold them later that day. He collected $60 cash from
the florist but did not direct the florist to the office for a re-
ceipt. Nor did he take the money to the office manager to
be placed with the easel account checkbook. Instead, he dis-
tributed $10 to each coworker, although two, Motor and
Lamb were not present that day and Hodges had gone home.
The others agreed to take their share of the money to them.
The record does not show what Trakes did after that, but it
seems he left for the day.
Also not present that day was Christian. Moulton, how-
ever, noticed the stacked easels were missing and somewhere
between 4 and 4:30 p.m. asked Votruba what he knew about
it. Votruba, falsely, denied any knowledge of the situation,
even though he had his share in his pocket. Moulton, upset,
then asked Lindgren what he knew. Lindgren told him
Trakes had sold the easels and had distributed the money to
the men. Votruba was standing nearby but said nothing. Ac-
cording to Lindgren, Moulton, angry, said, ‘‘That’s it. That’s
it. He’s had it.’’
As Moulton blustered with the two employees about
Trakes, the disappearance of the flower stands and the dis-
tribution of the money, the Union’s representative Guillen
appeared on the scene. It is not clear why he arrived at that
very moment, but, learning of the problem from Lindgren, he
proceeded to calm Moulton down.
Guillen testified that after learning about the problem, he
told Moulton, ‘‘Look, I think I have a solution to this. Let’s
drop the matter, and I will have a stern talking-to to Tom
Trakes.’’ He says Moulton replied, ‘‘Okay, fine,’’ and they
shook hands. Moulton’s testimony is a little different. He
says Guillen seemed to already know there was a problem.3
He says he listened to Lindgren explain his side of it to
Guillen and then he responded, telling Guillen what he knew
of it. Moulton says when Votruba overheard Lindgren he
then acknowledged to Moulton that he did know about
Trakes selling the flower stands. Moulton testified the discus-
sion ended as follows:
Well, the discussion ended—it was closing time, and
I couldn’t talk to Mr. Christian at all, and Mr. Guillen
had—you know, he told me he would handle the men
and straighten things out, and I just—you know, I took
that to mean, well, he would straighten it out as far as
that went. But I just told him, ‘‘Well, let’s just lock up
and go,’’ and then we shook hands as usual and walked
away.
Moulton denied ever agreeing with Guillen to take no fur-
ther action with respect to Trakes. In fact, on Friday, when
Christian returned, Moulton discussed the situation with him.
Christian testified he realized the matter was serious enough
to discuss with his attorney before taking any further steps.
Also that day Guillen appeared at the cemetery and offered
to return the $60. He had apparently gone to Trakes and
Trakes had gathered the money back. Christian told Guillen
the money was not the issue and declined to accept it until
he had had an opportunity to discuss the matter with Thom-
as.
Having received his advice over the weekend, on Monday
June 10, Christian began conducting an investigation. He
interviewed Trakes in Moulton’s presence. Trakes admitted
he knew of the Company policy concerning obtaining re-
ceipts for the sale of the easels, admitted he had heard
Moulton in April reiterate that easels were not to be sold
without receipts, and that he was aware of Moulton’s hand-
written admonition against their ‘‘disappearance.’’ Trakes
said he was aware that the fund was to be cancelled and the
money to be distributed, explaining that he did not see there
was any real difference between the self-distribution which
he had made and the upcoming distribution the Cemetery
was to make. Christian advised Trakes that he was suspended
with pay pending further investigation.
Christian also discussed the facts with Votruba, Lindgren
and Hodges. Hodges, he says, told him Trakes was the
‘‘mastermind’’ behind the whole thing. Hodges denies using
that term but concedes that Trakes is a ‘‘manipulator.’’ I
have earlier noted that Hodges’s testimony could not be fully
accepted on another matter. Similarly, I find that Christian
must be credited over him, to the extent that the words
‘‘mastermind’’ and ‘‘manipulator’’ differ. In fact, either ver-
sion suggests Hodges told Christian Trakes was the leader of
the incident.
After these meetings concluded, Christian says he evalu-
ated the facts. He concluded that Trakes knew the rule re-
garding receipts, knew the rule against theft, was aware of
the oral and written warnings issued by Moulton and that
Trakes was the person who had instigated the sale. He was
also aware that Votruba had at first tried to conceal his
knowledge of the incident, suggesting that the entire matter
was originally intended to be carried out in secret. Whether
that is entirely true is open to debate, for the easels had been
openly stacked. Even so, the sale occurred while Christian
was away for the day, Moulton had not been previously ad-
vised and the florist had come and gone without being ob-
served. These facts were not lost on Christian. As a result
he decided action needed to be taken against Trakes. He had
concluded Trakes had breached the Company rule against
theft of its property.
On Wednesday, June 11, he called Trakes back to the of-
fice. He told Trakes of his decision to terminate him but
gave Trakes the option of resigning rather than being fired.
Christian also told him that the Company would not stand in
the way of any unemployment claim which Trakes might
pursue. Trakes refused to resign and Christian then told him
he was discharged.
Trakes contacted Guillen who arranged for a meeting with
Christian and Thomas that afternoon. Guillen appears to have
conceded that Trakes had made a mistake and urged Re-
spondent to reconsider the decision to discharge him, noting
his long service. Christian agreed, saying he would notify
Guillen shortly. A negotiation session had been scheduled for
a few days later. At that meeting Thomas advised Guillen
that the Company had reconsidered the matter, but the deci-
sion to discharge Trakes would stand.
IV. ANALYSIS AND CONCLUSIONS
Preliminarily, it should be noted that neither the easels nor
the easel fund ever ‘‘belonged’’ to the men insofar as any
405BELLEVUE MEMORIAL PARK
4 Clearly Thomas was the person in full charge of negotiations.
Christian was his primary assistant. It is not totally clear, but it
seems likely that Moulton’s presence was so the other two could
consult with him about factual matters. He was never a spokesman
and, even as superintendent, had circumscribed authority.
5 I am not certain that even if an agreement had been made that
afternoon and broken the next day, that it would have breached the
good-faith bargaining obligation as defined by Sec. 8(d). Not every
broken agreement between a union and an employer is a breach of
Sec. 8(a)(5).
concept of ownership is concerned. The easels had been
abandoned to the Cemetery by the mourners. The Company
created the fund from that relinquishment for the use of the
men only upon Company approval. Even when the fund con-
sisted of a box in the mausoleum, it was only to be used
with the approval of the supervisor. All the men knew that.
Trakes certainly knew it. His description of the men’s discus-
sion about what to do with the 60 stands on June 5 suggests
all the men knew that the easels really were the property of
the Cemetery. They knew the money from the fund was
coming to them on Friday as something akin to the bonuses
which had been given from it in the past. If it was a bonus,
it clearly wasn’t something which they personally owned.
With that in mind, I proceed to the complaint allegations.
Counsel for the General Counsel argues that Trakes is the
victim of an unlawfully imposed rule change regarding the
handling of easel sale money. Specifically, she argues that
the theft rule and the handwritten rule against ‘‘disappear-
ances’’ of easels issued on April 24 are not the same. Sec-
ond, she argues that Moulton had agreed with Guillen on
Thursday June 6 not to discipline Trakes and to drop the
matter; an agreement which she says Christian reneged upon.
Finally, she argues that Respondent discharged Trakes for his
past union activities, noting that he was the most visible
union activist, having served as the Union’s observer at the
election and having been quoted in the newspaper.
I am unable to concur with any of the General Counsel’s
contentions. First, the outstanding rule against theft as a
grounds for discharge is not in dispute. It existed prior to the
Union’s appearance on the scene, was accepted by the Union
in early bargaining as a rule which could be enforced, and
has now been accepted as part of the written rules which the
Union later agreed upon. Moulton’s memo of April 24 did
not change that rule one whit. He orally observed to the crew
that there was a likelihood that theft was occurring since no
deposits were being made but easels were disappearing, and
warned them that if it continued they would be subject to
discharge for theft. The memo was a bit unprofessional, but
its meaning was clear: When you sell the easels, issue a re-
ceipt. A receipt would show that they had not ‘‘dis-
appeared.’’ Therefore, Respondent did not breach Section
8(a)(5) of the Act by issuing the memo. It was only a re-
minder of the previous rule against theft and the expected
punishment for its breach.
Second, I think it is abundantly clear, not only from the
testimony, but from his limited bargaining authority,4 that
Moulton did not have the authority to make the deal the
General Counsel claims he made with Guillen on June 6.
Even without that, Guillen’s testimony, allowing for honest
memory variance, is not significantly different from
Moulton’s. Guillen says he told Moulton he would give
Trakes a strong talking-to; Moulton recalls it as ‘‘taking care
of the problem.’’ Guillen’s additional reference to ‘‘drop-
ping’’ the matter came from him and can reasonably have
been perceived by Moulton, as he said, to call it quits for
the day. After all, from Moulton’s point of view, Christian
was gone and nothing could have been done anyway. ‘‘Drop-
ping’’ the matter seems to be most ambiguous in the cir-
cumstances. I therefore conclude that Guillen and Moulton
reached no agreement regarding what to do with Trakes that
afternoon. Since no agreement had been reached, Respondent
did not breach it it when it continued to pursue the matter
the following day.5 Accordingly, that theory is rejected.
Finally, the General Counsel’s 8(a)(3) theory must also be
rejected. First, although there is no doubt that Trakes had
been a principal union organizer and Respondent knew it,
there is no evidence of union animus and the timing of his
discharge is not connected to anything other than the missing
easels. Respondent is not alleged to have committed any
independent 8(a)(1) acts of interference, restraint, or coercion
of the employees. Its employees had unanimously chosen the
Union as their collective-bargaining representative in an
unremarkable election. Trakes was not part of the Union’s
bargaining team; Lindgren was. It is true that he made some
safety complaints to Moulton early on, but there is no show-
ing that Moulton became exercised over them. Indeed, those
issues were taken to the table where they were addressed in
a thoughtful manner. Trakes would not have been considered
a threat to Respondent’s well-being and therefore was not an
employee who warranted special attention because of his 6-
month-old union activities.
The General Counsel also argues that Respondent treated
Trakes more harshly than it did Votruba who had lied, mo-
mentarily, about his involvement in the sale of the easels.
Trakes was fired; Votruba was orally admonished at best.
From those separate treatments, the General Counsel argues
that I should infer animus and unlawful motive. I am unable
to do so. It is true that Trakes was treated more harshly than
Votruba, and both were longterm employees. Even so, Chris-
tian had evidence causing him to believe that Trakes had
‘‘masterminded’’ the matter and had done so secretly.
Votruba came clean almost immediately and the evidence did
not point to him as being the leader of the activity. Their dif-
ference in the level of participation is clear. That difference
is a valid explanation for their being treated differently.
Finally, it is clear to me that Christian reasonably con-
cluded that Trakes had decided to sell the easels secretly
without the proceeds going to the fund so management could
control its distribution. It is no defense that Trakes and the
others would have gotten their fair share upon distribution of
the fund. It was not for him to say what was a fair distribu-
tion. His decision deprived the Company of even knowing
what the proper amount to be distributed was. Moreover,
Moulton’s observation that easels were disappearing without
receipts being written appears accurate. He believed theft had
been occurring in the past; Trakes’ conduct only proved his
belief to be correct. The complaint will be dismissed.
Based on the foregoing findings of fact, I make the fol-
lowing
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CONCLUSIONS OF LAW
1. Respondent, Ontario Cemetery Association d/b/a Belle-
vue Memorial Park is an employer engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Southern California District Council of Laborers and its
affiliated Local 783, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove by a prepon-
derance of the evidence that Respondent has committed any
violations of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint is dismissed in its entirety.