Cal-Pacific Furniture Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 23, 1975

221 N.L.R.B. 1244 (N.L.R.B. 1975)

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yama Woodcraft , Inc., d/b/a Cal -Pacific Furniture
Mfg. Co . and Furniture Union Local 500, Uphol-
sterers' International Union , AFL-CIO. Case 21-
CA-13677
December 23, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHERS
On November 5, 1975, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed an
exception and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exception and brief
and has decided to affirm the rulings, findings, 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Yama Wood-
craft, Inc., d/b/a Cal-Pacific Furniture Mfg. Co., Los
Angeles, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
i Respondent excepts solely to the Administrative Law Judge's recom-
mended remedy as to backpay on the ground that it does not permit
Respondent to deduct from the sums otherwise due the discnmmatees the
amounts of state unemployment compensation allegedly received by them
We find no merit in this exception It is well settled that state
unemployment compensation benefits do not constitute interim earnings
and, therefore , are not deductible from the Board 's backpay awards
NLRB v Gullets Gin Company, Inc., 340 US 361 (1951 ), Southern
Household Products Company, Inc, 203 NLRB 881, 884 (1973), Rockwood
Stove Works, 63 NLRB 1297, 1299 (1945)
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Los Angeles, California, on October 8,
1975.1 The complaint, issued July 14, is based upon a
charge filed May 23 by Furniture Union Local 500,
Upholsterers' International Union, AFL-CIO, hereinafter
referred to as the Union. The complaint alleges that Yama
Woodcraft, Inc., d/b/a Cal-Pacific Furniture Mfg. Co.,
hereinafter referred to as Respondent, violated Section
8(a)(1) and (3) of the National Labor Relations Act,
hereinafter referred to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. General Counsel and
Respondent waived the filing of briefs.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in business in Los
Angeles, California, manufacturing and selling furniture.
In the normal course and conduct of its business
operations Respondent annually purchases and receives
supplies valued in excess of $50,000 directly from suppliers
located outside the State of California. I find that
Respondent is, and at all times material herein has been,
an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Furniture Union Local 500, Upholsterers' International
Union, AFL-CIO, is, and at all times material herein has
been , a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent is a furniture manufacturer whose president
is Gene Rothstein (Rothstein). In some respects Rothstein
also acts as general manager of the plant, and he has
delegated many operational responsibilities to Ricardo
Durazo (Durazo), an upholstery supervisor. Durazo has
under his direct supervision two employees who, allegedly,
were discharged by Durazo in violation of the Act - Juan
Alvarez Mendez (Alvarez) and Omar Castro (Castro).
Alvarez and Castro were two of the most active, and
probably the most active, employees attempting to organ-
ize Respondent's plant. In addition to signing union
authorization cards themselves, they talked with other
employees (at their homes) about the Union, distributed
cards, collected 73 signed cards, and delivered the signed
cards to the Union. That activity occurred in April and
May. No union activity was engaged in by Alvarez or
Castro, or any union representative, on Respondent's
premises , and neither of them ever spoke with Durazo
about such union activity.
Durazo discharged Alvarez and Castro (separately) on
May 21, stating that the reason was their drop in work
production.
I All dates hereinafter are within 1975, unless stated to be otherwise.
221 NLRB No. 216
CAL-PACIFIC FURNITURE MFG CO. 1245
A. Alleged Discharge of Alvarez and Castro
Paragraph 5 of the complaint alleges that, on or about
May 21, Respondent discharged Alvarez and Castro
because of their union or other protected activity.
Only the reason for the discharges is in issue ; the fact of
discharge is not controverted. Respondent interposed
several defenses:
1. It is alleged that Respondent had no knowledge of
union organizational efforts at the time of the discharges.
Alvarez and Castro testified that there were no organiza-
tional efforts on Respondent's premises. However, Isidro
Alonzo (Alonzo), an upholsterer employed by Respondent,
testified that he told Durazo on May 14 that Alvarez and
Castro ". . . were gathering cards for the Union." Alonzo
further testified that he attended a meeting of Durazo and
some employees on May 22, at which time Durazo told the
employees ". . . that he had fired or discharged Omar
Castro and Alvarez because they were gathering cards for
the Union; and if he found out that any of the other
workers were doing that, he was either going to discharge
them or refer them to Immigration." That testimony by
Alonzo was corroborated by Angel Gonzales (Gonzales)
and Salvador Gutierrez (Gutierrez).
Durazo2 testified, but he neither denied nor testified
concerning Alonzo's alleged conversation with him on
May 14 and his alleged statements to employees on May
22. Alonzo, Gonzales, and Gutierrez are credited. This
defense, therefore, is without merit.
2. It is alleged that Alvarez and Castro should not be
credited because of their frequent violation of company
rules as testified to by Respondent's security officer, Royal
Bell (Bell).3 This argument has several weaknesses, fatal to
its use as a defense. First, both dischargees have worked for
Respondent since 1971, and so far as the record shows they
have been reliable, respected workers who have been
promoted on occasion. There is no indication that any
violation of rules by them was cause of concern to
Respondent until after May 14, which is the day Alonzo
told Durazo about the Union activity of Alvarez and
Castro. Bell testified that he had warned Castro more than
once prior to May I about smoking in the bathroom, but
there is no indication that the violations then were of
serious concern; that there were any other earlier violations
by Castro; or that there were any violations by Alvarez
prior to May 14. There is a strong inference that
Respondent's concern with violations by Alvarez and
Castro commenced after May 14. Second, there is no
explanation why Respondent introduced documentary
evidence of violations by Alvarez and Castro only in May.
Bell had worked at Respondent's plant since February, and
he testified that he regularly submitted violation reports to
Respondent. Although it is not entirely clear from the
testimony, it appears that Bell made regular oral reports of
violations throughout his employment, and Bell testified
that he filed written reports in April. Since neither the
April written reports, nor details about other alleged oral
reports were introduced into evidence, and since there is no
showing that violations by Castro4 prior to May 15 were of
serious concern, it is logical to infer that Respondent's
concern with violations by Alvarez and Castro after May
14 was dictated by something other than the violations
themselves. The only apparent answer is that the reports
were emphasized, or partially contrived, after May 14 or
that earlier reports would not support this defense; or
possibly both. Third, there is no explanation of why only
Alvarez and Castro find themselves in a quarrel with their
employer about violations of rules. Respondent's Exhibit
1(a) through 1(e) shows others who consistently violated
the rules, yet no action of any kind was taken against them,
so far as the record shows.
Alvarez and Castro were firm witnesses. Based upon
their testimony, and upon observation of them on the
stand, they are credited. It may well be, as Respondent
contends, that the two (and particularly Castro) are
contentious and arrogant, but that alone is no basis upon
which to discredit their testimony. Further, as pointed out
by counsel for the Charging Party, the testimony most
damaging to Respondent did not originate with Alvarez
and Castro; it came from others, whom Respondent did
not attack.
This defense is without merit.
3. It is alleged that Respondent is not shown to have
union animus. However, _ that contention ignores the
credited testimony of Alonzo, Gonzales, and Gutierrez.
Respondent's union animus is found, based upon said
testimony.
4. Counsel for Respondent argued at hearing that
Alvarez and Castro were discharged, at least partially, for
violation of company rules. It is apparent from Respon-
dent's Exhibit' 15 that Alvarez and Castro violated
company rules. However, it also is apparent that other
employees violated the rules but were not disciplined, and
that Exhibit 1 is highly selective in that it refers 'almost
entirely to events occurring after May 14. More in point,
Durazo testified at length concerning the allegedly slow
work and low production of Alvarez and Castro. He said
he had discussions on the' subject with the two of them
prior to their discharge , as well as at the time of their
discharge. He testified' that the two were discharged
because of their drop,in production, and that when he
discussed their production with them, he did not talk about
Bell's reports of rules violations. It is quite clear, and
found, that when Durazo fired Alvarez and Castro he told
them the reason was their slow work and low production,
and that no other reason was given to them.
Even if it is assumed , arguendo, that Respondent
subjectively considered the rules violations when Alvarez
and Castro were fired, such consideration was no more
than a pretext, as discussed in paragraph 2 above.
This argument is without merit.
5. Respondent's basic defense is that Alvarez and
Castro were discharged because of their poor production
record.
2 Admitted by Respondent to be its foreman, agent and supervisor
within the meaning of the Act
3 Bell's duties include enforcement of company rules, including its rules
concerning breaks, smoking , and eating
4 No violations by Alvarez were shown pnor to May 15.
5 At close of hearing , counsel for the General Counsel moved to strike
from the evidence Resp . Exh 1(d) through (e) on the basis that the exhibit is
irrelevant - that Durazo testified he did not use violation of rules as a basis
for discharging Alvarez and Castro That motion hereby is denied
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Durazo testified that Alvarez' usual production was 8 or
10 pieces per day,6 but that his production dropped in May
to 5 or 6 each day. Durazo said he talked with Alvarez
about May I and May 15 about his drop in production,
and warned him he would be fired unless improvement was
made. Durazo said Alvarez was a "good worker" prior to
May, and he was promoted to "the top of the line" about 2
months before his discharge. because his production
dropped after the promotion, Alvarez was demoted, and
because his production remained low after two warnings,
Alvarez was fired.
Durazo said he talked with Castro twice in April about
being slow in his work and losing time talking with other
people, and that Castro's production had dropped from a
usual five to eight pieces per day to five or six pieces each
day. Durazo said he fired Castro May 21 because he was
slow and talked too much with other employees. On one
occasion in 1974, Castro acted as foreman for about 3
months.
Alvarez testified that, about 2 months before he was
discharged, Durazo complimented him on his work,
Durazo thereafter did not talk with him about his work;
when he was fired, Durazo told him that he had hired 10
new people, but production decreased rather than in-
creased.
Castro testified that, when Durazo fired him, Durazo
said Castro could have gone up in his work, but he did not
place himself on the side of the Company; that Castro was
highly paid and should produce more than others, as an
example; and that Castro ". . was doing something that
he didn 't like." Castro said Durazo never previously had
talked with him about his production
Alvarez and Castro are credited, based upon their
appearance and demeanor on the stand, and upon the
credited testimony of Alonzo, Gonzales, and Gutierrez that
Durazo told employees that Alvarez and Castro were fired
because they distributed union cards
Having interposed the defense of low production, it was
incumbent upon Respondent to prove that defense. No
documentary evidence was produced, although it was
available. ? No testimony was produced other than a few
vague and unsupported statements by Durazo. No stand-
ards of production or other objective criteria were offered.
In short , Respondent failed to sustain its burden of proof.
6. Respondent stated upon closing that testimony
showed there had been a sharp drop in business , and that
in such event it is necessary to tighten up production
schedules previously "lax and tolerant." Aside from the
fact that low production clearly was not the reason for
firing Alvarez and Castro, as explained above, Respon-
dent' s statement is contrary to that of its president,
Rothstein , who testified, "We had a large increase in
business that took place approximately the 1st of March,
1975," and 40 to 50 employees were hired between March 1
and May 21. It is found that a drop in business is not
involved herein.
Respondent having failed to prove its defenses, it is
found that Alvarez and Castro were discharged in violation
of the Act, as alleged
B. Alleged 8(a)(1) Violations
Paragraph 6 of the complaint alleges four 8(a)(l)
violations said to have occurred during a meeting Durazo
held with employees on May 22, as described above. Those
four allegations are:
(1) Durazo told employees he fired Alvarez and Castro
May 21 because of their union activities.
This allegation was proved by the credited testimony of
Alonzo, Gonzales, and Gutierrez, as discussed above
(2) Durazo promised employees wage increases in order
to discourage union support.
No testimony or evidence was introduced concerning
wage increases . However, proof of promise of benefits, or
protection, in violation of the Act was made in the credited
testimony of Gonzales, who said:
Mr. Durazo said that in case that the Union lead
him to the factory, that the factory was going to ask all
of the workers for their papers.
And he said that in case the Union did not enter
there, that the Union was going to send Immigration to
the factory; that in case that would happen, that they
had a place to keep the people that knew how to do
their work; and that is all.
Q. Mr. Gonzales, can you clear up, if you know,
what he meant by "papers", when he said about the
papers?
A. I imagine that it's the green card.
Q. Did he say it in relation to the conversations he
had about Immigration?
A. Yes.
Gonzales' testimony is corroborated by that of Alonzo
and Gutierrez, who are credited.
(3) Durazo interrogated employees concerning their
union activities.
This allegation was proved by the credited testimony of
Gutierrez, who said.
And he also told us, he put a few questions to me
because he said that I was one of the people that was
involved with them.
Q. What did he ask you?
A. He asked me what benefits could we obtain
from the Union that - why were we trying to get a
Union in the company.
This testimony is corroborated by the credited testimony
of Gonzales.
(4) Durazo threatened employees that they would be
reported to the Umted States Immigration and Naturaliza-
tion Service in order to discourage their support of the
Union.
This allegation was proved by the credited testimony of
Alonzo, who stated:
He told them that he had fired or discharged Omar
Castro and Alvarez because they were gathering cards
for the Union; and if he found out that any of the other
6 Production is assessed on a piece basis, as shown by tickets turned in Piece tickets are turned in each day to Durazo
by employees at the end of each workday
CAL-PACIFIC FURNITURE MFG CO 1247
workers were doing that, he was either going to
discharge them or refer them to Immigration.
This testimony is corroborated by the credited testimony
of Gonzales and Gutierrez.
Respondent offered no defense to the above allegations
of 8(a)(1) violations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully dis-
charged Juan Alvarez Mendez and Omar Castro. I will,
therefore, recommend that Respondent offer said individu-
als their former jobs, or if those jobs no longer exist,
substantially equivalent jobs, without prejudice to their
seniority and other rights and privileges, and make them
whole for any loss of earnings suffered by reason of the
discrimination against them, by payment to them of sums
of money equal to that which they normally would have
earned, absent the discrimination, less net earnings during
such period, with backpay computed on a quarterly basis
in the manner established in F W Woolworth Company, 90
NLRB 289 (1950), plus interest at the rate of 6 percent per
annum , as set forth in Isis Plumbing & Heating Company,
138 NLRB 716 (1962). It will be further recommended that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine the
amounts of backpay due and the rights of reinstatement
under the terms of these recommendations.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Yama Woodcraft, Inc., d/b/a Cal-Pacific Furniture
Mfg. Co. is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Furniture Union Local 500, Upholsterers' Interna-
tional Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
8 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 findings,
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
3 By coercively telling employees that their fellow
employees had been discharged because of union activi-
ties, promising employees benefits in order to discourage
support of the Union; and interrogating and threatening
employees because of their union activities, Respondent
interfered with, restrained, and coerced said employees in
the exercise of their rights guaranteed them by Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
4. By discharging Juan Alvarez Mendez and Omar
Castro, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
5. By the action described in paragraph 4, above, and
by the independent 8(a)(1) violations described in para-
graph 3, above, Respondent has interfered with, restrained,
and coerced, and is interfering with, restraining, and
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
Upon the above findings of fact, conclusions of law and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended.
ORDERS
Respondent, Yama Woodcraft, Inc., d/b/a Cal-Pacific
Furniture Mfg. Co., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from-
(a) Coercively telling employees that their fellow employ-
ees were discharged because of union activities; promising
employees benefits in order to discourage support of the
Union, interrogating and threatening employees because
of their union activities.
(b) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or any
term or condition of employment in order to discourage
union membership or activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Juan Alvarez Mendez and Omar Castro
immediate and full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their loss of
earnings in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in the
section of this Decision entitled "The Remedy."
(c) Post at their offices in Los Angeles, California, copies
of the attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
deemed waived for all purposes
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
(Continued)
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 21, after being duly signed by said Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing , within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice. We intend to carry out the
order of the Board, thejudgment of any court, and to abide
by the following:
The Act gives all employees these rights
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed to
them by Section 7 of the National Labor Relations Act,
in violation of Section 8(a)(1) of the Act, by coercively
telling employees that their fellow employees were
discharged because of union activities; promising
employees benefits in order to discourage support of
the Union; or interrogating and threatening employees
because of their union activities
WE WILL NOT discharge or otherwise discriminate
against any employee because he or she has joined,
helped, or supported a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL offer Juan Alvarez Mendez and Omar
Castro full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their former rights and
privileges, and make them whole for any loss of
earnings they may have suffered.
YAMA WOODCRAFT, INC.,
D/B/A CAL-PACIFIC
FURNITURE MFG. CO.