Central Casket Co.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 362 (N.L.R.B. 1976)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Casket Co. and Upholsterers' International
Union of North America , Local No. 3, AFL-CIO
and Irma Lara . Cases 20-CA-9316 and 20-CA-
9867
June 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On October 21, 1975, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
We agree with the Administrative Law Judge that
the Respondent in discharging Anastacio Gomez
and Margaret Huerta violated Section 8(a)(1) and (3)
of the Act. However, contrary to the Administrative
Law Judge, we find for reasons set forth below that
the discharge of Irma Lara also violated those provi-
sions of the Act but that Alex Gonzales' quitting was
not an unlawful constructive discharge.
Irma Lara: Irma was assertedly discharged for not
coming to work for a week without proper excuse.
The Administrative Law Judge found that she had
secured permission to be absent, that Respondent
had gone to some effort to create the appearance of a
situation which would justify her discharge,' and that
its proffered reason for the discharge was wholly pre-
textual. He further found that Respondent' s presi-
dent, Thompson, believed that Irma might well be
instrumental in reviving union activity in the plant
1 In par 1(d) of his recommended Order, the Administrative Law Judge
provides that Respondent shall cease and desist from "in any like or related
manner" infringing upon employee rights guaranteed in Section 7 of the
Act However, in cases of this kind, involving unlawful discharges, It is the
Board's established policy to use the injunctive language "in any other man-
ner " See N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941),
Centeno Super Markets, Inc, 220 NLRB 1151 (1975)
2 Thus, during Irma's absence in Mexico, Thompson had Cunel, a depart-
mental head, send Irma a letter directed to her local residence stating that if
she did not return to work by Friday, November 12, with an adequate
medical excuse for her absence she would be terminated At the time the
letter was sent, Respondent knew that Irma was out of the country and
would not receive the letter in time to be able to return to work by Novem-
ber 12 It also knew that she had no medical reasons for her absence
and that she was a troublemaker because she had
urged or caused employee Conde to file certain vaca-
tion pay claims. Nevertheless, he found her discharge
not unlawful because the evidence was, he held, in
accord with the conclusion that she was discharged
solely for urging Conde to file her claims. That con-
duct on her part was, he acknowledged, concerted,
but he found, nonetheless, that it was not protected
under the Act. In consequence he concluded that
Irma's discharge was not unlawful.
We believe that the Administrative Law Judge er-
red on several grounds.
First, Irma's urging Conde to file her claims was
not only concerted but, as the conversation between
the two employees was directly concerned with terms
and conditions of their employment, it was clearly
protected as well. Consequently, Irma's discharge
was unlawful under Section 8(a)(1) even if its sole
cause was her urging Conde to file the claims. Sec-
ond, Thompson was bitterly opposed to the Union
and, as indicated, strongly suspected that Irma might
stir up union activity again. These facts, in conjunc-
tion with the patently contrived pretextual reason for
the discharge, fully support the conclusion that
Irma's dismissal was caused in substantial part by
Thompson's concern that she might in the future en-
gage in lawful union activities. Therefore even if
Irma's urging Conde had not been protected activity,
as the Administrative Law Judge erroneously held,
her discharge was, we find, nevertheless unlawful be-
cause it was in substantial part motivated by such
antiunion considerations.'
In summary then, we find that Irma's discharge
violated the Act as alleged in the complaint whether
it was caused by her urging Conde to file her claims
or by fear she would revive union activities in the
plant, or by both such reasons.
In view of our finding that Irma Lara was unlaw-
fully discharged, we shall order, inter alia, that she be
offered reinstatement and be made whole for any
loss of pay she may have suffered as a result of the
discrimination against her in the manner and to the
extent prescribed in that section of the Administra-
tive Law Judge's Decision entitled "The Remedy"
for the other employees found to have been unlaw-
fully discharged.
Alex Gonzales: On June 19, 1974, Respondent
President Thompson talked in his office to several
employees about their production and other matters.
Gonzales, who had signed a union card and who had
been otherwise active in the Union, was one of them.
Thompson told Gonzales he had been overheard sol-
iciting fellow workers for the Union; that such con-
3 See N L R B v Jamestown Sterling Corp, 211 F 2d 725, 726 (C A 2,
1954)
225 NLRB No. 37
CENTRAL CASKET CO. 363
duct was contrary to the Company's previously post-
ed no-solicitation rule; and that, further, such con-
duct would result in his discharge. He also criticized
Gonzales' work habits and his worksheets, which al-
legedly were not being kept properly, and warned
him that he was going to be closely watched with
respect to those matters. Gonzales returned to his
job, completed his shift, but never again reported
back to work. A week or so later Respondent sent
him a letter formally discharging him for unexcused
absences.
The Administrative Law Judge concluded that the
broad prohibition on Gonzales' union solicitation,
coupled with the threat to watch him at work and
check out his worksheets, was intended to convince
Gonzales that further support of the Union would
result in his discharge. He further concluded that in
consequence Gonzales feared harassment and possi-
ble reprisals and therefore was, as the General Coun-
sel contended, prompted to quit. From all this, the
Administrative Law Judge finally concluded that
Gonzales' quitting was not voluntary, and was an un-
lawful constructive discharge intended by the Re-
spondent to upset the Union's organizational cam-
paign. We find this result unwarranted.
Initially, there is no evidence whatsoever that
Gonzales feared "harassment or possible reprisals"
on the job. That idea apparently came into the case
by way of a suggestion by the General Counsel, not
by way of evidence.' Furthermore, as of June 19
when Gonzales quit, no employee, as far as the rec-
ord shows, had been subjected to harassment or on-
the-job reprisals for union activity.' Second, there is
no evidence that Gonzales quit because of the unlaw-
ful restriction on his engaging in solicitation for the
Union. All we have is the sequence of events of June
19, culminating in Gonzales' final departure, from
which to speculate that in some unclear way his leav-
ing was related to Thompson's earlier criticism of
him. But factually that is hardly enough, despite
Thompson's clear antiunion proclivities, to spell out
a constructive discharge here. This is especially so
since Gonzales himself, as the General Counsel con-
cedes, advanced to Respondent another reason for
his absence after June 19 totally unrelated to those
events, namely, that he was sick. Thus, according to
apparently credited and uncontradicted testimony,
Gonzales appeared at the plant on June 21 to collect
a paycheck at which time he stated he had been ab-
sent because of illness and, further, that he would
return to work the following Monday, which he nev-
er did. Hence such testimony as there is concerning
Gonzales' reasons for quitting belies and refutes the
already questionable inference that Gonzales quit
work because of the order to the effect that he must
cease engaging in certain lawful solicitation for the
Union.
But even assuming that Gonzales quit because he
feared "harassment and possible reprisals" or be-
cause of the threatened unlawful restrictions on his
union activities, there still would not be enough here
to spell out a constructive discharge. Gonzales' work-
ing conditions were not adversely affected as a result
of Thompson's talk; rather he went back to the same
job to be performed basically in the same old way.
He was not given undesirable tasks or undesirable
hours or anything of that nature. At most he was told
he would have to produce more, but the standard
imposed was that generally applicable in the plant.
He was also warned he had to do a more accurate
job on his worksheets. But these conditions can hard-
ly be considered onerous impositions, and, even cou-
pled with a threat of being closely watched to see
that they were being complied with, they do not con-
stitute harassment or reprisal.' In fact, as noted, there
is no evidence that the Respondent actually harassed
any employees or engaged in any on-the-job reprisals
to force any employees to quit. If Gonzales harbored
any fears of such treatment, they rested on no objec-
tive basis but were simply the product of his subjec-
tive misgivings. In any event, there is nothing posi-
tive in the record to conclude that Gonzales' quitting
was caused by any harassment or reprisals or by any
realistic justifiable fears of being subjected to such
conduct.
Furthermore, it does not follow that an employee's
quitting over a threatened restriction on union activi-
ty is as a matter of law a constructive discharge. A
threat is not the equivalent of the actual imposition
of unlawful conditions of employment;' it does not
in any meaningful sense render the conditions of em-
ployment so intolerable as to compel an employee to
leave his job. The Act provides an appropriate and
direct remedy for the infringement of rights protect-
ed by Section 7 and there is nothing in it which pro-
vides that all threats unlawful under Section 8(a)(1)
should or can be converted through unilateral em-
ployee action into a discharge. Also, Gonzales was
not really compelled to stop engaging in lawful solici-
tation. He could have continued to do so and, if he
had, Thompson, as far as we know, may have done
4 Gonzales was not called as a witness , and thus, of course, did not testify 6 Cf Kintner Bros, Inc, 167 NLRB 57, 57-58 (1967), enfd sub nom Retail
5 Though Respondent discharged employees because of their union activ- Store Employees Union Local 880 v N L R B, 419 F 2d 329 (C A D C.,
ity, there is no evidence it discriminated against them by way of assigning 1969)
them to undesirable jobs or to working under unfavorable conditions be- r Cf Block-Southland Sportswear, Inc, Southland Manufacturing Company,
cause of such activity Inc, et al, 170 NLRB 936,938 (1968), enfd 420 F 2d 1296 (C A D C, 1969)
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing and his unlawful threat would have been
shown up to be only an unlawful bluff.' Yet again,
Thompson may in such circumstances have acted on
his threat and discharged Gonzales. In that event, we
would not have before us the case the Administrative
Law Judge has rather prematurely decided.
In view of the foregoing observations it seems ob-
vious to us, and we find, that Gonzales was not con-
structively discharged, that he simply quit, and that
therefore his departure did not violate Section 8(a)(3)
and (1) of the Act.9
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 as modified
below and hereby orders that the Respondent, Cen-
tral Casket Co., Fresno, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as modi-
fied herein:
1. In paragraph 1(d) substitute the word "other"
for the words "like or related."
2. Substitute the following for paragraph 2(a):
"(a) Offer Anastacio Gomez, Jr., Margaret Huer-
ta, and Irma Lara immediate and full reinstatement
to their former positions or, if those positions no lon-
ger exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
which they may have suffered by reason of the dis-
crimination practiced against them, in the manner set
forth in the "Remedy" section of the Decision."
3. Substitute the attached notice for that of the
Administrative Law Judge.
9 It is on this point , among others , that Playskool, Inc, a Division ofMilton
Bradley Company, 195 NLRB 560 (1972), which the Administrative Law
Judge cites in support of his result, is inapposite to the present case In that
case the employee was faced with complying with unlawful union-security
and checkoff provisions as a condition of continued employment She did
sign the required papers but then quit On those facts the Board found a
constructive discharge However, in Playskool the employee was not just
faced with a threat of discharge but with a fait accompli with respect to her
employer's having entered into an unlawful contract requiring her compli-
ance if she wished to continue on the job Also relevant to the holding in
that case is the fact that the type of conduct involved in Playskool con-
cerned conditions of employment that Congress specifically sought to pros-
cribe in Sec 8(a)(3) of the Act
The Administrative Law Judge also cited Sargent Electric Company, 209
NLRB 630 (1974), in support of his result That case is, however, clearly
inapplicable as it turned on the issue of the on-the -job safety of the employ-
ee who "quit," a matter not of concern here In that case the employer
would give the employee no assurances with respect to his on-the-job pro-
tection when he was faced with a coworker 's not-to-be-ignored threat to
beat him up because of his engaging in certain unpopular intraunion activi-
ty The employee's consequent quit was held to be a constructive discharge
9 In agreeing with the Administrative Law Judge 's conclusion that Fran-
cisco Lara was not constructively discharged when he quit after being repre-
hended, probably unfairly by Thompson, we rely, inter alia, on (1) the fact
he was not subjected to any harassment or other on - the-job treatment that
rendered his continuing to work intolerable-in fact his terms and condi-
tions of employment remained unchanged-and (2) that the reason he gave
for his quitting at the time he quit-which we find was the real reason for
his leaving-was he would not put up with Thompson 's speaking to him as
he had In these circumstances , we find no basis for concluding that
Thompson , whatever his intent , forced Lara to quit
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given
an opportunity to present evidence and argument, it
has been determined that we violated the law by
committing an unfair labor practice. In order to rem-
edy such conduct, we are being required to post this
notice. We intend to comply with this requirement,
and to abide by the following commitments:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a freely
chosen representative
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything which interferes
with these rights.
WE WILL NOT discharge employees, or discrim-
inate against them in any other manner with re-
gard to their hire or tenure of employment, or
any term or condition of their employment, be-
cause of their participation in union organiza-
tional activities, or their participation in concert-
ed activity for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL NOT limit the right of our employees
to engage in union solicitation on company
premises, while on nonwork time.
WE WILL offer Anastacio Gomez, Jr., Marga-
ret Huerta, and Irma Lara immediate and full
reinstatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges.
WE WILL, further, make these workers whole
for any pay losses which they may have suffered
by reason of the discrimination practiced
against them, with interest thereon at 6 percent
per annum.
CENTRAL CASKET CO.
CENTRAL CASKET CO. 365
DECISION
STATEMENT OF THE CASE
co, California, before me. Following its close, General
Counsel's representative and Respondent's counsel filed
supplementary briefs; together with their initial briefs,
these supplementary briefs have been duly considered.
MAURICE M. MILLER, Administrative Law Judge: Upon a
charge and successive amended charges filed on June 20,
August 26, and November 6, 1974, which were duly served,
the General Counsel of the National Labor Relations
Board caused a complaint and notice of hearing with re-
spect to Case 20-CA-9316, dated October 2, 1974, to be
issued and served on Central Casket Co., designated as
Respondent within this Decision. (When the Complainant
Union's second amended charge with respect to the case in
question was filed on November 6, General Counsel con-
currently issued his amended complaint and notice of hear-
ing, which was duly served.) Therein, Respondent was
charged with the commission of unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
Respondent's successive answers, duly filed, conceded cer-
tain factual allegations within General Counsel's complaint
and amended complaint, but denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing with respect to Case 20-
CA-9316 was held before me on various dates between
November 19 and December 6, 1974, in Fresno, California.
The General Counsel and Respondent were represented by
counsel. Each party was afforded a full opportunity to be
heard, to examine and cross-examine witnesses, and to in-
troduce evidence with respect to pertinent matters. Follow-
ing the hearing's close, General Counsel's representative
and Respondent's counsel filed briefs. Concurrently with
his brief, General Counsel's representative moved for a re-
opening of the record and requested my reconsideration of
a partial dismissal order, previously entered while the hear-
ing was in progress, with respect to the claimed construc-
tive discharge of Francisco Lara, a designated discrimina-
tee.
Shortly thereafter, on a charge filed January 16, 1974,
which was duly served, General Counsel caused a com-
plaint and notice of hearing with respect to Case 20-CA-
9867, dated March 21, 1975, to be issued and served on
Respondent; the latter was charged, therein, with further
8(a)(1) and (3) unfair labor practices, bottomed upon the
termination of Irma Lara, complainant, and Francisco
Lara's wife. Respondent's answer, duly filed, denied the
commission of the unfair labor practices newly charged.
On April 17, 1975, General Counsel moved for a consoli-
dation of Cases 20-CA-9316 and 20-CA-9867; pursuant
to my subsequent order, dated April 25, 1975, the cases
were consolidated. Further, the record previously made
was reopened, and my dismissal order, disposing of Gener-
al Counsel's charge relative to Francisco Lara's challenged
termination, was revoked.
Thereafter, pursuant to my May 5 order granting a fur-
ther motion which General Counsel had filed, seeking per-
mission to introduce certain newly discovered evidence,
and various telegraphic orders, the reopened hearing with
respect to these consolidated cases was held on May 8 and
9 in Fresno, California, and May 20, 1975, in San Francis-
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
Respondent raises no question herein with respect to
General Counsel 's jurisdictional claim . Upon the relevant
factual declarations within Case 20-CA-9316's amended
complaint herein-specifically, those set forth in detail
within the second paragraph thereof-which have not been
denied , and upon which I rely, I find that Respondent
herein was , throughout the period with which these consol-
idated cases are concerned , and remains , an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business operations which affect commerce
within the meaning of Section 2 (6) and (7) of the statute.
Further , with due regard for presently applicable jurisdic-
tional standards , I find assertion of the Board's jurisdiction
in these cases warranted and necessary to effectuate statu-
tory objectives.
II. COMPLAINANT UNION
Upholsterers' International Union of North America,
Local No. 3, AFL-CIO, designated as Complainant Union
within this Decision, is a labor organization within the
meaning of Section 2 (5) of the Act , as amended, which
admits certain of Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
This case, despite its relatively complex factual setting,
presents a limited number of substantive questions which
have been thoroughly litigated, and comprehensively
briefed. For present purposes those questions may be sum-
marized as follows:
1. Whether Respondent 's management representatives,
Peter "Bill" Thompson and Marshall Ostlund, prohibited
union discussion within Respondent's Fresno facility, or
threatened worker participants in such discussions with
possible discharge.
2. Whether Respondent, within a 2-1/2-month period,
terminated or constructively discharged six workers be-
cause of their union sympathies , or their participation in
some "other" concerted activity for mutual aid and protec-
tion.
3. Whether Respondent subsequently terminated the
employment of Irma Lara for similar reasons, statutorily
proscribed.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Whether Respondent's course of conduct, when con-
fronted with Complainant Union's campaign for represen-
tative status, compassed unfair labor practices sufficiently
pervasive and serious to preclude the possibility that a fair
representation vote could presently be conducted.
5. Whether Complainant Union can properly be consid-
ered the designated and selected representative of some
uncoerced majority of Respondent's Fresno employees,
within a defined group appropriate for collective-bargain-
ing purposes.
6. Whether a Board Order directing Respondent to bar-
gain with Complainant Union is necessary and proper to
remedy Respondent's purportedly massive and pervasive
unfair labor practices.
With respect to these questions, General Counsel, of
course, seeks affirmative responses. Respondent, however,
requests a rejection of General Counsel's 8(a)(1) and (3)
contentions. Further, Respondent contends that Com-
plainant Union's representation claim derives from "taint-
ed" proof regarding its purported designation by a majon-
ty of Respondent's Fresno workers, since its presently
proffered designation cards were solicited directly by su-
pervisors, or with supervisory support. Respondent seeks a
Board determination, therefore, that no current "bargain-
ing order" can properly be considered warranted.
B. Facts
1. Preliminary statement
Some portions of General Counsel's testimonial and
documentary presentation, herein, have not been disputed.
Much of his presentation has, however, been contested.
Thus, with respect to numerous matters mired in testimo-
nial conflict, significant credibility determinations will be
required. In that connection, certain preliminary comments
should be made.
Throughout the period with which this case is con-
cerned, most of Respondent's Fresno plant workers bore
Spanish surnames; so far as the record shows, this may still
be true. For many, Spanish constituted, and continues to
constitute, a primary language of communication; their ca-
pacity to speak, read, and/or comprehend spoken English
has been, and remains, limited. For others, English seem-
ingly constitutes a possibly familiar second language, with-
in which their capacity to communicate, however, can
hardly be considered well-rounded. Consequently, several
witnesses , presented in General Counsel's behalf, testified
generally with a translator's help; others requested such
assistance with greater or lesser frequency when momen-
tarily nonplussed. And, since General Counsel's testimo-
nial case herein deals significantly with purported
speeches, conversations, communications, and representa-
tions couched in English verbiage, the capacity of various
Spanish-speaking witnesses who purportedly heard them to
comprehend their substance and to relate with sufficient
completeness their recollections with respect thereto, will
necessarily require evaluation before any well-grounded
credibility determinations can be made herein.
The testimonial record further reflects the presence of
certain familial, social, and business relationships, between
particular witnesses, which could conceivably have molded
or influenced their testimony. Wherever such relationships
have been testimonially demonstrated or conceded, the
possible presence of countervailing interests, bias, or sub-
jection to influence generated thereby must be, and they
have been, considered.
Therefore, readers of this Decision should note that,
with due regard for these factors, which may have affected
the testimonial capacity and believability of various wit-
nesses , my factual determinations herein will be derived,
not merely from my courtroom observations, and not sole-
ly from completely self-contained testimonial recitals
which some particular witness or witnesses deemed gener-
ally credible, may have proffered, but likewise from rea-
sonable syntheses compounded following a review of the
full record, with due consideration of their probable "inter-
nal" consistency, their susceptibility to possible "external"
verification, and the natural logic of probability. Further, I
have proceeded with due regard for relevant judicial pro-
nouncements defining a trier-of-facts role. See, particular-
ly, Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496
(1951); N.L R.B. v. Walton Manufacturing Company &
Loganville Pants Co., 369 U.S. 404, 408, (1962); and
N.L.R.B. v. J.P. Stevens and Co., 464 F.2d 1326, 1328 (C.A.
2, 1972), in this connection. With respect to particular wit-
nesses whose testimony, set forth within the record, may
have been partially or completely rejected, pursuant to my
factual determinations herein, readers should merely note
that their proffered recollections have been rejected be-
cause I found conflicts reflected therein, with the divergent
testimony provided by more credible witnesses, or because
I considered their testimony generally unworthy of belief.
All such testimony though perhaps not set forth with par-
ticularity, has been, nevertheless, reviewed and considered.
No portions of the record have been neglected or disre-
garded.
2. Background
Respondent maintains a comparatively new Fresno, Cal-
ifornia, casket manufacturing plant. That facility, so the
record shows, commenced productive operations during
August 1973, some 8 months before the developments with
which we are herein concerned. The firm's principal stock-
holder and current president, Peter W. "Bill" Thompson,
Jr., has been for some time likewise president of a much
older, well-established casket manufacturing firm, Ameri-
can Burial Casket Company, which maintains an Oakland,
California, plant.
Complainant Union herein has been a recognized em-
ployee representative, and has maintained contractual rela-
tions with American Burial Casket, for some 25 years.
Their successive contracts, so the testimonial record shows,
have routinely covered workers who would be considered
supervisors within the meaning of the National Labor Re-
lations Act.
Archie Bayless, Complainant Union's current business
representative, had previously worked for American Burial
Casket for some 12 years; he had been a casket trimmer.
While so employed, he had likewise functioned as Com-
plainant Union's shop steward and president. When this
CENTRAL CASKET CO. 367
case was heard, however, Bayless was no longer in Ameri-
can Burial Casket's hire. He had been designated Com-
plainant Union's full-time business representative, and had
held that position for some 19 months.
When Respondent's Fresno plant was ready to com-
mence productive operations, several American Burial
Casket workers had been transferred to Respondent's pay-
roll; most of these had been given supervisory positions.
Jose Gonzalez, Sr., designated Jose herein, had been
named Respondent's Fresno plant manager. (Jose had, by
then, worked for American Burial Casket some 8 years; his
precise position, however, has not been specified. During
this period, he had, so the record shows, maintained union
membership; that record, further, reflects his maintenance
of friendly personal relations with Bayless, who had then
been serving as Complainant Union's president.) Likewise
transferred were Guadelupe "Lupe" Curiel, and Marshall
Ostlund . Pursuant to Jose's suggestion , his wife, Maria
Gonzalez, had likewise been hired for prospective "sewing
room" work within the Fresno plant.
Maria had never previously done "commercial" sewing
work; she had, therefore, been given a 6-week training
course, within American Burial Casket's Oakland plant,
with respect to various sewing tasks which she would be
required to perform. She had reported for work several
weeks after Fresno plant operations began. Her son, Jose
Gonzalez, Jr., designated "Pepe" herein, had likewise been
hired for regular production work.
In Fresno, Respondent's plant had been divided into
four functional sections-the metal department, mill de-
partment, trim department, and sewing room, respectively.
Cunel had been designated assistant plant manager in
charge of Respondent's metal department; Ostlund, with a
similar title, had been given supervisory responsibility for
the firm's mill (wooden casket) department. The trim
department's top supervisor, when operations began, can-
not be determined from the present record; the record does
show, however, that Kathleen Rodriguez, hired several
months later, had shortly thereafter been designated the
department's supervisor. Maria Gonzalez, when she finally
reported on August 28, 1973, for Fresno work-some 4
weeks after Respondent's plant operations began-had
been placed "in charge" in the firm's sewing room.
By May 1974, when the developments with which we are
concerned began, Respondent's Fresno plant was in full
production, with a total crew complement-exclusive of
conceded supervisors-which numbered some 35 workers.
3. Chronology
a. Complainant Union's campaign
Sometime in May, Respondent's plant manager had
been told by employee Francisco Lara that two fellow
workers-Alex Gonzales and his sister, Rachel Borunda-
had been discussing union representation with various
Fresno and Los Angeles union spokesmen. Thereafter,
probably on May 22, Jose arranged a telephone message
for Bayless. When he responded, Complainant Union's
business representative was told by Respondent's plant
manager substantially that Respondent's Fresno workers
"needed someone to help them" collectively . Bayless was
asked whether he could meet with Respondent's employ-
ees. Subsequently , Complainant Union 's business represen-
tative visited Fresno on May 30. Jose's wife, Maria Gonza-
lez, together with their son, Pepe, had completed
arrangements for a late afternoon get-together at a Fresno
public park.
Bayless described the benefits which Respondent's
workers might derive from union representation. His re-
marks were translated and repeated in Spanish for those
who could not understand English. Some 20 workers there-
upon signed union designation cards. (Further details with
respect to this meeting , the substance of Bayless ' speech
remarks, Pepe 's role as his speech 's translator , and Maria
Gonzalez' participation, will be detailed subsequently with-
in this Decision.)
On May 31, Francisco Lara, Pepe, and Maria Gonzalez
solicited further designation cards within Respondent's
plant from workers who had not been present during the
park meeting ; eight more signed designation cards were
procured thereby. These were subsequently forwarded to
Complainant Union's business representative.
b. Respondent's reaction
Sometime during June's first full calendar week, Bayless
visited Bill Thompson at American Burial Casket's Oak-
land plant. He reported that Complainant Union had been
designated by a majority of Respondent's Fresno workers,
and requested recognition as their representative. Thomp-
son declared, however, that he lacked the requisite authori-
ty to make any decision with regard to recognition; he
directed Bayless to Jeanette Lopez, Respondent's corpo-
rate secretary. (Thompson, though currently a 50-percent
shareholder with Respondent herein, then held no "offi-
cial" corporate position. He characterized his relationship
with Respondent's management as merely "advisory."
Subsequently, on June 13, he was formally designated
Respondent's president.)
On June 5, following Lopez' rejection of his recognition
request, Complainant Union's representative filed a Board
petition for certification docketed as Case 20-RC-12113;
he sought a representation vote, thereby, for Respondent's
Fresno plant workers. The following day, Thompson vis-
ited Fresno; Respondent's principal supervisory person-
nel-Jose Gonzalez, Sr., Curiel, and Ostlund-were quer-
ied, inter aka, with respect to whether there was plant
"activity" seeking union representation. They reported,
however, that no union campaign was currently in prog-
ress.
On Friday, June 14, Thompson, who had just been des-
ignated Respondent's president, visited Fresno again. Jose
Gonzalez, Sr., Curiel, Ostlund, and Valerie Massengale,
then Respondent's office secretary, were collectively told
that Complainant Union had filed a representation peti-
tion; they were again queried regarding their knowledge of
union activity within the plant All denied knowledge,
however, with regard to Complainant Union's campaign.
During his Fresno visit, further, Respondent's president
directed Plant Manager Jose Gonzalez, Sr., to promote six
designated workers to so-called "supervisor" positions,
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with concomitant pay raises. (Effective Monday, June 17,
when Respondent's next pay period began, these workers
received raises; they were thereafter paid $3 .40 per hour.
So far as the record shows, their duties and responsibilities
with respect to production were not changed. They were,
however given additional responsibility for the training of
newly hired workers.) Concurrently, Kathleen Rodriguez,
previously a designated supervisor within Respondent's
trim department, was named the firm's third assistant plant
manager; she was transferred forthwith from Respondent's
hourly payroll, since she would thereafter be receiving a
$160 weekly salary.
c. The first discharges
On Wednesday, June 19, when Respondent's president
next visited Fresno, four mill department workers were
summoned to successive conferences within the plant of-
fice. Thompson, Respondent's plant manager, Mill Depart-
ment Manager Ostlund, and Massengale were there. Alex
Gonzales and Elsie Ledger were separately reprimanded
for their purportedly poor production records. Anastacio
Gomez and Margarito Ceniceros were terminated. (A sum-
mary list derived from Respondent's payroll records,
which counsel proffered for the record herein pursuant to
stipulation, shows Monday, June 17, as Ceniceros' termi-
nation date. The testimonial record, however, clearly re-
veals that he was notified of his dismissal on June 19; I so
find.)
The record further warrants a determination that all four
workers had previously signed Complainant Union's desig-
nation cards. Alex Gonzales, nevertheless, was the sole
worker summoned whose union sympathies or prounion
conversations were discussed. Certain comments in this
connection, purportedly chargeable to Respondent's presi-
dent, will be subsequently considered.
Complainant Union's first charge with respect to this
case was filed on June 20. Respondent was charged with
8(a)(1) and (3) discrimination, bottomed upon the termina-
tion of Anastacio Gomez and the purported dismissal of
two other workers, not named.
On Friday, June 21, when Alex Gonzales and Elsie
Ledger visited Respondent's plant to collect their pay-
checks, both were taxed with absences from work since
their separate Wednesday, June 19, conferences with
Respondent's president. Replying, each contended, sepa-
rately, that his or her failure to report for work had been
due to illness. Ledger's proffered excuse was acknowl-
edged; she had previously reported sickness. Gonzales,
however, was reminded that he had not previously report-
ed.
Later that day, in a letter which Respondent's president
signed, Gonzales was admonished that "company rules"
required workers to notify their supervisors when absent,
but that he had failed to provide such notice. Further, he
was reminded that he had been "warned in the past" re-
garding company work rule violations; President Thomp-
son declared that his firm would not tolerate "any more
violations of company work rules or policy" thereafter.
Gonzales did not report for work during the calendar week
which followed. (General Counsel, conceding that the mill
department worker's failure to report was voluntary, con-
tends that Respondent's course of conduct, so far as he was
concerned, should be considered a constructive discharge.
The merits of this contention will be considered subse-
quently within this Decision.)
On Monday, July 1, Respondent sent Gonzales a second
letter-signed by Plant Manager Jose Gonzalez, Sr. (no
relation), pursuant to President Thompson's direction-
wherein he was notified that, because of his continued "ab-
sence without permission" between Monday, June 24, and
the letter's date, he was being terminated forthwith.
d. Representation case developments
Meanwhile, on Thursday, June 27, a hearing with re-
spect to Complainant Union's representation petition had
been conducted in San Francisco. Business Representative
Bayless had formally noted his appearance in Complainant
Union's behalf; however, his organization's counsel of rec-
ord, Robert LeProhn, had not been present. Respondent's
president, Bill Thompson, had been the sole witness. And
Complainant Union's representative had left San Francis-
co bound for Fresno directly following the hearing's con-
clusion.
A second union meeting had been scheduled in a Fresno
restaurant. However, the meeting's location had been
somewhat hastily changed to the residence of Re-
spondent's plant manager, Maria Gonzalez, and their son
Pepe.
Bayless had met with a group of Respondent's workers
gathered in the Gonzalez' backyard; he had reiterated his
May 30 remarks, and had answered various questions.
Save for a brief, postdiscussion "social" contact with those
present, Respondent's plant manager had, however, re-
mained inside, conversing with Assistant Plant Manager
Curiel, who had dropped by for a visit. He had not spoken
with any worker regarding Complainant Union 's represen-
tation campaign . During Bayless' visit , one more Fresno
plant worker, Pedro Banuelos DeLeon, had signed Com-
plainant Union's designation card.
Sometime on Monday, July 1, presumably after the
plant manager's termination letter directed to Alex Gon-
zales had been dispatched, Thompson was notified by
Respondent's newly designated assistant plant manager,
Rodriguez, that Plant Manager Jose Gonzalez, Sr., togeth-
er with his wife Maria, had provided the original stimulus
for Complainant Union's representation campaign.
e. Further discharges
On Thursday, July 4, while Respondent's plant was open
for production (so that the firm's workers could thereafter
be given a substituted Friday holiday, with a consequent
3-day weekend) the firm's president, mindful of Kathy Ro-
driguez' report, previously noted, discharged Plant Manag-
er Jose Gonzalez, Sr.; with respect to his motivation and
statements, Thompson testified:
In talking to him, I explained to him that, as a supervi-
sor, he was being fired for prejudicial and detrimental
conduct to this firm.
CENTRAL CASKET CO. 369
Jose, while a witness herein, was not questioned regarding
his termination; the president's testimony with respect
thereto stands in the record without dispute. Directly there-
after, Maria Gonzalez was summoned to President
Thompson's office, and likewise terminated, with a simi-
larly stated reason.
On Monday, July 8, with work in Respondent's sewing
room somewhat slack, Margaret Huerta and Norma
Flores, the firm's most recently hired sewing room workers,
were transferred to Respondent's trim department. They
worked there for 2 days. On Wednesday, July 10, however,
Respondent's president summoned a management confer-
ence during which the firm's high level inventory stock of
completed caskets, Respondent's seasonally reduced vol-
ume of new orders, and the firm's presumptively conse-
quent need to reduce its labor force, were considered. De-
cisions with respect to a layoff were made; consistent
therewith, four workers were designated for "lack of work"
terminations. Huerta and Flores, who were-despite their
recent transfers-still considered Respondent's sewing
room workers with least seniority, were notified of their
terminations. When Flores thereupon queried Re-
spondent's president with regard to her possible recall,
she was told that Huerta and she would be recalled before
any new plant workers were hired.
Concurrently, one mill department worker, Tomas Per-
ez, together with a single trim department employee, Emi-
lio Briseno, were similarly terminated. Perez and Briseno
were, like Huerta and Flores, the workers with least senior-
ity within their respective Fresno plant departments.
f. Further representation case developments
Meanwhile, on Monday, July 8, Respondent's counsel
had filed a motion with the Board's Regional Director re-
questing a dismissal with regard to Complainant Union's
representation petition. Counsel's motion, so the record
shows, derived from his contention-bottomed upon two
affidavits which had been procured from plant workers-
that certain designated supervisors had participated in pro-
curing the signatures of those employees whose designation
cards had been previously submitted to provide Complain-
ant Union's purported "showing of interest" required to
support its petition. This motion was taken under submis-
sion.
While Complainant Union's representation petition and
Respondent's motion were being considered, certain fur-
ther developments transpired. On July 16, Huerta filed an
8(a)(3) charge with the Board's Fresno subregional office;
thereafter, on July 19, so the record shows, she likewise
filed a state complaint, specifically charging Central Casket
with employment discrimination violative of California's
Fair Employment Practice Act, with the State's Depart-
ment of Industrial Relations. That complaint (which can
be found within the present record) derived from her July
10 layoff, purportedly for lack of work, following which
Central Casket had-so Huerta charged-hired "Anglo-
Caucasian" workers, presumably as replacements. On July
23, Flores filed a similar State FEP charge. Meanwhile,
sometime during this period, Respondent's president had,
pursuant to employee Francisco Lara's request, given him
a letter, presumably directed to some American consul
serving in Mexico, which he planned to submit during a
visit to his natal country. The letter cited Lara's period of
service in Respondent's hire; likewise, it further declared
that he was expected to continue in Respondent's employ
following his return. Lara's Mexican visit, so he declared,
was being made primarily to arrange for his "green card"
renewal; that card's renewal would permit his return to this
country with legal "resident alien" status.
On Friday, August 2, the Acting Regional Director is-
sued her decision with respect to Complainant Union's
representation petition. Respondent's July 8 motion re-
questing the petition's dismissal was therein denied; a rep-
resentation election was directed. The eligible voters were
to be Respondent's workers, within a defined bargaining
unit, employed during the last company pay period com-
pleted prior to the decision's issuance date. The present
record warrants a determination that Respondent's em-
ployees declared eligible thereby were those listed as work-
ing during the firm's July 22-28 payroll period.
On Friday, August 9, Respondent's counsel filed with
the Board his request for review of the Acting Regional
Director's Decision and Direction; therein counsel sought
Board reconsideration particularly with respect to the va-
lidity of Complainant Union's designation card showing;
he contended that his motion to dismiss previously filed-
bottomed on his claim that supervisory personnel had par-
ticipated in procuring the signatures of workers whose
cards had thereafter been submitted to establish Complain-
ant Union's representational claim-should have been
granted.
On August 23, 2 weeks later, the Board granted
Respondent's request for review. A telegraphic order was
dispatched; therein, the Acting Regional Director's Deci-
sion and Direction of election were remanded, so that she
could consider Respondent's proffered "supervisory taint"
charges. Earlier that day, however, Regional Office person-
nel had already conducted the representation vote which
the Acting Regional Director had previously directed.
(When that vote was conducted, Respondent's prepared
eligibility list showed 16 eligible voters, of these, 8 voted
favorably with respect to union representation; 7 votes
were cast against such representation. There were no chal-
lenged ballots.) Also on August 23 Respondent's president
sent Margaret Huerta a letter. She was notified that, be-
cause production was being increased, the firm was rehir-
ing workers previously laid off in the order of their senior-
ity. Huerta was requested to report for work on Monday,
August 26.
g. Further discharges
On Monday, August 26, Complainant Union filed a sec-
ond charge herein. Anastacio Gomez, Maria Gonzalez,
Alex Gonzales, Margaret Huerta, and Norma Flores were
designated therein as victims of statutorily proscribed dis-
crimination.
The following day, however, pursuant to Respondent's
previously dispatched recall notice, Huerta reported to be-
gin work. She was reassigned to Respondent' s sewing
room; there she resumed her regular "seamstress" work
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to direction from Rachel Borunda, Maria Gonza-
lez' designated replacement.
On Wednesday, Francisco Lara, then preparing for his
Mexican vacation trip (during which he was planning to
renew his "green card" permit, certifying his right to enter
this country legally) was verbally reprimanded by
Respondent's president. Thompson, so Lara testified, de-
clared himself distressed because, while attempting to col-
lect his vacation paycheck, he (Lara) had presumably "by-
passed" his immediate departmental supervisor. Further,
so Lara testified, Respondent's president questioned his
(Lara's) recent failures to meet their firm's claimed produc-
tion standard for workers holding purportedly "superviso-
ry" training positions. He recalled that he was told should
he fail to meet Respondent's declared standard following
his return his wage rate would be reduced. Lara, disturbed
by these reprimands, left Respondent's plant; he did not
work the rest of that week. On August 30 Lara left for his
Mexican trip. Though he subsequently returned, he never
reported back for work in Respondent's plant. (With mat-
ters in this posture, General Counsel contends that Lara
was constructively discharged. When President Thompson
notified the metal department worker that he would be
required to satisfy a too stringent production standard, he
could, so General Counsel suggests, properly deduce-with
due regard for the complete circumstantial context within
which his final conversation with Respondent's president
had taken place-that he was being marked for a subse-
quent discharge.) Sometime that same day, Rachel Borun-
da notified Huerta that she was being dismissed, following
3 days back at work, purportedly for poor production.
Huerta has not worked for Respondent since her August
30 termination. (With respect to Huerta, General Counsel
contends, presently, that Respondent's proffered rationale
for her second termination should be considered pretex-
tual. This contention will be considered subsequently with-
in this Decision.)
Sometime during early September, President Thompson
sent Flores a recall letter, similar to that which Huerta had
received, proffering work with a September 10 proposed
resumption date. Flores, however, never reported to re-
claim her position.
h. Procedural developments
Meanwhile, on August 29, Respondent's counsel had
drafted a set of objections to the election, contending, inter
alia, that the Regional Office's August 23 morning repre-
sentation vote should be considered "null and void" since
the Board had, later that very day, granted Respondent's
request for review of the Acting Regional Director's Deci-
sion and Direction of Election. These objections, which
may have been filed with the Board's Regional Director on
the date when they were prepared, were served on Com-
plainant Union's business representative by mail the fol-
lowing day. On August 30, however, the Board's Regional
Director by telegraph order had declared the August 23
election a nullity, because it had been conducted while
Respondent's request for Board review of the Acting Re-
gional Director's decision was pending, which review re-
quest had subsequently been granted.
On October 2, General Counsel's original complaint
herein whereby Respondent was charged with 8(a)(1) and
(3) violations was filed. On October 15, however, Respon-
dent filed a motion with respect to Complainant Union's
still pending representation case. The Board was requested
to direct the Regional Director's compliance with its prior
mandate: ". . . to investigate the Petitioner's showing of
interest based upon the Employer's motion to dismiss the
petition on the grounds of supervisory taint."
More particularly, Respondent requested a Board direc-
tion that the Regional Director should not solicit a
withdrawal of Complainant Union's petition; that he
should forthwith investigate Complainant Union's designa-
tion card showing; and that he should dismiss the pending
petition because the "supervisory taint" which affected
those cards merits characterization as sufficient to void
them. This motion, however, was subsequently denied for
lack of merit.
On October 25, Complainant Union's representation pe-
tition in Case 20-RC-12113 was withdrawn without preju-
dice. Shortly thereafter, on November 6, Complainant
Union's second amended charge herein was filed; Francis-
co Lara was designated a discriminatory dischargee there-
in. Concurrently, General Counsel issued his amended
complaint; therein, Respondent was charged with several
8(a)(1) violations of law, plus six instances of 8(a)(3) dis-
crimination. A remedial bargaining order was further re-
quested.
i. The final discharge
Sometime during late October 1974 or November's first
full week, Irma Lara, Francisco's wife (who, since Septem-
ber 1973 had been a seamstress in Respondent's hire), de-
termined that, for reasons never clearly detailed in the pre-
sent record, she would be required to revisit her Mexican
home community.
The precise purpose which motivated her determination
cannot be deduced from the present record; for present
purposes, however, no finding with respect to her trip's
purpose seems required.
Since Lara had, however, previously taken her paid va-
cation following the completion of her first year's service
she knew that management's permission, with respect to
her projected week's leave of absence, would be required.
And Mrs. Lara's testimony, taken at face value, would war-
rant a determination that she promptly sought such per-
mission-first, from Rachel Borunda, who was then
Respondent's sewing room supervisor, and secondly from
"Lupe" Curiel, Respondent's plant manager. Whether the
record preponderantly supports a determination that she
really did seek or receive permission to leave work for a
week will be considered subsequently. (When Mrs. Lara
testified with respect to whatever steps she took, for this
consolidated case's reopened record, Borunda was no lon-
ger in Respondent's employ; no one summoned her for
testimonial purposes. And Curiel's testimony with respect
to Lara's claim that she sought and received permission
lacks clarity and reflects certain contradictions. The prof-
fered recollections of both Lara and Curiel will be weighed
hereinafter.)
CENTRAL CASKET CO. 371
Following her shift's completion on Friday, November
8, Mrs. Lara left Fresno, on her Mexican trip. She believed
then that her trip's purpose could be consummated within
a week ; consistently with this belief she was planning a
November 18 return to work.
However, during her week's absence, on Wednesday,
November 12, Respondent dispatched a letter to Lara by
certified mail; she was told therein that if she failed to
provide Respondent's plant manager, before 9 o'clock on
the morning of Friday, November 15, with a sufficient
"medical" reason for her absence from work, she would be
terminated. Mrs. Lara did not receive this letter before No-
vember 15; she was still on her Mexican trip. (The circum-
stances which surrounded the preparation and dispatch of
Respondent's November 12 letter-with particular refer-
ence to whatever roles President Thompson and Plant
Manager Curiel, respectively, may have played in connec-
tion therewith-will be discussed supra.)
Lara could not return from Mexico before Monday, No-
vember 18. When she reported for work on Tuesday, No-
vember 19, she noticed that her timecard had been re-
moved from Respondent's rack. The firm's sewing room
supervisor, Rachel Borunda, professed a lack of knowledge
when queried with regard to this development. However,
Valerie Massengale, Respondent's plant secretary, told
Mrs. Lara that she had been terminated. When Lara re-
quested a statement with respect to Respondent's reason,
she was referred to Curiel, the firm's plant manager.
Later that day, Mrs. Lara did query Respondent's plant
manager outside the Fresno courtroom within which this
case was then being heard. First she requested the reason
for her termination; then, without waiting for a reply, she
asked whether Curiel had previously received a report from
her fellow worker, Pedro Banuelos, whom she had request-
ed to notify Respondent's management that she would be
unable to report on Monday, November 18, but would re-
turn for work the following day. Confronted with Curiel's
denial that Banuelos had, pursuant to her request, relayed
such a communications, Lara did not pursue their conver-
sation further.
j. Subsequent procedural developments
Two months later, on January 16, 1975, Mrs. Lara filed
her charge (Case 20-CA-9867) previously noted. The
procedural developments which followed and led to the
consolidation of Mrs. Lara's discharge complaint with
General Counsel's previously presented case have been de-
tailed.
The record herein, which may now be considered com-
plete , warrants a determination that none of Respondent's
terminated workers whose separations are presently in
question have worked since their respective terminations
within Respondent's Fresno plant.
4. Complainant Union's campaign and Respondent's
reaction
I have thus far provided a general "overview" with re-
spect to Complainant Union's campaign and Respondent's
reaction. Now, these developments must be considered in
further detail.
During their May 22 telephone conversation, previously
noted, Respondent's plant manager had notified Business
Representative Bayless that Respondent's workers were
considering union representation; he had suggested that a
meeting be set up, during which Bayless could detail the
possible advantages which Respondent's workers might de-
rive from Complainant Union's designation. Bayless had
concurred, volunteering that he could visit Fresno on May
30. Thereafter, Jose's wife Maria and their son Pepe had
planned the meeting in Roeding Park, one of Fresno's pub-
lic parks, sometime after work on the date designated. Pepe
and Francisco Lara, together with Maria Gonzalez, had
notified Respondent's workers by word of mouth with re-
spect to the meeting's time and place.
Bayless reached Fresno on May 30, sometime during the
afternoon; he proceeded directly to Jose's home, where he
spoke briefly with both Respondent's plant manager and
his wife. Pepe, together with a friend, was likewise present.
(Complainant Union's business representative testified,
credibly, that Respondent's plant manager was told his po-
sition might be jeopardized should his personal interest
with respect to union representation for the firm's Fresno
workers become known; Bayless therefore directed Jose to
"stay out" of Complainant Union's campaign. Thereafter,
the business representative left for the scheduled Roeding
Park meeting, accompanied by Maria; Pepe and his friend
likewise made the trip, with a second car.)
The park meeting, which convened at 6 o'clock, lasted a
half hour; some 21 plant workers were present. They had
gathered a relatively compact circle around Complainant
Union's business representative while he detailed
unionization's possible benefits. Since many of those pres-
ent could not comprehend English well, Pepe translated
Bayless' remarks into Spanish for the group. (Maria Gon-
zalez had previously introduced Bayless. The record, con-
sidered in totality, will not warrant a determination that
she subsequently translated his remarks. She may, howev-
er, have proffered periodic comments with respect to their
substance, speaking directly to those in her immediate vi-
cinity; I consider it highly likely that she did.)
Following a considerable discussion between Re-
spondent's workers and Complainant Union's business
representative, with regard to wages and certain other ben-
efits which Complainant Union would seek to procure for
the firm's employees, Bayless produced a supply of blank
union designation cards from his briefcase. He then read
the card language aloud, speaking English; Pepe repeated
his recapitulation in Spanish translation; Bayless told the
workers he would, on their behalf, request Respondent to
bargain after they had signed union designation cards; and
he would, if Respondent declined to recognize Complain-
ant Union herein, seek a Board representation vote.
With regard to Bayless' remarks concerning Complain-
ant Union's initiation fee, the record reflects a testimonial
conflict. The business representative's composite testimony
during cross-examination, with respect thereto, slightly
modified merely to promote clarity, reads as follows:
[With regard to fees, I said] on the normal of negoti-
ating or organizing the plant, when the plant was fi-
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nally settled, we took all the members in on a low
admission fee into the union . . . I never said [there
would be a low admission fee if they joined before the
plant went union] but what you are trying to [ask] is
did I say to the people that were there at the
meeting, if they signed the cards would I give them a
reduced rate? No I did not.
Q. Did you tell the employees that the initiating fee
was between fifty and one hundred dollars?
A. Yes, I did.
Q. What sort of rate did you mention to them . . .
if they signed the cards right then and there?
A. I did not mention no fee. I said when and if the
Union bargained for them, we had the contract, and
we took them into the Union, we would take them in
as a group, at a low admission fee, in the whole
group-not at this particular time, not when they
signed the cards. There is no way I would say some-
thing like that.
Q. Were you talking about those who became char-
ter members would have a reduced initiating fee?
A. If you mean charter members, when we had the
contract ready to service and administer the contract,
yes. They would come under a lower initiating fee, but
this is after you had all that done. Not a specified
group of people that had signed cards before .. .
Q. Did you mention any amount of . . . initiating
dues at all?
A. Did I mention, I might have. I don't-to be per-
fectly frank with you I don't remember, but I do re-
member telling them that when we organize a place,
when the contract was ready and the people are ready
to go to work for the Union, under a Union contract,
then we blanket them all in under a lower initiating fee
... everyone that is working at the plant at that time.
Francisco Lara, testifying through an interpreter and
presumably proffering recollections bottomed upon Pepe's
Spanish translation of Bayless' remarks, declared Re-
spondent's workers were told, "that if [they] were a ma-
jority . . . [they] would not have to pay anything; that
whoever came in afterwards would have to pay." However,
Lara could not recall references to specific sums in either
case.
When summoned as Respondent's witness, Assistant
Plant Manager Kathleen Rodriguez testified in English,
with respect to Bayless' remarks. She had been present dur-
ing the May 30 Roeding Park meeting; Rodriguez had then
been a so-called "supervisor" within Respondent's trim de-
partment previously noted. She recalled that-
He [Bayless] told us that the initiation fee would be
$17.00 before the union came in. Anybody who came
in after the union would have to pay $50.00 to $100.00
.. . [We] had asked how much the initiation fee
would be. Mr. Bayless says he was going to give us a
discount. He said we would have to pay $17.00 before
the union got in. Anyone who came in after the union
was in, would have to pay $50.00 to $100.00 . . . he
told us that the initiation fee would be $17.00 for any
employee who joined before the union got in . . . he
said that any employee who joined after the union got
in, would pay . . . [an] . . . initiation fee between
$100.00 and $50.00
When queried further with respect to Bayless' remarks
Rodriguez qualified her testimony somewhat; she declared
that she had "understood" the firm's current workers
would be required to pay a $17 initiation fee to become
union members, but that, "if a new employee comes into
the factory . . . anytime after the Union was in" his initia-
tion fee would be higher. Rodriguez then declared, categor-
ically, that this was "all" the business representative said.
However, despite her positive recollection that his remarks
had been limited, the Assistant Plant Manager purportedly
recalled that Bayless had stated or suggested that,
... [He] was going to give us-gee, how could I put
it-a discount, really . . . the ones that are working
there right now, at that time . In other words, he was
going to give us all a discount because we were the
ones who were going to start it .. .
JUDGE MILLER: What did you understand him to be
saying as to when the discount would be over? What
condition, what changing circumstances would elimi-
nate the possibility of a discount?
THE WimasS: After the vote was taken place. In
other words, how they vote for it-for the union. In
other words, when he says, when we sign these cards,
it was a authorization card, to try and get a vote. He
says that, if-it was-if everybody passed it and they
signed "Yes," okay, the union would be in. In other
words, anybody who didn't sign these yellow cards,
would have to pay the full amount of $50.00 to
$100.00... that's the way he put it . . . That, if we
signed these yellow cards and somebody new comes
in, and they don't have one signed, well, they have to
pay the full amount.
Considered in totality, Rodriguez' testimony thus recapi-
tulated reflects deviations from the prehearing statement
which she had given Respondent's counsel. Further, her
testimony reveals a certain degree of confusion or lack of
certainty with respect to what Business Representative
Bayless really said regarding "discounted" membership ini-
tiation fees. The record, in my view, warrants no determi-
nations consistent with any portion of Rodriguez' purport-
ed testimonial recollections. Specifically, I find, despite the
assistant plant manager's final suggestion, that Bayless did
not promise Respondent's workers reduced membership in-
itiation fees solely for those who would sign designation
cards before Complainant Union finally won representa-
tive status. The business representative's contrary testimo-
ny previously set forth herein merits credence.
Following Bayless' talk, Complainant Union's designa-
tion cards were distributed among those present. Before
the meeting concluded, 20 workers had signed cards. (Ma-
ria Gonzalez, so the record shows, signed two cards; on
one, she designated her position as "Sewing Room Fore-
women" [sic] while the second merely described her work
as making "head panels" for caskets )
While at Respondent's plant the following day, Pepe and
Francisco Lara obtained signed designation cards from
four workers who had not attended the park meeting; Ma-
CENTRAL CASKET CO. 373
na Gonzalez solicited and received three more signed
cards. Norma Flores, a sewing room cutter, signed one in
Gonzalez' presence; the others were signed, likewise in her
presence, by two trim department workers. By June 5, two
more workers-Emilio Briseno and Elsie Ledger-had
likewise signed designation cards; Bnseno was a newly
hired trim department worker who had commenced work
the previous day.
On May 31, so Respondent's payroll record shows, the
firm had 35 regular rank-and-file production workers, with
Maria Gonzalez counted; by June 5th, when Complainant
Union's petition was filed, there were 36, following
Briseno's hire.
Sometime during June 's first full calendar week , Bayless
had called on Thompson, presumably at American Burial
Casket's Oakland plant. There he had reported, correctly,
that Complainant Union had been designated by a majon-
ty of Respondent's Fresno plant workers and had request-
ed recognition as their representative. The record warrants
a determination that Bayless had been referred to Jeanette
Lopez, Respondent's corporate secretary. (Neither Bayless
nor Thompson could, testimonially, fix their meeting's
date. Complainant Union's representation petition, [Case
20-RC-12113] subsequently filed, however, reflects Bay-
less' sworn declaration therein that his request for recogni-
tion had been proffered and declined on Monday, June 3;
that declaration stands herein without challenge. Consis-
tently therewith, I find that Thompson, certainly, and Lo-
pez, possibly, were visited on that date.)
While a witness herein, Thompson declared that he had
not "believed" Bayless' designation card claims, and that
Complainant Union's business representative had been so
advised. Nevertheless, when he subsequently visited
Respondent's Fresno plant on Thursday, June 6, Thomp-
son queried Respondent's principal supervisory person-
nel-Jose Gonzalez, Sr., Curiel, and Ostlund-with respect
to whether the firm's workers were participating in pro-
union activities; Thompson was told that no union cam-
paign was then in progress.
The record, nevertheless, provides considerable support
for a determination that Thompson had, by this time, re-
ceived information sufficient to put him on notice that
some of Respondent's Fresno workers were indeed consid-
ering unionization. Earlier that week, as noted, Bayless had
visited him and requested Complainant Union's recogni-
tion. On Wednesday, June 5, Complainant Union's repre-
sentation petition had been filed; the Regional Office's no-
tice, with respect thereto, directed to the firm's Fresno
address, would-normally-have been dispatched prompt-
ly. It could, conceivably, have reached Respondent's Fres-
no plant by Thursday, June 6, while Thompson was pres-
ent, or by the following day. Thus, by week's end,
Respondent's principal stockholder, though he may not
have been disposed to credit Complainant Union's majon-
ty representation claims, could hardly have lacked knowl-
edge, or reason to believe, that some of Respondent's Fres-
no plant workers, at least, had manifested an interest with
respect to Unionization. This much he would reasonably
have known, or could have deduced.
Certainly, by Friday, June 14, when Respondent's prin-
cipal stockholder-who had just been designated the firm's
president-next visited Fresno, he concededly knew that
Complainant Union's petition had been filed, and could
rationally conclude, consequently, that a previously report-
ed union campaign had presumably made some progress.
Jose Gonzalez, Sr., Curiel, Ostland, and Valerie Massen-
gale were told about Complainant Union's petition; that
organization's campaign was discussed . (Thompson's
claim , while a witness , that his several supervisors and sec-
retary collectively disclaimed knowledge with respect to
Complainant Union's presumptive "presence" within their
plant, strains credulity. See N.L.R.B. v. Walton Manufac-
turing Company, supra. However, if they did concurrently
proffer such disclaimers, Respondent's newly designated
president could only have concluded, reasonably, that they
were singularly lacking in perception, or that they were
withholding, from him, relevant knowledge which they
probably possessed.)
With matters in this posture then, Thompson directed
Jose to grant raises and nominal promotions for six work-
ers. Francisco Lara in Respondent's metal department,
and mill department workers Gary Crawley and Dewey
Sherwood, together with trim department workers Jenny
Delgadillo, Betty Lulan, and Kenneth Rodobough, were to
receive $3.40 per hour, commencing Monday, June 17,
when Respondent's next pay period would begin. Refer-
ence has been made to their concurrent designation as
foremen or supervisors with responsibility for training new-
ly hired workers.
Likewise on this date, Kathleen Rodriguez, previously a
designated supervisor with comparable responsibilities
within Respondent's trim department, was named the
firm's third assistant plant manager ; she was transferred
effective Monday, June 17, from Respondent's hourly pay-
roll, since she would be receiving a salary of $160 weekly
thereafter. Concurrently, so the record shows, President
Thompson directed a 25-cent-per-hour raise for Kirk Ha-
gopian, a rank-and-file mill department worker; his rea-
sons for this last raise have not been reported.
Maria Gonzalez, then designated as Respondent's sew-
ing room manager, likewise received a raise. Effective June
17 she was to be paid $3 60 per hour; this made her the
highest paid hourly rated worker in Respondent's plant.
While a witness, Respondent 's then plant manager testi-
fied that President Thompson had, during this June 14 dis-
cussion, declared his desire to make "supervisors" of some
Fresno plant workers, so that they would then be disquali-
fied from casting ballots during a possible representation
vote. Apart from Jose's presently proffered recollection,
the record herein shows that during the June 27 hearing
subsequently held on Complainant Union's petition the
firm's president did, indeed, contend that this Board
should consider the Fresno plant's various departmental
"foremen" statutory supervisors. Mindful of this, I credit
Jose's testimony, thus corroborated, that President Thomp-
son did, during their June 14 conference, declare his pur-
pose to grant the workers previously mentioned raises and
purported promotions, for the purpose of compassing their
consequent exclusion from a conceivable "bargaining unit"
group.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The discharges
Respondent's newly designated president next visited
Fresno on Wednesday, June 19; there he conferred once
more with Jose, Curiel, and Ostlund, while Massengale was
present. Inter aka, they discussed the purportedly poor pro-
duction record of Respondent's mill department personnel.
The daily production records of that department's workers
were reviewed.
Some two months previously, Respondent's manage-
ment had promulgated and posted notices with respect to a
so-called "point" system, whereby worker productivity
would thereafter be measured and rewarded. For the firm's
mill department, this production incentive system func-
tioned as follows: The various productive tasks which mill
department workers were required to perform were listed,
together with the total time-measured in minutes-within
which Respondent would require each task's completion;
the posted list, further, detailed, with respect to each pro-
ductive task, the number of times it could be performed
within an hour. Workers were directed to record the van-
ous tasks-both productive and nonproductive-which
they performed, on slips of plain "scratch" paper which
they were to submit daily to Assistant Plant Manager Ost-
lund, following the completion of their day's work. For
each task reported as completed, workers were to be cred-
ited with "points" calculated to match the total number of
minutes normally required for that particular task's com-
pletion, pursuant to Respondent's posted standard. Mill
Department Manager Ostlund or Secretary Massengale
were, therefore, required to compute the total daily
"points" or "minutes" which Respondent's workers had
earned. According to Thompson, Respondent's manage-
ment considered it mandatory for Fresno plant workers-
following a vaguely defined training period's completion-
to perform, daily, productive or nonproductive tasks which
carried at least 400 point or minute credits; they were told
that failure to meet this standard would result in their ter-
mination. Workers credited regularly with 480 points or
more, per 8-hour day, could, however, qualify for weekly
$10 bonus payments, supplementing their regular pay.
The firm's mill department manager complained that he
had been "warning" his subordinates, but that they had
been "standing around" talking, rather than working full
time ; whether Respondent's plant then had actually suffi-
cient work in progress to keep them all busy full time, satis-
fying specific customer orders or producing for stock, was
not discussed.
Following his review of various mill department produc-
tion records, Thompson determined that departmental
workers Anastacio Gomez and Marganto Ceniceros
should be terminated, and that Alex Gonzales and Elsie
Ledger should be reprimanded. These workers were there-
upon summoned separately to Respondent's plant office.
General Counsel's presentation raises no question with
respect to Respondent's treatment of Ledger and Cenice-
ros, particularly, though both had previously signed union
designation cards. Respondent's president told Ledger that
she had proved she was a good worker, who could earn 400
points daily, but that her productivity during the previous 3
or 4 days had slipped. The worker was told that it was "up
to [her]" to do better work. Ledger acknowledged this ad-
monition ; she was not terminated . Ceniceros had been
brought in previously. Ostlund had told him that he had
been working in Respondent's plant for quite a while; that
his point credits were, nevertheless, quite low; that he had
shown no signs of improvement; and that he was therefore
being terminated.
a. Anastacio Gomez
Anastacio Gomez had been hired on January 7; during
his 5 months of service he had received two raises . Before
his discharge, Gomez had never been warned or repri-
manded with regard to purportedly substandard work per-
formance . The record reflects merely his testimonial con-
cession that he had once been criticized for talking during
working hours. On that occasion , according to his testimo-
ny which I credit, Gomez had been discussing a work-relat-
ed question with a Spanish -speaking fellow worker who
could not communicate directly with Assistant Plant Man-
ager Ostlund. The latter, mistakenly believing that they
were engaged in idle conversation, had instructed Gomez
to resume work. (In June 1974 Respondent's complement
of nine mill department workers included four with Span-
ish surnames . By June 5 , the department 's four Spanish-
surnamed workers, including Gomez, together with three
of their five fellow workers, had signed Complainant
Union's designation cards.)
On June 19, however, Gomez was summoned to
Respondent's Fresno plant office. There, with President
Thompson present, Ostlund declared that his daily produc-
tion level had "recently slipped" below the 400 point stan-
dard which Respondent required. Because of this, Gomez
was told he was being terminated. Gomez protested that he
had not been given credit for all the work which he had
been doing, and that, though he, together with Alex Gon-
zales, had "worked the same jobs" concurrently, the latter
was always given more credit for work which they had
both performed. Gomez' daily production records for 10
days between June 5 and 18 were then reviewed; some
token adjustments were made with respect to his June II
tally. President Thompson declared, however, that Gomez
was being terminated, effective that very day. He left
Respondent's office.
Later , however, while Respondent 's management repre-
sentatives were conferring with Alex Gonzales , Gomez re-
turned and demanded his final check. When Respondent's
president declared that he would have it within 3 days,
Gomez protested that, since he had been discharged, he
could rightfully demand his final check forthwith. Presi-
dent Thompson told him that, if he felt he was being treat-
ed unfairly, he could file a Labor Board protest.
Respondent pleads a privileged justification for Gomez'
discharge solely because his productivity during the 2-week
period which directly preceded his termination had been
substandard. And Respondent's records do, indeed, pro-
vide some colorable support for this contention. His daily
production reports for the period in question do reveal that
he fell short of Respondent's minimally required 400 points
per day, on every day save one. (During 6 or 9 working
days, for which reports are presently available, Gomez'
CENTRAL CASKET CO. 375
submissions reflect tasks performed which were worth 344-
395 points; for 2 days, however, his record fell within the
237-250 point range. While a witness, Gomez contended
that his daily production reports had not accurately reflect-
ed the tasks which he was being required to perform. More
particularly, he testified that, pursuant to Ostlund's fre-
quent directives, he had regularly performed a variety of
time-consuming tasks which Respondent's previously post-
ed "point" list did not cover, and which he had not re-
corded within his daily production reports. Those reports,
however, detailed both productive and nonproductive
tasks which Gomez claimed to have performed throughout
9 full working days; they purport to cover complete 8-hour
daily periods. All nine reports, inter aka, reflect time spent
on various miscellaneous nonproductive tasks for which
Gomez did, indeed, receive proper "point" or "minute"
credit. General Counsel's contention that Gomez had
"failed to include" such tasks when preparing his daily pro-
duction reports, because he had been "confused over
whether such jobs as those were to be recorded" lacks rec-
ord support. With respect to Gomez' two significantly low
record days, his reports show some time spent on nonpro-
ductive work; however, they likewise show substandard
performance in connection with certain production tasks
for which Respondent's management had previously desig-
nated "point" values. On June 11, inter aha, Gomez had
reported productive work worth 207 points performed
within 450 minutes of his 8-hour, 480-minute, working day.
For June 14, he had reported productive work worth 110
.75 points, completed within 320 minutes. General Counsel
does suggest in his brief that Gomez' claimed "point cred-
it" productive tasks may have been completed within a
shorter time span than his reports set forth and that he had
"consistently failed to record [nonproductive work assign-
ments for which point values had not been specified within
Respondent's posted list] because he assumed he was to
record only those jobs" which the posted list specified.
However, the record, considered in totality, will not sup-
port such a determination. Gomez, I find, was neither con-
fused nor lacking in knowledge with regard to his right and
duty to record miscellaneous nonproductive tasks which he
performed. And his reports show, (1) that he did, consis-
tently, record his non-productive work, and (2) that he was
given "point" credit for such work, whenever reported.)
Nevertheless, Respondent's present contention, that Go-
mez' seeming record of repeated failures to satisfy the
firm's designated daily "point" or "minute" standard moti-
vated his termination, merits rejection as pretextual. His
work record could, conceivably, have generated legitimate
managerial concern; I am satisfied, however, that Presi-
dent Thompson's belief with respect to Gomez' participa-
tion in prounion conversations really constituted the basic
"moving cause" for his discharge; alternatively, the record
will, in any event, support a determination at the very least
that Gomez' suspected union sympathies contributed to
President Thompson's discharge decision.
These conclusions derive from a persuasive evidentiary
foundation. First: The present record warrants a determi-
nation that Respondent's president, despite his purported
concern with respect to plantwide production figures con-
fined his June 19 performance review to null department
workers; that department, however, contained no more
than 9 of Respondent's 37 workers then on payroll. No
rationale has been proffered for Thompson's failure to con-
duct a plantwide review. Comparable production records
for the firm's metal department, trim department, and sew-
ing room were not studied; certainly, no workers within
these other departments appear to have been censured,
warned, or terminated. Second: President Thompson con-
ducted his purported mill department performance review
less than 3 weeks before Respondent's July 10 layoffs for
lack of work, previously noted. His professed concern with
respect to substandard performance by particular workers,
thus, was being manifested during a period when specific
customer orders were, presumably, declining with the grad-
ual onset of Respondent's summer "slow" season, while a
major portion of Fresno's production was, therefore, being
stock piled. (During this period, Respondent's warehouse
stock pile of completed caskets was rising from a normal
150 to better than triple that number, which it reached
within 3 weeks.) And nothing within the present record
would warrant a determination that Respondent's wooden
casket production levels, during the two-week period which
preceded June 19, would really have permitted every one of
the firm's presumptively qualified mill department workers
to reach the firm's required 400 point productive standard.
Third: Gomez' testimony, that he had never been repri-
manded or warned before June 19 concerning his work
record, stands without contradiction. (Ostlund, who had
been his departmental supervisor, was present in the hear-
ing room when General Counsel's presentation com-
menced, and for some time thereafter. He was never re-
quested to testify in Respondent's behalf, however, with
respect to Gomez' purportedly deficient work perfor-
mance. Though no longer in Respondent's hire when this
case was heard, Ostlund could have been summoned for
testimony, both in this connection and with respect to cer-
tain relevant statements-noted hereinafter-properly
chargeable to him. Respondent made no claim, while its
defense was being presented, that Ostlund was not avail-
able, nor has any rationale for Respondent' s failure to
summon him been proffered.)
Further, Gomez, so his credible uncontradicted testimo-
ny shows, had received two separate raises within his 5-
month period of service. With due regard for Respondent's
patent willingness to grant Gomez raises, and
management's failure to warn him that his performance
record might be considered substandard, his abrupt dis-
charge, while Complainant Union's presently filed repre-
sentation petition was pending, persuasively suggests that
President Thompson's claimed justification for his dis-
charge should be considered pretextual. "The abruptness
of a discharge and its timing are persuasive evidence as to
motivation." See N.L.R.B. v. Montgomery Ward & Co.,
Inc., 242 F.2d 497, 502 (C.A. 2, 1957); N.L.R.B . v. James-
town Sterling Corp., 211 F.2d 725, 726 (C.A. 2); N.L.R.B. v.
Evans Packing Company, 463 F.2d 193, 195 (C.A. 6, 1972);
N.L.R.B. v. Stemun Manufacturing Company, Inc., 423 F.2d
737, 741-742 (C.A. 6, 1970), in this connection. Fourth.
During a prior shop conversation with Pepe (Jose Gonza-
lez, Jr.) on or about June 11, Ostlund had declared that,
"Alex [Gonzales presumably] and Gomez, they are solicit-
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the people-about the Union-talking about the
Union." The assistant plant manager had further declared
that, "[We] are going to fire them." These factual determi-
nations derive from Pepe's testimony. Since Jose Gonzalez,
Sr., then Respondent's plant manager, is Pepe's father, I
have scrutinized his testimony with care. I have, however,
found it consistent with other testimony which would
clearly warrant a determination that President Thompson
believed Gomez and Gonzales had been discussing Com-
plainant Union's campaign within the Fresno plant. Fur-
ther, I have noted, inter alia, that Respondent never sum-
moned Ostlund for the purpose of proffering a denial.
Pepe's recital, therefore, has been credited. Fifth: Elsie
Ledger, though a troubled hesitant witness still in
Respondent's hire, testified with patent sincerity and fideli-
ty to her best recollection (1) that, within a week following
her June 5 signing of Complainant Union's designation
card, Ostlund had-without qualification-directed her
"not to talk" about her card's significance, or Complainant
Union's goals; (2) that her departmental supervisor had
subsequently declared he didn't want "anyone" talking
about unionization, and that he would discharge "the
whole damn lot" who did participate in such conversa-
tions; (3) that Ostlund had told her he considered Anasta-
cio "Joe" Gomez a principal union protagonist; and (4)
that, sometime between June 19 and 27, the mill depart-
ment supervisor told her Gomez and Gonzalez had been
discharged because they were talking about the Union, and
that he had the right to discharge workers who were parti-
cipating in such talk. (During cross-examination, Ledger
conceded that Ostlund's various declarations-more par-
ticularly his last comment noted-were vouchsafed while
he was under the influence of liquor. I have not been per-
suaded, however, that his various statements revelatory of
Respondent's distaste for worker conversations relative to
unionization, or management's motive for discrimination
directed against two of her departmental fellow workers,
should be disregarded as nonprobative, or nonbinding on
Respondent, for that reason. "Wine is wont to show the
mind of man." Theognis, Sententiae, No. 500. Further, the
maxim, "In vino veritas," has been commonly considered a
truism of credibility determination since Pliny's day. Natu-
ral History, book XIV, sec. 141. Certainly, I would not find
Ostlund's several summary restatements of Respondent's
position probative merely because he may have been "un-
der the influence" when he spoke. His possible lack of
complete sobriety, however, provides no compelling reason
for dismissing his reported statements as lacking in rele-
vance or materiality.)
I find Ledger's testimonial recollections worthy of cre-
dence. Her testimony reflects declarations, proffered by a
responsible management representative, which reveal
Respondent's determination to proscribe "union talk"
within the Fresno plant, generally, and to discriminate
against workers with respect to their hire and tenure and
the terms and conditions of their continued employment,
should management's proscription be flouted. Since those
declarations were herein found chargeable to Ostlund, and
were likewise consistent with further declarations by Presi-
dent Thompson noted hereinafter, I find-relying upon
Ledger's somewhat disjointed but persuasive recitals-that
they were made, and reflect Respondent's motivations for
conduct which General Counsel has challenged herein.
Sixth: While a witness, Jose Gonzalez, Sr., testified that,
during a private June 19 conversation before the firm's mill
department workers were confronted by Respondent's
president, the latter had conceded his knowledge "from
somebody else" that Alex Gonzales and Gomez were two
of the company people who supported Complainant
Union's representation bid. According to Jose, Thompson
had declared that he did not want Respondent's Fresno
plant unionized; therefore "those two people" would be
terminated. (President Thompson, while a witness, conced-
ed that Ostlund had indeed told him Gomez was "actively
soliciting and etcetera" for Complainant Union herein,
thereby violating a Fresno plant rule. He insisted, however,
that violations of the firm's no-solicitation rule were "never
a factor" with respect to Gomez' discharge.)
Mindful of Jose's possible witness-chair bias herein, I
have reviewed his testimony, like that of his son, carefully.
With particular reference to his proffered recollection that
President Thompson mentioned information, previously
received, regarding Alex Gonzales' and Gomez' presump-
tively prounion conversations, I credit the former plant
manager's testimony. However, since Respondent's presi-
dent clearly made no definitive move, then and there, to
discharge Alex Gonzales, I reject Jose's purported further
recollection that Thompson had designated both mill de-
partment workers for immediate termination. The former
plant manager testified additionally that:
. . . he [Thompson] explained to me that he could not
fire Anastacio because regarding the question of the
Union. Mr. Thompson asked the secretary . . . for
Gomez' time sheet. He told us that that was the reason
that he was going to fire him because he did not have
enough time marked... .
Since Plant Manager Curiel's subsequent testimony, inter
aha, reflects his substantial corroboration with respect to
this portion of Jose's quoted recital I credit the former
plant manager's testimonial proffer. Compare Glass Guard
Industries, Inc., 212 NLRB 285 (1974), in this connection.
Within my view, therefore, his witness-chair recollections
persuasively buttress General Counsel's contention that,
regardless of Gomez' demonstrated work related deficien-
cies, he would not have been terminated but for President
Thompson's conceded "belief" that he (Gomez) held union
sympathies. I so find.
Alternatively, I am persuaded that Gomez' presumptive
union sympathies-if they did not provide the sole statuto-
rily proscribed "moving cause" for his termination-con-
tributed, nevertheless, to President Thompson's discharge
decision. N.L.R.B. v. Whitin Machine Works, 204 F.2d 883,
885 (CA. 1). Terminations bottomed upon statutorily pro-
scribed considerations, principally or partially, call for
Board redress.
b. Alex Gonzales
Alex Gonzales, likewise a Fresno plant mill department
worker, was summoned to Respondent's office following
Gomez' departure. The record warrants a determination
CENTRAL CASKET CO. 377
that President Thompson told Gonzales he had been over-
heard "soliciting" fellow workers. Gonzales conceded that
he had been "talking about" unionization, but denied that
he had done so within Respondent's plant. (Gonzales had
signed Complainant Union's designation card on May 30.
Though no determination would be warranted that
Respondent's president knew this, he conceded-while a
witness-that he had told Jose he considered Alex Gon-
zales "smart enough to organize" their plant.) President
Thompson then declared that Gonzales' conduct was di-
rectly violative of the firm's previously posted rule against
solicitation, and that "further action of this sort" would
result in his discharge. Additionally, Gonzales was told
that, within his department, he was "doing just enough" to
get by; that there was some doubt regarding the correct-
ness and validity of his daily production reports; and that,
because of this doubt, both his work and his reports would
be "watched very carefully" thereafter. Within a summary
statement, prepared by Respondent's office secretary,
wherein this confrontation was purportedly recapitulat-
ed-which Jose, Ostlund, Cunel, and Massengale signed-
President Thompson's further remarks were summarized as
follows:
Bill Thompson then stated that Alex was a good work-
er but he had been goofing off, and taking too much
time, especially when he was driving the truck. Bill
Thompson said that he did not feel that the times
turned in by Alex, when he was on the truck, were
valid, and although he had an excuse for each time,
such as the truck breaking down, Bill Thompson did
not feel that the excuses Alex gave were valid either.
Alex was told that he was not being fired or layed off,
that he was being issued a warning, and being in-
formed that his work and worksheets were being
watched.
Gonzales then left Respondent's office; following his Janu-
ary 19 shift's completion, he never again reported for work.
On Friday, June 21, Respondent sent him a letter-which
Thompson signed-reminding him that, pursuant to
Respondent's rule, employees were required to notify their
supervisors when absent from work; that he had failed to
do so; that he had been previously warned, specifically on
June 19, regarding work rule violations; and that Respon-
dent would not tolerate any more violations of company
rules or policy thereafter.
Earlier that day, June 21, Gonzales had visited
Respondent's plant to collect a paycheck; he had, then,
claimed that he had been absent from work because of
illness. However, when Ostlund asked whether he had
called Respondent's office for the purpose of reporting his
sickness, Gonzales conceded that he had not done so. He
was reminded that he was "supposed to notify" the firm's
office whenever he could not report, and that if he failed to
do so within 8-12 hours, Respondent had a right to dis-
charge him. Gonzales then, when asked whether he would
be returning to work, replied that he would-but he never
did return. On July 1, Respondent sent him a letter which
read as follows:
On June 21, 1974 you were warned in writing regard-
ing your violating company rules by your absence
from work without notifying your supervisor. At that
time you were told "We will not tolerate any more
violations of company work rules or policy in the fu-
ture." Since that date, you have been absent without
permission, from June 24 through today, July 1, 1974.
This letter is to inform you, that because of this con-
tinued abuse, you are terminated immediately.
The letter was signed by Jose Gonzalez, Sr., in his capacity
as Respondent's plant manager. The record, however, war-
rants a determination, which I make, that Jose signed the
letter pursuant to Thompson's directive; the company
president's order was noted, thereon, within a postscript.
General Counsel contends, herein, that Gonzales despite
his statement that he would be returning to work, was
"prompted to quit" by Thompson's threat to discharge
him, should he persist in discussing unionization with his
fellow workers. I find merit in this contention; Gonzales
was-within my view-thereby constructively discharged.
This Board has held, consistently, that workers who re-
sign or cease reporting for work-when told that their
continued tenure will be contingent upon their relinquish-
ment of union representation or some other statutorily
guaranteed right-will be considered victims of statutorily
proscribed discrimination. Compare Playskool, Inc, 195
NLRB 560, 561, 572 (1972); Sargent Electric Company, 209
NLRB 630 (1974) in this connection. And the record, here-
in, fully warrants a determination that Gonzales did relin-
quish his position after being notified that further "solicita-
tion" conducted in Complainant Union's behalf would
result in his termination. (Respondent contends that Presi-
dent Thompson's warning was merely calculated to com-
pel Gonzales' compliance with a no-solicitation rule,
claimed to be valid, which had been previously promulgat-
ed and conspicuously posted, within the Fresno plant, for
some 6 months. The firm's several posted rules, set forth in
both English and Spanish phraseology, did declare, inter
aha, that: "Solicitation of any type by employees or non-
employees during working hours is prohibited." [Emphasis
in original]. And General Counsel's representative herein
has-for the record-specifically disclaimed any challenge
with respect to the validity of Respondent's rule. He con-
tends, nevertheless, that President Thompson's verbal rep-
rimand, directed to Gonzalez, discloses-facially-the
latter's "overbroad prohibition" with respect to worker so-
licitations, since he sought to proscribe such activity by
Gonzales, generally, without limiting his restriction to
plant "working time" merely. Consistently with General
Counsel's disclaimer, no determination will be made, here-
in, regarding the legality of Respondent's rule, though I
note, parenthetically, that it could be considered impermis-
sibly restrictive, since it bars solicitation by workers during
their "working hours" without qualification. Essex Interna-
tional, Inc, 211 NLRB 749 (1974). Cf. Florida Steel Corpo-
ration, 215 NLRB 97 (1974); The Ohio Masonic Home, 205
NLRB 357 (1973); KDI Precision Products, Inc., 185 NLRB
335, 336 (1970). Compare E. H., Limited, d/b/a Earring-
house Imports, 227 NLRB No. 118, wherein Administrative
Law Judge Stevens found a posted rule, which
Respondent's no-solicitation rule herein substantially
tracks, valid because it barred solicitation during "working
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time" merely. Further, with the record in its present pos-
ture, no determination will be made that the facial "illegali-
ty" which presumptively taints Respondent's rule pre-
cludes the firm from relying upon it as a defense. See
Harold R. Bursten and Dr. Robert Bursten, a Partnership,
d/b/a Shorewood Manor Nursing Home & Rehabilitation
Center, 217 NLRB 33, fn. 1 (1975). Rather, I find that
Thompson's verbal prohibition-directed to Gonzales dur-
ing their conference specifically-was "phrased in such a
broad and unqualified manner, specifying neither the time,
nor the place, nor the persons allegedly solicited, that the
only reasonable interpretation to be placed on [it] was that
[it] [was] intended to encompass [his] union activities as a
whole rather than merely being directed towards the en-
forcement of [Respondent's] rule." Compare Shorewood
Manor Nursing Home & Rehabilitation Center, supra, fn. 1,
in this connection.)
Thompson's June 19 reiteration of Respondent's broad
prohibition, with respect to Gonzales' solicitation of fellow
workers, particularly when coupled with a warning that his
daily production reports were considered suspect and
would be scrutinized closely thereafter, was, within my
view, clearly calculated to persuade Gonzales that contin-
ued manifestations of support for Complainant Union
herein would lead, finally, to his discharge. His consequent
failure to report for work (which derived, so I find, from
his fear of harassment and possible reprisal) cannot, there-
fore, be considered voluntary. I find, consistently with
General Counsel's contention, that he was constructively
discharged for the purpose of discouraging Complainant
Union's representation campaign.
c. Maria Gonzalez
Previously, in this Decision, Maria Gonzalez' position in
Respondent's plant has been briefly noted. To recapitu-
late: Her husband, Jose Gonzalez, Sr., had been designated
as Respondent's Fresno plant manager on or about August
1, 1973. Before taking over that position, Jose had suggest-
ed Maria's hire for work in the Fresno plant's sewing room.
Although she had never done seamstress work commercial-
ly before, she was hired and given a 6-week training course,
within American Burial Casket Company's Oakland plant,
with respect to various types of sewing which Respondent's
Fresno facility would require. On August 28, 1973, she re-
ported for work. In Fresno Mrs. Gonzalez was "put in
charge" with respect to Respondent's sewing room;
throughout her tenure, so far as the record shows, four
more seamstresses, plus a cutter, worked within her juris-
diction.
Maria's participation in Complainant Union's card sign-
up campaign-more particularly, her personal role with re-
spect to setting up and publicizing Complainant Union's
May 30 Roeding Park meeting; the preliminary "introduc-
tion" which she delivered there, whereby Business Repre-
sentative Bayless was presented so that he could speak with
Respondent's workers; and her subsequent solicitation of
several union designation cards, presumably within
Respondent's plant-has previously been noted. On July 4,
shortly following President Thompson's purported July 1
discovery with regard to her participatory role in Com-
plainant Union's behalf, she was terminated. Reminding
her that she had been considered a supervisor,
Respondent's president declared-so I have found-that
she was being discharged for "prejudicial and detrimental"
conduct, because of her union activities, herein noted.
(1) The question of Maria Gonzalez' supervisory status
(a) Duties, powers, and responsibilities
With matters in their present posture, Respondent con-
tends that Mrs. Gonzalez' termination involved no statuto-
ry violation, because she had been a supervisor, within the
firm's Fresno plant, before her discharge. However, Gener-
al Counsel contends, contrariwise, that:
The credible evidence adduced in this proceeding es-
tablishes that Maria functioned in the capacity of a
"lead person" responsible for directing the routine
[work] of a small number of employees, that her limit-
ed supervisory duties did not entail the exercise of in-
dependent judgment, and that she lacked any genuine
management prerogatives or authority characteristic
of a true supervisor.
The question thus presented for determination has been
most thoroughly litigated and comprehensively briefed.
With respect thereto, credible testimony-within my
view-warrants the following factual determinations:
1. Within the Fresno plant's sewing room, Maria was
required to train workers, newly hired as seamstresses, with
respect to the type of sewing which Respondent required.
While discharging her training responsibilities, she rou-
tinely "inspected" their work. (Mrs. Gonzalez did testify
that her inspections were perfunctory; that she discharged
her review responsibilities, in this connection, while "tak-
ing" completed work to Respondent's trim department
where casket assemblies were completed; and that she nev-
er had to return sewn materials for corrective work, since
the firm's seamstresses , when fully trained, made no errors.
Her testimony stands, within the present record, without
contradiction. Nevertheless, some reservation of judgment,
with respect to her credibility, seems warranted. Newly
hired seamstresses , while being trained, would hardly have
been likely to produce perfect casket linings, consistently,
from their very first working day. While a witness, Mrs.
Gonzalez conceded that some seamstresses , following their
hire, had demonstrated their lack of capacity to perform
properly. Maria was likewise required to perform sewing
work herself, making "head panels" for Respondent's cas-
kets. The record warrants a determination, which I make,
that she spent some 70 per cent of her shift time in produc-
tive work; the balance of her time (30 per cent) was spent
training seamstresses, and giving or relaying directives with
regard to work which they would be required to do.
2. Throughout her period of service, Mrs. Gonzalez was
hourly paid, while Respondent's specifically designated de-
partment heads, previously noted, were salaried. Assistant
Plant Manager Ostlund, who supervised Respondent's mill
department, received $250 weekly; Curiel, the firm 's metal
department supervisor, was similarly compensated. When
CENTRAL CASKET CO. 379
Maria started, she received $3.35 per hour ($134 for a 40-
hour week); her hourly rate was matched when Betty Lu-
jan, then Respondent's highest paid trim department work-
er, with 3 weeks' less seniority, was hired. However, effec-
tive June 17, 1974, when six other workers in Respondent's
various departments were given pay raises-together with
nominal "foreman" payroll designations-Mrs. Gonzalez'
pay was raised to $3.60 per hour ($144 for a 40-hour week);
her position, thereby, became the highest paid hourly rated
position in Respondent's plant. (Concurrently, the firm's
newly designated trim department manager , Kathleen Ro-
driguez, who had previously been receiving $3.15 per hour,
was granted a $160 weekly salary.)
When queried with respect to why Maria had not been
transferred to Respondent's salaried staff, President
Thompson told Plant Manager Jose Gonzalez, Sr., and his
wife-so I find-that he could not make her a salaried
worker since "company policy" prohibited two members of
the same family from holding salaried management posi-
tions, concurrently. (According to both Jose and Maria,
they were told that "federal law" forbade Mrs. Gonzalez'
transfer to Respondent's salaried payroll while her hus-
band was serving as the firm's plant manager; with due
regard for probabilities, however, I am persuaded that Jose
and Maria must have misinterpreted or misremembered
President Thompson's proffered rationale. No Federal
statute mandating such a policy, with respect to family
members employed by a single firm, has been cited; I
know of none. Thompson 's testimonial recollection with
respect to his comment, in my view, merits credence.)
When required, Mrs. Gonzalez worked weekdays and
weekends overtime; she was paid for all her overtime
hours. Respondent's three designated department manag-
ers, however, were paid solely for their weekend overtime
work.
3. Maria was regularly furnished with pink "sewing de-
partment" copies of customer work orders which had been
prepared by Respondent's plant secretary; other copies-
differently colored-were forwarded to both Ostlund and
Cunel, in their respective departments. Mrs. Gonzalez re-
tained her department's work order copies. Relying on
them, she gave Respondent's several seamstresses and cut-
ter directions, with respect to what they would have to do,
when filling designated orders. Those orders normally
specified which of several standard casket linings would be
required; likewise they specified the design, fabric, and col-
or required. General Counsel contends, herein, that what-
ever directions Maria gave Respondent' s seamstresses and
cutter, based on these orders, were repetitive, unvarying,
and mundane , because they called for standard materials
which the seamstresses were required to fabricate, together
with standard processes which they had been trained to
pursue, following their eatablished routine. This may very
well have been true; I am satisfied, however, that Mrs.
Gonzalez could, within her discretion, designate which
seamstress should handle particular orders.
4. Mrs. Gonzalez could, likewise, prepare, and did pre-
pare, purchase orders-handwritten in the English lan-
guage-for materials which Respondent 's sewing room
personnel would require. These she would submit to
Respondent's Fresno plant secretary. Maria was likewise
required to maintain the firm's inventory record of materi-
als on hand and completed casket linings. She could requi-
sition help from Respondent's rank-and-file workers-
when required-to inventory fabrics and other materials
currently on hand for sewing work. Her periodic reports,
with respect thereto, were likewise submitted directly to
Respondent's plant secretary.
5. For a short period-not specified for the record, but
probably no more than 2 weeks-Maria kept departmental
production records, pursuant to a request from President
Thompson which her husband had relayed; these showed
the departmental work, (1) which she had done, and (2)
which other sewing department workers had performed.
(Respondent's three specifically designated departmental
managers may have kept similar records, covering the work
done by their subordinates. They kept no records with re-
spect to their personal production; the present record,
however, will support no determination with respect to
whether they regularly performed production work within
their respective departments.)
The record warrants a determination, which I make, that
President Thompson had requested production records,
which Mrs. Gonzalez prepared, so that he could develop a
set of productivity standards, with "point values" set for
various "sewing room" operations. Maria's records were
finally submitted pursuant to Thompson's request.
Respondent's management, however, never did develop
production standards whereby the performance records of
sewing room workers could be measured; thus, no "point"
system, whereby sewing room productivity and compensa-
tion could be determined, resulted.
6. Maria held a key, throughout the period with which
we are now concerned, for Respondent's sewing room.
However, she was never given comparable keys for
Respondent's plant, though her husband held such keys.
Further, Jose had complete "freedom of access" with re-
spect to Respondent's Fresno plant files, for both custom-
ers and plant personnel. Mrs. Gonzalez may have been
given comparable file access privileges; the record with re-
spect thereto cannot be considered clear. In my view, how-
ever, her testimony that she never really consulted
Respondent's files, save pursuant to her husband's direc-
tion, merits credence.
7. Maria was never summoned or required to participate
in management level meetings, between June 13 and the
date of her termination, when President Thompson visited
his Fresno plant. The firm's specifically designated depart-
ment heads-Ostlund, Curiel, and Rodriguez-were, how-
ever, summoned regularly whenever managerial confer-
ences were being conducted.
8. Mrs. Gonzalez, like the rest of Respondent's sewing
room workers, punched the firm's timeclock daily. She
was, nevertheless, authorized, pursuant to her husband's
direction, to fill in missing timeclock entries for sewing
room workers who had failed to "punch in" or "punch
out" properly. Further, she could " initial" such cards,
thereby confirming the concerned worker's right to be paid
for hours shown as worked, on timecards which she had
completed. (Maria testified that Jose had given her this
authority merely to save himself the time and trouble re-
quired to verify "check-in" and "check-out" times posted
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by sewing department workers. This may very well have
been true; there can be no doubt, however, that Jose had,
thereby, vested his wife with "apparent authority" pur-
suant to which she could make decisions which would de-
termine the compensation sewing room workers received. I
so find.)
Respondent 's two relatively longtime departmental man-
agers, Ostlund and Curiel, were the sole department heads
comparably privileged, with respect to completing and ver-
ifying timecards for rank-and-file workers within their re-
spective departments.
9. When Respondent's plant manager decided that "ov-
ertime" was required, the firm's entire sewing room com-
plement would be requested to work late. Mrs. Gonzalez
would, concededly, relay her husband's overtime work di-
rectives to Respondent's sewing room staff. ("I was the one
that had to tell them, because I was the one in charge, by
order of Jose.") Whenever particular seamstresses could
not remain for scheduled overtime work, because they may
have had prior personal commitments , or found themselves
unable to get a babysitter, Mrs. Gonzalez was the person
who could, and did, excuse them from that particular day's
overtime work requirement. "They told me about their
problem because I was in charge of the department," she
testified. Conversely, when work was slow, Respondent's
plant manager would direct his wife to schedule short term
layoffs-normally 1 day per week-for various seamstress-
es within her department. On many occasions, Jose would
himself tell the workers, scheduled for a day's layoff, when
they would not be working; sometimes, however, he would
direct Maria to prepare a rotational schedule for these day-
by-day layoffs, and to notify sewing room workers with
respect to their scheduled nonwork days. This, I find, she
did.
10. When sewing room workers were absent, they would
telephone Respondent's plant. Sometimes they reported to
Secretary Massengale; frequently, however, they would ask
to speak with Maria, and report to her. The record war-
rants a determination-which I make-that Mrs. Gonzalez
was authorized to tell such absent workers, when they
called, that their absences would be excused.
11. The testimonial record, in my view, will support a
factual conclusion that Maria did not, within her sole dis-
cretion, hire seamstresses, or designate them for required
transfers within the Fresno plant, save in very infrequent
nontypical circumstances. I am persuaded, however, that
within Respondent' s managerial hierarchy she could, and
did, make effective recommendations with regard to new
hires. While a witness, Mrs. Gonzalez did claim that she
did not interview job applicants, and that she neither pos-
sessed nor exercised hiring authority. And further testimo-
ny can be found in the record-consistent with hers-that
Respondent 's seamstresses , save in one case , were hired by
Jose directly. (Reference is made to record testimony that
Respondent's plant manager hired Irene Hernandez and
Sally Smith; that he was the management representative
who gave them their sewing room assignments ; and that
Maria was the person who told them, thereafter, what their
work would be.) However, Connie Garza, mother of
Respondent 's assistant plant manager , Kathleen Rodri-
guez, and employee Betty Lujan, testified that, during Sep-
tember 1973 when she was first hired, Respondent's secre-
tary initially took her to see Mrs. Gonzalez, and that it was
the latter who directed her to prepare a job application.
(Later, it was Maria who told her-so Garza testified-
that she plus another worker were being transferred to mill
department positions.)
Likewise, record testimony which I credit reveals that,
when Esperanza Delgadillo, Respondent's cutter, was ter-
minated because of repeated failures to report for work,
under circumstances which will be discussed hereinafter,
Maria's husband directed her to select a replacement, from
a book listing various job applicants which Respondent
maintained within its Fresno plant office; Mrs. Gonzalez,
concededly, made a decision to call Norma Flores, for the
purpose of filling the vacant position . Flores was selected,
so Maria testified , solely because she spoke Spanish; and
when she reported for work, Mrs. Gonzalez was the person
who told her she would be trained as Respondent's cutter,
so that she could replace Delgadillo, who had been func-
tioning in that capacity.
12. The transcript herein reveals considerable testimo-
nial conflict with respect to whether Mrs. Gonzalez was
ever really vested with "authority . .. to suspend, lay off
... discharge , assign . . . or discipline" workers within
her departmental jurisdiction. With respect to whether she
ever really exercised some of these powers, there may be
room for doubt. I am fully persuaded, however, that her
husband, the firm's plant manager, did describe her to
Respondent's workers as vested with such authority, and
that he knowingly permitted her to function as though she
possessed these powers. (While a witness, Maria did claim
that she neither possessed nor exercised discharge powers,
and that she never recommended a termination . She did
concede that several sewing room workers had been termi-
nated, but contended that her husband had made the dis-
charge decision in every case . For example: Mrs. Gonzalez
testified , with respect to Esperanza Delgadillo 's termina-
tion previously noted herein, that she had merely reported
Delgadillo's frequent absences to Respondent 's plant man-
ager; that, sometime in May 1974 she had passed on word
with respect to a particular failure by Delgadillo to report
for work when a rush order had to be filled; and that Jose
had thereupon directed her to notify Delgadillo she was
being terminated . Further , Maria denied telling Secretary
Massengale either that she "would" discharge Delgadillo
or that she "had" done so. Nevertheless, Delgadillo's testi-
mony-which I credit in this connection-will support a
conclusion that Mrs. Gonzalez did, during their final tele-
phone conversation , specifically direct her not to come
back for work, without claiming that Jose had been the
decision maker , in connection with her termination.)
Respondent 's witness , Irene Hernandez , testified credi-
bly that Maria was the person who had discharged her,
following her very first week's work in Respondent's sew-
ing room , because she was failing to meet production stan-
dards. Thereafter, when she protested her termination, dur-
ing a subsequent conversation with Respondent's plant
manager , he declared-so Hernandez recalled-that Mrs.
Gonzalez was in charge with respect to Respondent's sew-
ing room, and that when she "wanted to fire " workers she
could do so . Sally Smith , likewise a sewing room dischar-
CENTRAL CASKET CO.
gee, testified credibly that, following her third or fourth
day at work, Maria told her she could not be retained be-
cause she "wasn't as fast as the other girls" working there.
And Connie Garza testified that sometime in September
1973 Mrs. Gonzalez had personally terminated another
worker, whose name Garza could not recall. (While a wit-
ness, Maria categorically denied these testimonial recitals,
by Hernandez, Smith, and Garza, respectively. Neverthe-
less, their proffered recollections, in my view, merit cre-
dence. They testified straightforwardly; their recitals were
mutually consistent; within my view, their composite testi-
mony comports with logical probability. While a witness,
Mrs. Gonzalez persistently described her functions and re-
sponsibilities in terms which reflected her desire to mini-
mize them; repeatedly, she sought to portray herself as her
husband's mouthpiece, solely. Her testimony conveyed a
picture of Respondent's managerial organization signifi-
cantly at variance with sound practice; within my view, her
descriptions lack the ring of truth. With due regard for the
record considered in totality, I am persuaded that Maria,
precisely because of her relationship with Respondent's
plant manager, did consider herself "authorized" to termi-
nate sewing room workers, whenever she found such action
reasonably warranted-and that she did, consistently with
her belief regarding her proper managerial role, discharge
those workers whom she considered deficient.)
When a representative of the State of California's unem-
ployment compensation bureau telephoned Respondent's
Fresno plant, seeking information with respect to
Delgadillo's termination, Jose could not be located; Secre-
tary Massengale thereupon summoned Mrs. Gonzalez to
describe the circumstances which had precipitated
Delgadillo's discharge.
(b) Conclusions
Question with respect to whether particular persons
should be considered supervisors, within the statutory de-
finition, have frequently been presented for Board resolu-
tion; factual predicates, with respect to such questions,
have frequently been quite complex. The statutory provi-
sion which governs, Section 2(11), must be construed-
pursuant to well-settled decisional doctrine-disjunctively;
workers who possess "any [single] one" of the several pow-
ers which the designated section lists will be considered
supervisors. Pacific Intermountain Express Company v.
N.L.R.B., 412 F.2d 1, 3 (C.A. 10, 1969); Ohio Power Com-
pany v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6, 1949). More-
over, Section 2(11) does not require a showing that some
particular employee regularly exercise a supervisor's power
or powers, described therein, throughout his working time,
or some definite portion thereof; the power's mere "exis-
tence" will determine his classification. Ibid at 388. Never-
theless, when determinations must be made with respect to
whether some particular employee possesses a power or
powers set forth within the statutory definition, triers of
fact confront no simple task. Determinations regarding a
worker's supervisory status cannot be based on hard and
fast rules. Rather, conclusions with respect to whether
some designated employee possesses such powers must be
bottomed on factual data considered and weighed with due
381
regard for a particular case's relevant context. Cf. American
Book Division, Litton Educational Publishing, Inc., 214
NLRB 413 (1974), in this connection.
Considered in totality, the testimonial and documentary
record proffered for Board consideration herein-previ-
ously summarized-warrants a determination, within my
view, that Maria Gonzalez, throughout the period with
which this case is concerned, functioned as Respondent's
sewing room supervisor, within the meaning of Section
2(11)'s statutory definition.
Although Mrs. Gonzalez, while a witness, consistently
tried to minimize her participatory role with respect to
both new hires and discharges, credible testimony will sup-
port a determination-which I make-that her participa-
tion, with respect to both functions, was more than passive.
For example: She was clearly delegated responsibility for
the selection of Esperanza Delgadillo's replacement; when
she selected Flores, Maria's selection-concededly-re-
flected her "independent judgment" that a Spanish-speak-
ing seamstress should, preferably, be hired. Assuming, ar-
guendo, that Mrs. Gonzalez may not have, herself, given
Flores the definitive commitment which confirmed her
hire, there can be no doubt that, minimally, her participa-
tory role reflected "effective" recommendation. Similarly,
with respect to several seamstress discharges, the record,
taken as a whole, clearly reflects Maria's participation.
Certainly, she communicated Respondent's termination
decisions; testimony which I have found credible provides
support, within my view, for a further determination that
she personally had previously made those decisions. Alter-
natively, the record will, at the very least, support a deter-
mination that she recommended them. (Mrs. Gonzalez'
contrary testimony-that she was merely functioning as
Jose's conduit-when Hernandez, Smith, and Delgadillo
were notified regarding their terminations-must be con-
sidered disingenuous; certainly, nothing in the present rec-
ord suggests that these workers were ever told Maria was
merely a messenger conveying Jose's decision. See Ameri-
can Book Division, Litton Educational Publishing, Inc., su-
pra, in this connection.)
Upon this record, conclusions seem clearly warranted
that Jose's wife was, throughout her period of service, vest-
ed with discharge powers, so far as Respondent's sewing
room workers were concerned; that Respondent's plant
manager had-certainly once, and possibly several times-
himself declared her vested with such powers; and that she
had, consistently, been permitted to "hold [herself] out" as
possessing "lay off" and/or "discharge" authority when
notifying workers with respect to their terminations.
Certain additional factors, previously noted herein, pro-
vide further support for my conclusion that Maria should
properly be considered a supervisor. For example: Al-
though her fob-related functions and responsibilities, with-
in Respondent's sewing room, may not have required her
to exercise "substantial" independent judgment, she did,
within her sole discretion, make work assignments; further,
she concededly reviewed sewing room work done by
Respondent's seamstresses following its completion. When
required-particularly while newly hired workers were
being trained-she formulated and communicated person-
al judgments with regard to their work's quality, the pace
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their work, and their capacity to satisfy Respondent's
production standards. (These factors, in my view, provide
more than sufficient support for a determination that Mrs.
Gonzalez possessed the power "responsibly to direct" work
done within Respondent's sewing room. I so find.)
Further: Maria's delegated authority with respect to sup-
plying missing timecard notations-together with her con-
comitant power to validate, through her signature, time-
cards bearing such handwritten notations-persuasively
reflects her status as Respondent's effective management
representative within the Fresno plant'a sewing room. Fi-
nally: The fact that she could, within her discretion, con-
done reported absences, grant sewing room workers "ex-
cuses" from required overtime work whenever hardship
situations developed, and schedule such workers for short-
term layoffs, provides further support for a determination
that Mrs. Gonzalez held a supervisory position.
True, she was hourly paid, spent a major portion of her
plant time doing productive work, and never partici-
pated-so far as the record shows-when top level man-
agement conferences were being held. These factors in
Maria's situation, certainly, could most reasonably be con-
sidered contraindicative, with respect to Respondent's con-
tention that she should be considered a supervisor;
weighed within their total context, however, they cannot-
in my view-persuasively foreclose such a determination.
(In this connection, I note parenthetically some substan-
tially "parallel" testimony, which Maria, Jose, and Presi-
dent Thompson proffered, suggesting that she [Mrs. Gon-
zalez] was told she could not be salaried, because of certain
"extrinsic" considerations, not related to her work respon-
sibilities. Both Jose and Maria testified that President
Thompson had cited "federal law" when explaining why
his plant manager's wife could not be salaried;
Respondent's president testified that they were told "com-
pany policy" proscribed such a compensation readjust-
ment . Their composite testimonial recollections, though
not congruent, clearly "imply" that Maria would have been
salaried, like Ostlund and Curiel, but for one or the other
of these restrictive considerations.)
Finally, I note-separately and apart from these factual
and/or testimonial considerations-that, within her Deci-
sion and Direction of Election promulgated in Complain-
ant Union's representation case, the Acting Regional Di-
rector found Mrs. Gonzalez vested with supervisory
"authority" within the statutory definition. True, her deter-
mination may not be controlling herein. Cenco Medical/
Health Supply Corporation, 207 NLRB 123, 128 (1973);
compare Spruce Up Corporation, 181 NLRB 721, 722, fn. 4
(1970), in this connection. (The Acting Regional Director's
decision may not be considered "controlling" for several
reasons. Inter aha, I note that neither the General Counsel
nor Mrs. Gonzalez were formally privy to Complainant
Union's representation petition. Further, Respondent's
president was the sole witness; his testimony with regard to
Maria's supervisory status was proffered without chal-
lenge , dispute, or contradiction.)
Nevertheless, this representation case determination can
hardly be disregarded; clearly, within its total context it
possesses some relevance. Business Representative Bayless,
though present when the representation case hearing was
held, never challenged or contradicted President
Thompson's testimony therein. Though presumably cogni-
zant that such testimony-presented and received without
dispute-nught well result in Maria's formal exclusion
from whatever bargaining unit the Acting Regional Direc-
tor could find appropriate within Respondent's Fresno
plant, Bayless never even requested that his representation
case 's record should be "held open" for the subsequent
presentation of countervailing testimony. Further, when
the Acting Regional Director finally rendered her deci-
sion-wherein Mrs. Gonzalez was specifically excluded
from the bargaining unit designated-no requests for Re-
gional Office reconsideration or Board review were filed.
My determinations herein, with regard to Maria's supervi-
sory status, therefore coincide with those which Complain-
ant Union had, presumably, considered "acceptable" while
pressing its representation petition.
(2) The question of her discharge
Since I have found that Mrs. Gonzalez was-throughout
her period of service-the Fresno plant's sewing room su-
pervisor, within the meaning of Section 2(11) of the Act,
she cannot-for present purposes-be considered a statu-
tory "employee" legally protected with respect to her exer-
cise of rights which Section 7 of the Act guarantees. Cf.
Beasley v. Food Fair of North Carolina, Inc., et al., 416 U.S.
at 653 (1974). Consequently, her discharge-though specif-
ically bottomed upon her conceded course of conduct in
Complainant Union's behalf-cannot be considered a stat-
utorily proscribed unfair labor practice.
d. Margaret Huerta and Norma Flores
(1) The layoffs
Huerta and Flores had been hired as sewing room work-
ers; they had commenced work on March 19 and May 20,
1974, respectively. Huerta worked as a seamstress ; she had
had some 15 years of previous experience doing commer-
cial sewing. Flores, following her hire, had required train-
ing so that she could function as Respondent's cutter.
Both Huerta and Flores had signed Complainant
Union's designation cards. Huerta had done so on May 30
during the Roeding Park meeting; Flores had signed her
card the following day, while at work, pursuant to Mrs.
Gonzalez' solicitation. (The record herein, contains no sub-
stantial, reliable, or probative evidence that Respondent's
management representatives-save for Maria Gonzalez,
their sewing room supervisor-knew, or had reason to be-
lieve, that these workers had signed union designation
cards. General Counsel, in his brief, cites certain testimony
which Huerta proffered during her direct examination,
which-he contends-will persuasively support a deduc-
tion that President Thompson knew her union sympathies.
That testimony's probative worth will be discussed subse-
quently. Neither Huerta nor Flores, so far as the record
shows, participated as protagonists in Complainant
Union's representation campaign thereafter. Throughout
the period with which we are concerned, they were-so I
find-merely passive union supporters.
CENTRAL CASKET CO. 383
On July 8, since work in Respondent's sewing room had
become somewhat slack, Huerta and Flores were transfer-
red to the firm's trim department, which Assistant Plant
Manager Rodriguez supervised. There they were assigned
to Respondent's production line; they inserted casket pad-
ding, linings, and placed protective covers over completed
caskets.
Shortly thereafter, on Wednesday, July 10, Margaret
Huerta, together with Miguel Huerta, her husband-like-
wise a trim department worker-spoke with Respondent's
president, while Assistant Plant Manager Rodriguez was
present, regarding a pay raise. (Both had previously re-
ceived 25-cent raises, from their March 1974 starting rates,
effective June 3; for slightly more than 1 month, therefore,
they had been receiving $2.50 per hour.) Mrs. Huerta de-
clared she had heard that "everybody" would be getting
raises; she asked whether she and her husband would like-
wise receive one. With respect to Thompson's reply,
Respondent's former seamstress-testifying in direct exam-
ination-recalled that:
He said, no. And he said that because we have signed
union cards, that we have activities to do with the union.
And I told him that everybody did, everybody had
signed union cards and that they were getting raises,
including Kathy Rodriguez. And he said that that was
his business [emphasis supplied].
When queued with respect to Huerta's testimony,
Respondent's president conceded that they had, indeed,
discussed raises; however, he proffered a somewhat differ-
ent version of their conversation. Thompson-with Rodri-
guez' corroboration-claimed he had merely stated that,
since Complainant Union had filed a representation peti-
tion, he could not grant raises, for fear of being charged
with a statutory violation. Huerta had mentioned raises
which certain other workers had received; replying that
Respondent's president-so he testified-had told her that
such raises were limited to certain workers who had been
"jumped" into so-called "foreman" positions. Thompson
categorically denied that Mr. and Mrs. Huerta were ever
told he could not give them raises because they personally
had signed union cards.
These testimonial recitals--patently divergent when tak-
en at face value-seemingly cannot be reconciled. With
respect thereto, Respondent's counsel and General
Counsel's representative have therefore contended for fa-
vorable credibility determinations. (In this connection,
Respondent's counsel has suggested, inter aka, that
Huerta's complete failure to mention this purported " raise"
conversation within two prehearing statements, signed and
sworn to by her-which she gave Regional Office represen-
tatives-should dictate her version's refection; substantial-
ly, counsel would have this Board disregard her direct testi-
monial recital because it reflects, in his view, nothing more
than a belated witness-chair fabrication. However, General
Counsel's representative-for the purpose of countering
Respondent's contention-has produced a previous state-
ment, which Huerta had personally drafted some 8 days
following her July 10 conversation with Respondent's pres-
ident; she had-so the record shows-submitted that type-
written statement, without her signature, to a Regional Of-
fice representative, within 2 weeks following the conversa-
tion in question. Certain relevant portions thereof, so Gen-
eral Counsel suggests, should therefore be considered a
complete refutation of Respondent's presumable " recent
fabrication" contention.)
Though satisfied that Huerta's witness-chair recollec-
tions proffered during her direct testimony reflect no re-
cent contrivance or fabrication, I nevertheless find Presi-
dent Thompson's testimonial version, with respect to their
July 10 conversation, more worthy of credence. I note, par-
ticularly, that in Mrs. Huerta's first of three prehearing
statements-which she had concededly prepared, person-
ally, shortly following the conversation now in question-
her recorded recollections, properly construed, do not really
"match" those set forth in her direct testimony; rather,
they comport, substantially, with President Thompson's
testimony. In relevant part, Huerta's prior statement (with
grammatical and spelling corrections noted, solely for the
purpose of promoting clarity) reads:
On July 10, my husband Miguel Huerta and I [asked]
Bill Thompson if we were going to get a raise since
everybody was getting one and we were still making
$2.50 [an] hour... .Instead, Bill told us that he
[knew] that we had [signed] the union cards and he
could not give us a raise because he would get in [trou-
ble] with the [government]. I told him if he knew that
everybody [signed] the union cards why [were] certain
people . . . making good money even if they [didn't
know] how to do [their] work. He said that was his
business and that it was up to Cathy the supervisor.
[If] we qualified for a raise we would get one and for
that we had to make 480 min. a day and every day
.... [Emphasis supplied.]
Mindful of the fact that, for Mrs. Huerta particularly, Eng-
lish constitutes a second language-with respect to which
her comprehension and capacity for verbal or written ex-
pression could hardly be considered facile-I find that her
quoted prehearing statement reports President Thompson's
conversational remarks with connotations significantly dif-
ferent from those conveyed by her witness-chair declara-
tions, but substantially consistent with President
Thompson's recollection. With due regard for the record
considered in totality, my observations of the witness, and
logical probabilities, I cannot therefore give Huerta's direct
witness-chair testimony, with respect to Thompson's prof-
fered rationale for rejecting her raise request, the "credibil-
ity gloss" for which General Counsel presently contends.
Compare N.L.R.B. v. Marland One-Way Clutch Co., Inc.,
89 LRRM 2721 at 2724, 2729 (C.A. 7, 1975), in this con-
nection. Rather, I must credit Thompson's version of their
conversation-particularly with respect to the context
within whici- "union cards" were mentioned-partially be-
cause of Rodriguez' corroborative testimony, but primarily
because Huerta's previously recorded recollection, with re-
spect to what Thompson said, can reasonably be construed
consistently therewith. Specifically, I find-despite former
General Counsel's contrary suggestion-that Respondent's
former seamstress did not really, within her previously re-
corded statement, report, consistently with her testimony
herein during direct examination, that Thompson had de-
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glared himself disposed to deny requested raises "because
we [Margaret and Miguel Huerta] had signed" union cards,
or because "we [Mr. & Mrs. Huerta] had activities to do"
with Complainant Union herein. Rather, her first state-
ment-properly construed-merely reflects what she con-
sidered a declaration by Respondent's president that he
knew "we [signifying "everybody" i.e., numerous Fresno
plant workers] had "signed" union cards, and, therefore,
that raises granted within the context of Complainant
Union's campaign for representative status would generate
"trouble" with the government, presumably because Re-
spondent could then be charged with an unfair labor prac-
tice.
Mrs. Huerta's previously prepared statement, thus con-
strued, reflects no significant deviation-in my view-from
President Thompson's testimony. Further, her statement
comports with Assistant Plant Manager Rodriguez' corrob-
orative testimonial recital. Thompson's proffered recollec-
tions, with respect to their July 10 conversation, have there-
fore been credited. Considered in context, his remarks
clearly reflect no claimed "knowledge" with respect to
Mrs. or Mr. Huerta's presumptive union sympathies; nor
do they reflect a determination to withhold raises from
both workers, particularly, because Respondent's manage-
ment considered them union supporters.
Earlier, during the morning of July 10, Respondent's
president had conferred with his three assistant plant man-
agers-Ostlund, Curiel, and Rodriguez-regarding the
firm's reduced business volume. Respondent's department
heads were told that new orders were coming in slowly,
and that Respondent would lose money unless they could
lay off some workers. (Respondent's defensive presenta-
tion, herein, will support factual determinations-which I
make-that no more than "one or two" new orders were
then being received daily; that some 500 completed caskets
were then still being held in warehouse facilities, whereas
Respondent's normal stock on hand would have com-
passed no more than 150-200 caskets; that such "normal"
stock quantities would support a week's sales; and that
Respondent's president, therefore, considered his complet-
ed casket inventory significantly high. General Counsel has
not herein challenged Respondent's testimonial claims; I
find them credible. Consistently therewith Rodriguez testi-
fied further that-during their July 10 conference-the
firm's president was told her department then had 6 work-
ers [though Respondent's payroll records show 8] working
on some 12 caskets, whereas her crew normally completed
some 30 caskets daily. Rodriguez declared, credibly and
without persuasive contradiction, that many of her trim
department workers were "standing around talking" be-
cause there was no work.)
Decisions were therefore reached that several layoffs for
"lack of work" would be made. Pursuant thereto,
Respondent's management effectuated a net reduction of
four employees; three of these were trim department work-
ers. Huerta, Flores, and Emilio Briseno, who then pos-
sessed the lowest departmental seniority, were summoned
to Respondent's plant office, where they were notified of
their layoff. (The record shows further that Huerta and
Flores who had concededly been transferred to
Respondent's trim department less then 2 days previously,
then were likewise workers holding the lowest seniority in
Respondent's sewing room; their July 8 transfers had pre-
viously reduced Respondent's rank-and-file sewing room
complement from five to three workers.)
Shortly thereafter, Respondent's president-with Curiel
serving as his translator-notified Tomas Perez, then the
firm's most junior metal department worker, that he was
likewise being laid off because of his junior status, but that,
when production increased, he would be recalled. Perez
thereupon requested his final check forthwith; Curiel, how-
ever, told him to "cool it" since he would be receiving his
check on Respondent's next regular payday. ( Perez is
Curiel's brother-in-law; throughout the period with which
we are presently concerned he was living in Curiel' s home.
He had, however, signed a union designation card on May
31 and had been transported, by Curiel, to Complainant
Union's June 27 meeting at the residence of Jose Gonzalez,
Sr.)
Respondent's payroll records further reveal two more se-
parations, coupled, however, with two new hires during
this period. Specifically, they show July 9 as Raynaldo Al-
varez' last day worked; Alvarez had been, as of July 9, the
firm's metal department worker with lowest seniority, since
he had been hired less than a month previously. The rec-
ords likewise show July 10 as Edward Morales' last day
worked. Though a regular trim department worker, like
Briseno, he was not then that department's next most "jun-
ior" worker; the record is silent regarding his termination's
rationale. Within the plant's mill department, however,
payroll records show Randy Crowley with a July 10 hiring
date; no specific testimony with respect to Respondent's
reason for hiring him, concurrently with a reduction in
force, has been proffered. (The firm's payroll records, how-
ever, do show that on May 30, when Complainant Union's
campaign began, there were nine mill department work-
ers. During June 1974 four of these-Gomez, Alex Gon-
zales, and Ceniceros, together with Bill Masters-had
either resigned or been terminated. Tomas Perez, though
initially hired for mill department work, had been trans-
ferred. Crowley was the department's very first replace-
ment hire.)
Concurrently, so the record shows, Respondent hired a
third truckdriver, Richard Boline. With these personnel
changes, therefore, Respondent had effectuated a net re-
duction in force; though two workers had been newly
hired, six-distributed throughout the firm's various pro-
duction departments-had been terminated.
Within the context of Respondent's reduction in force
program, Huerta and Flores were told-specifically-that
they were being laid off because they were "junior" work-
ers, and that "no prejudice" whatsoever was involved.
Flores queried Thompson, then, with regard to their possi-
ble recall; she was assured-so Secretary Massengale and
Flores testified-that when production increased she and
Huerta would be rehired. (Huerta declared, while a wit-
ness, that Thompson had promised to recall those termi-
nated "before hiring anybody" within the departments
where they had worked. However, with due regard for the
record considered in totality, together with my observation
of General Counsel's and Respondent 's witnesses , I credit
the testimony proffered by Massengale and Flores, rather
CENTRAL CASKET CO. 385
Thompson's commitment.) Huerta then requested a letter
declaring that she had been laid off, so that she could col-
lect unemployment compensation. She, Flores, and Brise-
no were given such letters; Perez subsequently received a
similar letter.
(2) Conclusions
Upon this record, General Counsel seeks a determina-
tion that Huerta and Flores were really "discharged" be-
cause of their union sympathies. However, I have not been
persuaded. Respondent's contrary contention, that they
were merely "laid off" pursuant to management's planned
reduction in force-within my view-merits Board concur-
rence.
Several considerations, developed through credible testi-
mony and various documentary proffers, have led me to
this conclusion. First. Respondent's witnesses did testify,
credibly and without contradiction, that their firm's busi-
ness fluctuates seasonally; that July and August have nor-
mally been low volume months; and that-during 1974
particularly-this pattern of seasonally reduced sales, cou-
pled with a substantial inventory buildup of completed cas-
kets, had been repeated. Second: Huerta and Flores, con-
cededly, were not singled out discriminatorily for
termination. They were "laid off" during a plantwide re-
duction in force which ultimately touched each of
Respondent's four production departments. A net reduc-
tion of four workers resulted. Third: Nothing within the
present record would warrant a determination that Huerta
and Flores were discriminatonly selected for inclusion with
others laid off. Whether Respondent's management con-
sidered them sewing room employees or trim department
workers on July 10, they clearly held the lowest seniority,
then, within both of these Fresno plant divisions. Their
fellow workers who were likewise terminated-Briseno and
Perez-were also Respondent's most "junior" workers
within their respective departments.
Fourth: General Counsel's suggestion, that Respondent's
management "knew" both sewing room workers were
union card signers and/or sympathizers before they were
terminated, lacks substantial, reliable, and probative rec-
ord support. General Counsel's first contention-that Pres-
ident Thompson had revealed knowledge with regard to
Miguel and Margaret Huerta's particular designation card
signatures and particular union sympathies during their
earlier July 10 conversation relative to possible raises-has,
previously herein, been rejected; his personally proffered
recollections with respect to their conversation, which I
have credited, reflect no such revelation. Further, with re-
spect to Flores, no persuasive testimony-susceptible of
construction as probative of company knowledge-can be
found in the present record. Maria Gonzalez' knowledge,
though presumably readily provable or deducible, could
hardly be "imputed" reasonably to Fresno's higher man-
agement, with due regard for this case's peculiar circum-
stances. General Counsel has suggested that Kathleen Ro-
driguez had signed Complainant Union's designation card,
and had, likewise, for a short time, generally supported
Complainant Union's campaign. Thereafter, following her
June 17 designation as Respondent's assistant plant man-
ager, she had concededly told Respondent's president
"practically everything that went on" within the plant.
General Counsel, therefore, would have this Board deduce
directly-from Rodriguez' broadly phrased testimonial
concession-that Respondent's president had somehow ac-
quired knowledge, particularly regarding the union sympa-
thies of both Huerta and Flores, from her. Such a supposi-
tious deduction with respect to President Thompson's
source, and the state of his knowledge-though conceiva-
ble-cannot be considered warranted, within my view.
Save for Huerta's and Flores' decisions to sign Com-
plainant Union's designation cards and Huerta's subse-
quent decision to attend the June 27 meeting at Jose's resi-
dence, the present record is completely devoid of testimony
regarding their participation in that organization's cam-
paign. Fifth • The record, considered in totality, does not, in
my view, persuasively support General Counsel's conten-
tion that Huerta and Flores were terminated because of
President Thompson's hostility toward unionization. Be-
yond Respondent's directly defensive presentation-prof-
fered to persuade me that these disputed July 10 layoffs
should be considered derived from business consider-
ations-the record, inter aha, clearly reveals that Miguel,
Margaret Huerta's husband, was permitted to continue
work shortly thereafter despite a July 12 failure to report
for work which had initially persuaded President Thomp-
son to discharge him. Yet Miguel had, like his wife, been
present during Complainant Union's May 30 and June 27
meetings ; he had likewise signed a designation card. Presi-
dent Thompson's willingness to excuse his July 12 failure
to report for work-in my view-persuasively reflects his
lack of hostility toward the Huertas, and negates General
Counsel's contention that President Thompson's prior lay-
off of Mrs. Huerta derived from a purpose of reprisal. Fur-
ther, with respect to Flores particularly, no proof of hostili-
ty, bottomed upon union considerations, has convincingly
been demonstrated. Sixth: General Counsel's further con-
tention-that Respondent's discriminatory motivation for
these July 10 layoffs can be deduced, retrospectively, (a)
from Fresno plant management's subsequent failure to re-
call them, specifically for trim department work, during a
period within which five new trim department workers
were being hired; (b) from Huerta's final discharge, for
what General Counsel calls pretextual reasons, following
her subsequent recall for sewing room work; and (c) from
Respondent's so-called "illusory offer of recall" which
Flores subsequently received-carries no persuasion. The
firm's failure to consider either Huerta or Flores as possi-
ble candidates for reemployment when trim department
work increased cannot realistically be considered "highly
technical and strained" consistently with General
Counsel's contention; they were, I find, considered reason-
ably qualified primarily for sewing room work, whereas
their trim department tenure had compassed no more than
1-1/2 days. Further, Respondent's operative motive for
Huerta's August 27 recall and subsequent discharge can be
deduced, logically and most reasonably, in my view, from
President Thompson's testimonially described reaction to
certain developments which followed her July 10 layoff;
these will be discussed further in this decision. Finally, I
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Thompson's decision to send Flores a recall letter
derived, likewise, from these postlayoff developments; his
ultimate course of conduct, therefore, provides no retro-
spective illumination with respect to Respondent's motiva-
tion for her prior July 10 layoff.
Mindful of these considerations, I conclude-specifical-
ly with reference to Huerta's and Flores' July 10 termina-
tions-that General Counsel's discriminatory discharge
claims and derivative 8(a)(1) contentions lack adequate
record support.
e. Francisco Lara
Francisco Lara was hired on August 30, 1973, for metal
department production work; some 8 months later , during
May 1974, he, together with two fellow workers, began to
consider possible union representation. He told Jose Gon-
zalez , Sr., then Respondent's plant manager, that contacts
were being sought with some labor organization which
could represent Respondent's employees.
When thereafter Complainant Union's business repre-
sentative commenced a card signup campaign, Lara be-
came active therein. Shortly before Complainant Union's
May 30 Roeding Park meeting, he told Curiel, his
department' s manager that a meeting had been scheduled.
Curiel commented-so Lara's credible testimony shows-
that Respondent's unionization would be "fine" for several
reasons, but that he didn't "want [Thompson] to know"
that such a campaign would shortly begin. (These factual
findings derive from Lara's testimony, which I credit in
this connection. As previously noted, he had spoken with
Respondent's plant manager, declaring his interest with re-
spect to Respondent's possible unionization ; the record,
considered in totality, warrants a determination that Lara
knew Curiel and Jose Gonzalez, Sr., were then friendly.
Further, Curiel and he [Lara] were then, likewise, main-
taining a friendly social relationship. Mindful of these con-
siderations, I find Lara's testimony-that he told Curiel,
beforehand, about Complainant Union's scheduled May
30 meeting-consistent with the probabilities.) Lara, to-
gether with "Pepe" Gonzalez, had, in fact, helped to ar-
range Complainant Union's scheduled meeting, and had
personally notified various Fresno plant workers with re-
spect thereto. When the meeting was thereafter held, he
was present, and signed Complainant Union's designation
card. The following day, while at work, he-together with
Pepe, the plant manager's son-persuaded four of their fel-
low workers to sign Complainant Union's cards.
Respondent's payroll records show that, within a short
time thereafter, Lara, who had previously received several
raises, received another 5-cent raise, effective with the
commencement of Respondent's June 3-9 payroll week.
Further, on June 14, he received one of Respondent's six
"foreman" designations, together with a pay raise from
$2.75 to $3.40 per hour, effective the following week. His
duties, however, were significantly modified solely in one
respect; he would be required thereafter to help train his
department's new workers, most of them Spanish-speaking
like himself.
(1) President Thompson's reprimand and Lara's
resignation
On July 21 or 22, Lara, who is a Mexican alien , request-
ed and received a letter-signed by both President Thomp-
son and Respondent's metal department manager-which
would presumably support steps which he proposed taking
to confirm his legal immigrant status. Therein, Re-
spondent's management representatives-so Lara credi-
bly testified-declared:
That [he] earned $3.40 an hour; that [he] worked 40
hours and sometimes overtime, when it was necessary;
that [he] was a supervisor; and that, when [he] re-
turned from Mexico, that [he] would have [his] work
as long as [he] wanted.
Under relevant Federal Government immigration statutes
and regulations consistent therewith, with respect to which
I take official notice, aliens seeking legal entry to this coun-
try-regardless of their original nationality-must satisfy
the United States Immigration and Naturalization Service
that they will not become public charges, when permitted
to cross the border with "legal immigrant" status; this nor-
mally requires them to submit proof with respect to their
financial resources, sponsorship, or prospective gainful em-
ployment. Where Mexican nationals are concerned, such
proof is normally submitted to United States consular rep-
resentatives within that country; these consular representa-
tives then prepare and partially draft "green cards"
which-when subsequently reviewed, completed, and vali-
dated at border stations-provide the newly received resi-
dent alien with proof of legal immigrant status. The letter
which Lara received was-so the record shows-provided
so that he could thereafter commence the process pursuant
to which his legal immigrant status would ultimately be
confirmed.
Sometime during August 1974 Lara requested and re-
ceived President Thompson's permission to take a vaca-
tion-following the completion of his first year's work on
Friday, August 30-during which he planned to undertake
a Mexican return, for the specific purpose of procuring a
valid "green card" whereby his legal "resident alien" status
would be confirmed.
With the date of his scheduled departure drawing near,
Lara questioned Curiel repeatedly with respect to when he
would be receiving his vacation pay, which he wanted by
August 30 before his planned Mexican trip could begin.
(The record warrants a determination-which I make-
that Lara had likewise contacted Massengale, Re-
spondent's plant secretary, twice, for the purpose of soli-
citing her help in procuring his vacation check by August
30; no determination would be warranted, however, that
Massengale had taken any particular action pursuant to
his request.) Finally, sometime during the late morning
hours of Wednesday, August 28, when he could not reach
his department's manager, Lara finally sought Kathy Ro-
driguez, then Respondent's trim department manager, and
possibly the firm's acting plant manager, with inquiries re-
garding his vacation check. Since he spoke English poorly,
while Rodriguez could merely listen but not participate in
Spanish language conversations, Lara requested Connie
CENTRAL CASKET CO. 387
Garza, Rodriguez' mother, to provide interpretive services.
Both women thereafter tried to help Lara converse with
Massengale regarding his vacation check. (Though Rodri-
guez did suggest that Lara's problem didn't fall "within
[her] department" but concerned something which Curiel
should handle, she did not reprimand Lara for coming to
her; neither did she turn him away. She did not question
his claim that Cunel had, previously, failed or refused to
help him procure information with regard to his vacation
check.) While Lara, Rodriguez, and Garza were convers-
ing, Cunel passed them, but said nothing. President
Thompson likewise saw Lara, Rodriguez, and Garza in
conversation, from a distance, but could not hear what was
being said.
Later, during the afternoon, Respondent's president-
with Cunel functioning as his interpreter-confronted
Lara. Thompson, with his voice raised, reprimanded Lara
vehemently for speaking to Rodriguez, rather than Curiel,
his designated departmental manager, regarding his vaca-
tion check. Lara's defensive protestation, that he had not
been able-then-to locate Curiel within Respondent's
Fresno plant, was disregarded; Respondent's president, I
find, made no reply. In this connection, Thompson de-
clared-further-that Lara and he "didn't have any busi-
ness" requiring immediate disposition. Then Respondent's
president told Lara, bluntly, that his most recent produc-
tion records reflected a level of performance which did not
satisfy Respondent's production standards; Lara was
told-substantially-that, unless his performance im-
proved, his gross pay would be reduced. (The record re-
flects a significant testimonial conflict between Thompson
and Lara with regard to this portion of the former's lecture.
According to Lara, Respondent's president declared that-
since he was considered a so-called "foreman" or "supervi-
sor" within his department-he should be doing productive
work sufficient to make 500 production "points" per day.
Further, so Lara testified initially, he was told that, should
he fail to make 500 daily points consistently, his "salary"
would be reduced. Ultimately, however, while testifying
during the reopened hearing herein, Lara declared that
President Thompson had merely told him Respondent's
management would withhold the firm's standard $10 week-
ly "bonus" payment which he had previously received,
should he thereafter fail to meet Respondent's 500-point
standard. With respect to this portion of their conversa-
tion, Respondent's president-while a witness-has prof-
fered a somewhat different recollection. According to
Thompson, Lara was told: That, since he was a designated
"foreman" he was considered a proficient worker, who
could reasonably be expected to make 500 production
`points" per day; that his production reports for Monday,
August 26, and Tuesday, August 27, however, had merely
shown 445 and 405 points posted, respectively; and that,
should his future reports reflect his failure to satisfy
Respondent's designated 480-point standard, he would re-
ceive no $10 weekly bonus payments. The record, consid-
ered in totality, preponderantly supports President
Thompson's testimony that Respondent's production in-
centive system specified 480 points as the regular "break"
point with respect to weekly bonus payments. I credit
Thompson's testimony, therefore, with respect to what
Lara was told. Lara's present witness-chair declaration-
that he was told he would be required to satisfy a higher
500-point requirement before becoming entitled to bonus
payments could, conceivably, have derived from Curiel's
failure to report correctly, while functioning as
Thompson's translator, that Thompson merely "expected"
departmental "foremen" to make 500 points daily, but that
bonus payments would be contingent upon their consistent
satisfaction of the firm's regular 480-point requirement
merely. Alternatively, Lara-disturbed by President
Thompson's reprimand-may have misconceived the
thought which Thompson was trying to convey.)
Respondent's president testified, further, that Lara was
reprimanded for treating newly hired trainees harshly, for
"degrading" them, and for his "loud yelling" directed to-
ward them. However, Lara denied, initially, that Thomp-
son had lectured him with regard to "mistreating" fellow
workers. The testimony proffered by Respondent's several
witnesses , considered in totality, provides no substantial,
reliable, or probative record-within my view-which
would warrant a determination that Lara had actually been
guilty as charged. I am satisfied, however, that President
Thompson himself had seen Lara conversing vehemently,
once, with a particular metal department trainee, while
"yelling" and making vigorous gestures. Without determin-
ing whether his critical reaction could reasonably be con-
sidered justified, I find, consistently with Thompson' s testi-
mony, that he did reprimand Lara for such behavior
during their August 28 conversation. (During cross-exami-
nation, Lara-while declaring that a Regional Office res-
presentative had not "correctly" grasped or recorded his
prehearing report with respect to what Thompson said-
testimonially conceded that Thompson had told him, "that
[he] didn't have to be in front of the people entertaining
them or bothering them" while at work. With due regard
for its record context, I consider Lara's ultimate testimony
a concession that he was reprimanded, inter alia, for "both-
ering" fellow workers.)
Lara was told that, from that day forward, he would be
required to "observe [the] things" which he had just been
told. According to Thompson-whose testimony with re-
spect to their confrontation's conclusion stands, herein,
without dispute-Lara merely "stood there" and nodded
his head; however, mindful of Curiel's corroborative recit-
al, I conclude that Lara may have-further-promised to
remember Thompson's directive. In any event, Lara-so I
find-manifested no immediate resentment.
Lara, though he was, so he testified, quite "upset" fol-
lowing President Thompson's vehement lecture, returned
to work. Within an hour, however, he called for Curiel,
declared that "nobody, but nobody" would speak to him in
such a fashion, took off his gloves, dropped them where he
stood, and stated that on Friday, August 30, he would be
back for his check.
Shortly thereafter, Lara left for Mexico, pursuant to his
previously formulated plan. He never reported for work
thereafter. On September 11, following his return from
Mexico, he queried Curiel with regard to his right to claim
vacation pay. According to Lara, Curiel replied:
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You left, you left work. You had two days yet to make
your vacation, but, he said, I'm going to talk to Bill
so he can pay you half a week so you won't go to the
Labor Commission.
The record is silent, however, with respect to whether
Lara ever received a partial payment, calculated to cover a
portion of his conceivable vacation pay claim, consistent
with Curiel's suggestion.
(2) Conclusions
General Counsel's representative seeks a determination
herein that Lara was constructively discharged. His ratio-
nale, with respect thereto, can be recapitulated briefly. He
suggests that the so-called "tirade" which Respondent's
president directed against Lara reflected a "total reversal"
of management's disposition to consider him a valuable
and productive worker, previously demonstrated; that
Thompson's lecture was deliberately calculated to generate
"fear and outrage" within Lara, sufficient to prompt his
resignation then and there; that Thompson's motive for
harassing Lara derived from his hostility toward Lara's
union activity; that his harassment did, finally, persuade
Lara to resign; and that Respondent's discriminatorily mo-
tivated tactic should, therefore, be considered a construc-
tive discharge, violative of law.
General Counsel's contention-that "what otherwise
might appear to be bizarre conduct on Thompson's part"
really derived from antiunion considerations-rests, pri-
marily, on Maria Gonzalez' testimony; she purported to
recall a prior conversational declaration, chargeable to Cu-
riel, that Respondent's president had belatedly discovered
Lara's active union involvement, and had determined to
force his resignation. Specifically, Mrs. Gonzalez, while a
witness, testified : That on Sunday, August 25, Curiel, who
had previously been friendly with Jose Gonzalez, Sr., and
his wife, telephoned the latter, that he declared his desire
to tell her what was happening within Respondent's plant;
that he then mentioned Assistant Plant Manager Ostlund's
recent discharge; and that his telephonic declaration fur-
ther compassed the following report:
The next one to be fired is Francisco Lara. Mr.
Thompson found out that he was involved in the
Union things and he really regrets very much having
given the letter-work letter so that he could get his
papers but now he can't get it back, they can't take it
back. He is going to find a way in which he can make
him quit so that he won't have to hire him back.
According to Maria's testimony, she relayed Curiel's hear-
say report-with respect to President Thompson's pros-
pective ploy-promptly to Irma Lara, Francisco's wife.
The latter, while a witness herein, made no reference to
Maria Gonzalez' purported communication. Francisco
Lara's testimony, however, reflects his recollection, inter
alia, that his wife had communicated Maria's report.
Thus-with respect to General Counsel's contention that
President Thompson's so-called "abusive" treatment of
Lara had prompted the latter's resignation-he (General
Counsel) cites, within his brief, Lara's testimony that:
My wife told me that Maria Gonzalez had called her
. [We're] talking about why I left . . . Well, I didn't
have any other choice. I knew that they were going to
fire me . . . That day he approached me angrily, and
I thought, well, it's probably true that they're going to
fire me. That's when I left.
Substantially, therefore, Lara testified that his "quit" deci-
sion was prompted by President Thompson's angry state-
ments, which-mindful of his wife's recapitulation of
Maria's report, with respect to Curiel's hearsay communi-
cation-he construed as probative of Respondent's pur-
pose to discharge him or provoke his resignation.
With Maria Gonzalez' testimony regarding Curiel's com-
munication taken as datum-consistently with General
Counsel's contention-the present record, in my view, nev-
ertheless provides something less than sufficient support
for a determination that Lara was constructively dis-
charged. Assuming, arguendo, that Respondent's assistant
plant manager did-during a conversation with the Fresno
plant's former sewing room supervisor-describe the pur-
ported determination of Respondent's president to "find a
way" whereby Lara could be persuaded to resign, I con-
clude that Thompson's critical lecture-construed with
due regard for its context and content-did not constitute
a deliberate ploy calculated to render Lara's working con-
ditions intolerable, or to generate "fear and outrage" suffi-
cient to prompt his resignation, then and there. (In this
connection , I note-first-the present plant manager's de-
mal that he gave Mrs. Gonzalez a conversational report
regarding President Thompson's purported plan to force
Lara's resignation. Indeed, Curiel went further; while a
witness, he denied having spoken to Maria, with regard to
any subject whatsoever, following her July 4 discharge.
Since Mrs. Gonzalez' testimony-taken at face value-
purports to reflect a clear concession, proffered by a con-
ceded member of Respondent's management team, that
President Thompson was planning to provoke Lara's resig-
nation for statutorily proscribed reasons, the present plant
manager's testimonial denial , with respect thereto, raises a
credibility question. The conflict noted-which General
Counsel calls "direct and inescapable" within his brief-
could conceivably be considered critical. General
Counsel's representative has therefore cited record testimo-
ny, within his brief, which-so he contends-clearly re-
veals Curiel's self-contradictions and sometimes inconsis-
tent recollection, coupled with a narrative which reflects
his lack of fundamental honesty. Detailed findings, bot-
tomed upon General Counsel's presentation with respect to
Curiel's claimed witness-chair gaffes and demonstrated
lack of probity, would extend this decision-already too
long-unduly; suffice it to say that, persuaded by these
considerations, I cannot credit the present plant manager's
denial of Mrs. Gonzalez' testimony with regard to their
August 25 conversation. My conclusion that Maria's testi-
mony merits credence, however, connotes no favorable de-
termination with respect to her testimony's probative
worth. Within my view, Mrs. Gonzalez' recapitulation of
Curiel's vicarious "admission" cannot be considered sub-
stantial, reliable, or probative evidence with respect to
President Thompson 's state of mind, purpose, or back-
ground motivation, when Lara was being reprimanded.
CENTRAL CASKET CO. 389
Compare Ben Hur Produce, 211 NLRB 70 ( 1974) in this
connection . Her testimony reflects "double " hearsay;
clearly, Cunel's report-which purportedly recapitulated
President Thompson 's declaration of purpose-could only
have been bottomed upon some prior conversation with
Respondent's president . When a purported hearsay declar-
ant-herein , Respondent 's present plant manager-has, al-
legedly, proffered statements which merely recapitulate
someone else 's prior declaration , that hearsay declarant's
reportorial reliability , sometimes , must be taken on faith;
herein , however , Curiel's reliability has been trial tested.
With respect to several other matters about which he testi-
fied, I have credited General Counsel 's witnesses , rather
than his proffered recollections . Further , I have noted his
self-contradictions and lack of consistency , together with
his demonstrated readiness-in one specific instance-to
proffer a deliberate misrepresentation when he considered
such action necessary to compass a desired result . For the
very reasons , cited by General Counsel within his brief,
which have persuaded me that Cunel 's credibility , with re-
spect to various other matters, may reasonably be doubted,
I question the reliability of his hearsay report regarding
President Thompson's purported plan to stimulate Lara's
resignation.)
My conclusion-despite Mrs . Gonzalez ' report with re-
gard to Curiel's statements-that Thompson 's determina-
tion to reprimand Lara, personally , reflected no deliberate
tactic calculated to generate a resignation , rests upon sev-
eral grounds . First: I note that Lara was, during this late
August period , Respondent 's sole metal department work-
er with seniority , known experience , and proven proficien-
cy. (On May 30, when Complainant Union 's campaign be-
gan, there were nine metal department workers. Between
that date and July 9, Respondent hired one worker, but
sustained two terminations . On July 28 and 30, seven metal
department employees were separated from Respondent's
payroll under circumstances which need not be detailed;
certain voluntary comments , proffered herein by counsel,
suggest-but do not prove-that these seven workers may
have been taken into custody by U.S . Immigration Service
representatives , as presumptively illegal alien residents.
Following this massive depletion of Respondent's metal
department complement , Lara was the sole worker left. Be-
tween July 31 and August 26, nine new workers were hired;
two of these were , however , terminated within a short time.
By August 28, therefore , Respondent's metal department
crew consisted of Curiel , then the designated department's
head , Lara , and seven newly hired trainees.)
With matters in this posture , I consider it highly unlikely
that Respondent 's president would have undertaken , delib-
erately, to "engineer" his concededly most qualified
worker's departure . Second: The record , considered in to-
tality, reflects President Thompson 's previously favorable
disposition toward Lara particularly with regard to his
compensation and job tenure . He (Lara) had received two
June 1974 pay raises; concurrently with the second, he had
been given "training" responsibilities . Credible testimo-
ny-not previously noted within this Decision-reveals
that during the following month , while Curiel was on vaca-
tion , Respondent's president had sanctioned the payment
of three weekly bonuses, ($30), which Lara had claimed as
really earned , though departmental production records suf-
ficient to validate his claim could not be found . Further,
sometime during July 's latter days , Thompson had given
Lara a letter-for presentation to some United States con-
sular representative-declaring that he was currently in
Respondent 's hire , and that he would retain his position
for whatever period he (Lara ) desired should his United
States reentry, with legal immigrant status, be permitted.
The likelihood that President Thompson shared Curiel's
previously gained knowledge with regard to Lara 's union
sympathies , within my view , must be considered great;
with due regard for the present record, considered in totali-
ty, I conclude that he did , indeed , share his subordinate's
knowledge . Nevertheless , while presumptively knowledgea-
ble with respect to Lara's union involvement , Thompson
had previously sanctioned two hourly rate raises , together
with several weekly bonus payments specifically bottomed
upon his readiness to credit Lara's unsupported work that
such bonuses were deserved ; further , he had provided Lara
with a written declaration that his job tenure could be con-
sidered secure . Third: No persuasive evidence-proffered
to describe a supervening development during August 1974
which could have generated, within Respondent 's presi-
dent , some special animus focused upon Lara particular-
ly-can be found within this record . Fourth : President
Thompson 's critical lecture , in any event , cannot-reason-
ably-be considered , within my view , harassment or verbal
abuse sufficiently sharp to render Lara 's working condi-
tions intolerable . Compare Mary Pupillo d/b/a Marie An-
toinette Manufacturers, 193 NLRB 396, 397-399 (1971), in
this connection . He was merely told: (1) That complaints
or queries which he might wish to pursue should be pre-
sented first to his particular department head , rather than
supervisory personnel within a different department; (2)
that , when dealing with new , relatively inexperienced
workers, he should refrain from strongly presented verbal
chastisements, violent gestures , or comparable conduct
which might make such workers feel badgered , embar-
rassed, or intimidated ; and (3 ) that , should his personal
production-thereafter-fail to satisfy Respondent's nor-
mal daily 480-point production standard consistently, he
would no longer receive $ 10 weekly bonuses. True,
Respondent 's president may have, indeed , reprimanded
Lara vehemently ; his cautionary directives may, likewise,
have been grounded in some misconception with regard to
Lara's true production record or his in-plant behavior. The
record will not, however , support a determination-consis-
tent with General Counsel 's contention-that President
Thompson's lecture and directives were totally baseless,
contrived , or deliberately calculated to generate "fear and
outrage" sufficient to prompt Lara 's resignation . The sev-
eral behavioral standards which Respondent 's president di-
rected Lara to follow were consistent with sound manageri-
al practice ; with respect to production , Lara was told, so I
have found , that he would merely be required to satisfy a
generally applicable standard , prerequisite to his continued
receipt of weekly bonus payments . Compare Kisco Compa-
ny, Inc., 192 NLRB 899 ( 1971). Thompson 's requirements,
in my view , were neither unreasonable nor burdensome.
Further , this is not a case , like Tudee Products, Inc., 176
NLRB 969 , 972, 975 ( 1969), wherein pressures have been
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied, deliberately, bottomed upon a demonstrated oppo-
sition to unionism, and a purpose to retaliate against union
supporters. Fifth: When reprimanded, Lara-though he
may have protested that President Thompson's variously
professed concerns lacked factual justification-did not, so
far as the record shows, react fearfully, angrily, or resent-
fully while in Thompson's presence. The latter, however,
tried no further tactic reasonably calculated to provoke
Lara's resignation. He was not threatened with possible
discharge; President Thompson never even suggested that
his performance record, or compliance with managerial di-
rectives, would be closely monitored thereafter. Cf.
N.L.R B. v. Tennessee Packers, Inc, Frosty Morn Division,
339 F.2d 203, 204 (C.A. 6, 1964; Zinke's Foods, Inc, 185
NLRB 901, 905-907 (1970), in this connection. Thomp-
son's failure to press Lara, with suggestions of possible fu-
ture harassment, promises of surveillance, or threats of dis-
charge persuasively negates General Counsel's contention,
in my view, that his lecture constituted a calculated strata-
gem.
I reject, out of hand, General Counsel's supportive sug-
gestion-not previously noted in this Decision-that Presi-
dent Thompson's hostility toward Lara, because of the
latter's union sympathies, may be deduced retrospectively
from a subsequent declaration which he purportedly made
to Lara's wife, that Francisco had been denied his vacation
pay, inter alia, because he had signed Complainant Union's
designation card, and had likewise distributed union cards.
(When summoned as General Counsel's final rebuttal wit-
ness, on the very last day of the reopened hearing herein,
Mrs. Lara testified: That during September 1974 several
days after Lara's departure for Mexico, she had asked
President Thompson why her husband had not received his
vacation check; that Thompson had declared Francisco
had not been paid, "because he had left, and that Lupe
[Curie]] had reported that he had made his points [sic] and
that he [Francisco] had signed a union card" and likewise
distributed union cards. Mrs. Lara had then queried
Respondent's president-so she testified-with respect to
why he was taking reprisal against Francisco Lara solely
when Curiel, together with "all the other" women workers,
had been at Complainant Union's meeting; she purported-
ly recalled Thompson's reply that he "knew all about" the
situation.)
Careful consideration-bottomed upon Mrs. Lara's wit-
ness-chair demeanor, plus a detailed record review-per-
suades me that her last minute testimony, with respect to
the matter now in question, reflects merely a belated fabri-
cation. The testimonial record shows that Mrs. Lara had
spoken with Regional Office representatives- presumably
for the first time-on November 19, following her discov-
ery that she herself had been terminated. When asked,
while a rebuttal witness herein, whether she had then told
Michael Gonzales, a Regional Office representative-
whose capacity to speak and comprehend Spanish seems to
be conceded-what President Thompson had previously
said to her, during their September talk regarding her
husband's vacation check, Mrs. Lara declared, "I believe I
told him [Michael Gonzales] everything that had hap-
pened." Her initial witness-chair appearance, thereafter, on
December 4, 1974, followed a recess during the first hear-
ing. Before taking the witness stand, she had, so the record
shows, conferred, once more, with General Counsel's legal
representative. Her testimony with regard to their Decem-
ber 4 conference-proffered during cross -examination
while she was testifying as General Counsel's final rebuttal
witness-followed a question by Respondent' s counsel spe-
cifically with respect to whether she had, then, told General
Counsel 's representative about her prior September con-
versation with Respondent's president. When so queried,
Mrs. Lara replied that, "I told them. [General Counsel's
representative and his interpreter.] When I talked to them,
I told them everything that had happened, all about me."
The present record nevertheless shows that Mrs. Lara,
when she subsequently took the witness stand for the first
time on December 4, was never questioned about her prior
September 1974 conversation with President Thompson;
further, it shows that she volunteered no testimony with
respect thereto. With matters in such a posture , I can mere-
ly conclude that-while telling everything-she then had
nothing to report about a September conversation with
Respondent's president. I note, further, that Mrs. Lara's
final testimony in rebuttal-wherein she belatedly purport-
ed to recapitulate President Thompson's September refer-
ence to her husband's production "point" record-reflects
a disconnected, nonrelevant remark, which Respondent's
president would hardly have been likely to make within the
context of their purported conversation. Likewise, I note
Lara's testimony that-following his return from Mexico-
he himself had had a September 11 conversation with Cu-
nel, during which he had questioned the latter regarding
his failure to receive a vacation check. If Mrs. Lara had
previously been given three stated reasons for Re-
spondent's decision to withhold the check, her husband
would presumably have been told, following his return,
about Thompson's comments; thereafter, Francisco Lara's
September 11 query would have been repetitive and super-
fluous. Finally, I find that Respondent's president would
hardly have been likely to concede-with unfair labor prac-
tice charges pending-that any decision chargeable to him
had been motivated by a worker's union sympathies. I con-
clude, therefore, that Mrs. Lara's purported last-minute
recollection-with respect to President Thompson's con-
ceded knowledge of her husband's union activities, and his
presumptive antiunion motivation for withholding a vaca-
tion check-merits no credence.
One final word: With respect to Lara's conceded resig-
nation, General Counsel's final contention, previously not-
ed, derives from a relatively straightforward rationale. He
has suggested-within a brief-that:
[T]his case depends upon whether Respondent's har-
assment of Lara was motivated by a hostility toward
Lara's Union activity. If Respondent's treatment of
Lara was so motivated, and Lara was prompted to
quit as a result of that harassment, then it follows that
Respondent's discriminatory tactics amounted to a
constructive discharge. . . .
Previously within this decision, however, I have found:
First, that record testimony-which I have considered sub-
stantial , reliable , and probative-will not support a deter-
mination that President Thompson's decision to reprimand
CENTRAL CASKET CO. 391
Lara derived from hostility, or from some purpose of repri-
sal, bottomed upon his union sympathies. Second, that
President Thompson's critical lecture-though presumably
delivered with some vehemence-cannot, reasonably, be
considered "harassment" herein , since his directives, taken
at face value , were consistent with sound managerial prac-
tice, or suggested-merely-that Lara could lose bonus
payments, thereafter, should he fail to satisfy a generally
governing production standard. With these factual deter-
minations taken as data, the fact that Lara's reaction to
Thompson's lecture may have prompted his resignation
provides no persuasive justification for calling that
lecture 's consequence a constructive discharge.
General Counsel's presentation, however, does suggest a
further contention-that Lara, mindful of Curiel's report
with respect to President Thompson's purported plan to
force his resignation , could reasonably have construed
Thompson's lecture as calculated "harassment" which
presaged his discharge, and that his (Lara's) logically con-
sequent "fear and outrage" prompted his quit. However,
this suggestion-that Lara's subjective personal reaction to
President Thompson's August 28 directives, bottomed
upon Mrs. Lara's hearsay report with respect to what Assis-
tant Plant Manager Curiel had told Maria Gonzalez previ-
ously, would warrant a Board determination that he quit
because his position had been rendered intolerable-fails
to persuade. Compare Franklin Stores Corporation and its
Wholly Owned Subsidiaries, Barkers of Willimantic, Inc.,
and Barkers of Wallingford, Inc., 199 NLRB 52, 61-63
(1972) (Paulette Lucas), in this connection. Although
Curiel's statement , purportedly descriptive of Thompson's
purpose to force Lara's resignation, certainly could reason-
ably have been considered a vicarious "admission" by a
management representative , chargeable to Respondent
herein-whether or not the company president 's intentions
had been described therein correctly-Lara's concededly
subjective determination, that his department head's re-
layed comments "probably" presaged his discharge , cannot
be considered warranted. First- It should be noted that
Lara learned of Curiel's declaration indirectly, through a
chain of hearsay reporters, rather than directly-himself-
from Respondent 's assistant plant manager . Thus, Lara's
presumptive belief-that his wife's final recapitulation had
correctly reflected Curiel's prior declaration with respect to
Respondent's retaliatory purpose-could only have been
derived from his personal faith and trust regarding her re-
portorial reliability; without persuasive proof, however,
that Curiel's declaration had been twice correctly recapitu-
lated, by Maria Gonzalez and later by his wife, Lara's
claimed "knowledge" that Respondent's management rep-
resentatives were currently planning his "discharge" can
hardly be considered warranted. Second- In that connec-
tion I note-further-that Lara's testimony, taken at face
value, actually reflects his prejudicial misconstruction of
Curiel's purported declaration. According to Mrs. Gonza-
lez' recollection, which I have credited against Curiel's de-
nial, Respondent's assistant plant manager had merely re-
ported that Thompson was "going to find a way in which
he can make [Francisco Lara] quit" whereby the latter's
possibly consequent reinstatement could be forestalled.
While a witness , however, Lara declared his belief, based
upon what he had heard , that "they [Respondent's man-
agement representatives ] were going to fire" him. Subjec-
tive reactions bottomed upon such a serious misconception
could not-in my view-transform President Thompson's
August 28 reprimands and cautionary directives regardless
of the vehemence with which they may have been prof-
fered , into calculated "harassment" statutorily proscribed.
f. Margaret Huerta
(1) Recall and discharge
Previously within this Decision reference has been made
to the fact that Huerta, following her July 10 layoff, togeth-
er with Norma Flores, filed 8 (a)(1) and (3) charges against
Respondent herein on July 16. (Subsequently-following
the Regional Office filing of Complainant Union's August
26 amended charge wherein Huerta and Flores were desig-
nated as 8(a)(3) discrimmatees together with others previ-
ously terminated-the former's separate July 16 charge
was withdrawn.)
When Huerta thereafter visited Respondent's plant, pre-
sumably on Friday, July 19, to collect her final paycheck,
she purportedly noticed-so her testimony shows-that
Respondent had a new "Anglo-Caucasian" worker per-
forming various trim department tasks. When queried with
regard to her reaction, Huerta testified that she had filed a
complaint of employment discrimination with the State of
California Fair Employment Practice Commission. Her
credible testimony with respect thereto, inter aka, reads:
First, when I saw that guy working there in my depart-
ment where I was working and then my husband told
me later that they had hired white people. And I inves-
tigate what I could do about it. And Norma and I, we
went to the office and we went to the wrong office. They
told us where to go . . . And they give us that office
where we went [emphasis supplied].
Within her FEPC complaint, which the State Commission
docketed on Friday, July 19, Huerta charged Respondent
with a discriminatory layoff or termination, bottomed
upon her Mexican ancestry. Flores likewise filed a charge.
The State Commission interviewer, presumably, drafted
hers with precisely parallel language; Flores' charge, how-
ever, was not really docketed until Tuesday, July 23, be-
cause of circumstances never detailed for the present rec-
ord.
Thereafter, on Friday, August 23, Huerta again visited
Respondent's Fresno plant, presumably-so she testified-
to pick up her husband's paycheck. Respondent's presi-
dent, then, handed her a letter-which he had previously
prepared for dispatch by registered mail-requesting her
return to work. Huerta promptly agreed. Subsequently,
however, she notified Respondent that a prior commitment
would preclude her return on Monday, August 26; with
permission , she resumed work in Respondent 's sewing
room the following day.
Previously, sometime during Thursday or Friday, Au-
gust 22 or 23, President Thompson had-so I find-confer-
red with Rachel Borunda, who had replaced Maria Gonza-
lez as Respondent 's sewing room supervisor , regarding his
determination that Huerta and Flores should be recalled.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to their conversation, particularly regarding
Huerta's recall, Borunda's testimony, which I credit in this
connection, reads as follows-
Q. [By Mr. Koslow] Let's take Margaret first. Did
you have a conversation with Mr. Thompson about
Margaret?
A. Yes .. .
Q. Could you tell us what was said in the conversa-
tion?
A. Yes. He wanted to have Margaret fired, and he
wanted me to find a way-he wanted me to find fault
with her, and I said, "Okay."
Q. Did he give you any explanation?
A. Yes, because she had filed a suit against him for
discrimination for being laid off before.
Q. [By Mr. Magor] In your direct examination you
testified that Bill Thompson told you that Margaret
had filed a suit against him, do you recall that testimo-
ny?
A. Yes, I do . . . .
Q. Were you aware of the fact that both Margaret
Huerta and Norma Flores had filed a complaint of
unemployment discrimination with the State of Cali-
fornia?
A. Only of Margaret, not Norma ... .
Q. You did talk to an investigator of the Fresno
office of the Fair Employment Practices Commission,
did you not, with respect to that complaint?
A. Yes .. . .
Q. Did he tell you that Margaret had complained
that she was discharged because she was Mexican?
A. Yes ... .
Q. [By Mr. Magor] Did you ever discuss the fact
with Bill Thompson that Margaret had filed this com-
plaint with the FEPC?
A. Did I ever discuss it [?] [It] was dust what he told
me.
Q. Did he tell you the charge was ridiculous be-
cause everybody working there except you [sic] was
Mexican?
A. That is what he told me.
Borunda's further testimony warrants a determination-
which I make-that during their conversation President
Thompson likewise showed her a document, briefly, which
he verbally designated as Huerta's FEPC complaint.
While a witness, President Thompson conceded that-
during their conversation, when Borunda was told Huerta
would be recalled-he had, inter alia, mentioned Huerta's
FEPC suit, which he had characterized as ridiculous. Fur-
ther, he conceded that Borunda had then been directed to
"watch [Huerta's] work" closely, to determine "how she
was fitting in" with Respondent's organization. He denied,
however, that Respondent's sewing room supervisor had
been told to "find fault" with Huerta's work, or that she
had been directed to discharge Huerta for any reason.
Within my view, Thompson's testimony-so far as it may
contradict or deviate from Borunda's reluctantly proffered
recollections-merits no credence.
On Friday, August 30, during her third day back at
work, Huerta was notified of her discharge by
Respondent's sewing room supervisor. While a witness,
Borunda professed a partial failure of recollection with re-
gard to their final conversation. However, Huerta's testi-
mony with respect thereto, which I credit, reads as follows:
She [Rachel Borunda] went up to me. I was in the
cutting room. She said: Margaret, she say, you're
fired. And I thought, at first, that she was joking. I
said: Why? She said: You're fired. I said: Well, what
reason? She said: You're slow. And then, I ask her:
Who told you to fire me? Did Mr. Thompson tell you
to fire me? She said: Yes. And I said: Why? I cannot
answer you any more questions, she said, that's all.
And she turned around and walked out.
According to Huerta, Borunda had previously told her-
during a breaktime conversation following her recall, with
two other seamstresses present-that she [Huerta] was
going to be discharged; Borunda-so Huerta testified-
had claimed, however, that she did not know when such
action would be taken. Further-so Huerta testified-her
supervisor had reported: That Respondent proposed to
"do the same thing" with Florea, rehiring and then dis-
charging her; that she [Borunda] did not know why such
action was being taken; but that Flores would shortly be
receiving a registered recall letter.
While a witness, Borunda could not recall such a pre-
discharge conversation. With due regard for the record
considered in totality, I would, if it were necessary, find
Huerta's recapitulation of Borunda's predischarge com-
ments worthy of credence. Since Huerta's testimony in this
particular connection, however, provides no "essential un-
derpinning" for whatever factual determinations may here-
in be required no definite conclusions with respect thereto
need be drawn
(2) Conclusions
President Thompson claims that Huerta was discharged
by Respondent's sewing room supervisor-pursuant to a
decision which the latter had, herself, reached-because,
following her recall, the seamstress had not performed ade-
quately. Denying that he had ever directed Borunda to find
some purported or pretextual ground for Huerta's termina-
tion, Thompson declared that he had merely requested his
sewing room supervisor to "watch" the seamstress, follow-
ing her return.
Upon this record, however, a determination seems clear-
ly warranted that Respondent's presently proffered justifi-
cation for Huerta's discharge merits characterization as
pretextual; I so find, for several reasons. First: Huerta tes-
tified, credibly and without contradiction, that she had re-
ceived no reprimand or warning, with respect to her work,
before her termination. Second: While a witness, Borunda
did claim that she had proffered a nondetailed derogatory
report, with regard to Huerta's performance, during a con-
versation with Respondent's president. She did not testify,
however, that Huerta's work had actually deteriorated; nor
did she testify that Huerta had, been failing to satisfy
Respondent's presumptive production standards. Mindful
CENTRAL CASKET CO. 393
of Borunda's failure to proffer such claims, I find-consis-
tently with General Counsel's contention-that, when she
allegedly reported to President Thompson that Huerta was
not "cutting it" with respect to work performance, she was
simply complying with his prior directive, instructing her to
"find fault" with Respondent's newly recalled seamstress.
Third: Respondent's president has claimed-con-
trariwise-that he merely suggested Borunda should watch
Huerta's work, declaring that her supervisorial decision
with regard to Huerta's performance, and continued ten-
ure, would be determinative. Assuming, arguendo, that this
was what he said, I would find Thompson's purported di-
rective-which clearly conveyed a suggestion that Huerta
should, from the outset, be singled out for close supervi-
sion-wholly incompatible with his further testimonial
concessions regarding her previously demonstrated profi-
ciency and prior work record. With respect thereto,
Respondent's president testified:
Margaret was an exceptional seamstress. She could do
more work than any other employee in that sewing
room. She was much better than Irma Lara; she was
faster and more skilled than Delores Conde; and she
was much more intelligent than Maria Gonzalez. She
was a very capable person . . . . Now, with Margaret
Huerta, we have an employee who was very, very ca-
pable, who understood the jobs and was a seamstress
15 years before she came to work for us. So she knew
these jobs as a seamstress and she picked up casket
work very, very well.
Since Respondent's president, concededly, held such a high
opinion with respect to Huerta's capabilities, a suggestion
by him, a priori, that her work performance should be
closely checked, merely for the purpose of determining
whether she was "fitting in" with Respondent's organiza-
tion, would have been completely gratuitous and lacking in
rational justification; as previously noted, I conclude that
Thompson's denial-with respect to Borunda's testimony
that she was really directed to find some "fault" with
Huerta's work, sufficient to justify a discharge, merits no
credence. Fourth: Irma Lara was the sole witness, herein,
whose testimony reflects direct observations with respect to
Huerta's performance. In that connection, she testified, (a)
that she had been a seamstress in Respondent's hire
throughout Huerta's dual period of service; (b) that her
work station had been close to Huerta's, so that she could,
and did, regularly observe the latter's performance; (c) that
she had, particularly, noted Huerta's work because she was
proud of her own speed as a seamstress, and had deliber-
ately sought to match Huerta's pace, and (d) that Huerta
had-both before her July 10th termination and during her
postrecall period of service-worked "very" rapidly, with
her fellow seamstresses "hurrying to keep up" comparable
performance records. Though I have-previously in this
Decision-suggested some reservations with regard to Mrs.
Lara's credibility, her testimony's reliability, in this partic-
ular connection, has not been challenged or disputed.
Fifth: Assistant Plant Manager Rodriguez and Valerie
Massengale, Respondent's plant secretary, both testified
that they had separately questioned Borunda, repeatedly,
with regard to Huerta's performance, following her recall,
and that Borunda had characterized Huerta's work as less
than satisfactory. Their testimony provides further support
for my determination, noted, that Respondent's presently
claimed justification for Huerta's discharge merits rejection
as pretextual. Consistently with General Counsel's sugges-
tion, I find it highly "improbable" that Massengale, who
functioned solely in clerical capacities, with no supervisory
responsibility, had any right or legitimate reason to inquire
with regard to a sewing room worker's daily performance.
And Rodriguez' persistence in questioning Borunda, like-
wise, persuasively suggests that she was merely implement-
ing a ploy calculated to buttress Respondent's subsequent-
ly claimed rationale for Huerta's termination. (During this
period, following Respondent's dismissal of Jose Gonzalez,
Sr., President Thompson had been functioning as his firm's
Fresno plant manager. Whenever his varied business inter-
ests, however, had precluded his physical presence within
Respondent's Fresno plant, Rodriguez had been function-
ing as his designated surrogate. Curiel, who was subse-
quently designated Respondent's plant manager, did not
receive his promotion, formally, until some time during
October, thereafter.)
Rodriguez proffered no explanation when queried-
while a witness-with respect to why she had questioned
Borunda regarding Huerta's performance, particularly, but
had raised no comparable questions relative to the perfor-
mance records of Respondent's other sewing room work-
ers. A conclusion seems clearly warranted, therefore, that
Rodriguez' and Massengale's queries were actually calcu-
lated to prod Borunda, reminding her to proceed with her
required role in President Thompson's pretextual "dis-
charge" strategem; I so find.
Previously I have, however, found that Respondent's
president harbored no particularized "animus" directed to-
ward Huerta, because of her participation in Complainant
Union's representation campaign. Therefore, assuming, ar-
guendo, that he may have been personally disturbed by
Huerta's July 16 8(a)(1) and (3) charge, I cannot follow
General Counsel's presumptive contention that, ergo, her
rehire and subsequent discharge derived from a purpose of
reprisal, bottomed upon her unfair labor practice charges.
Huerta had previously been separated, pursuant to a re-
duction in force. Her recall and final termination-for a
patently pretextual reason-could hardly have been calcu-
lated to buttress Respondent's previously defined and pre-
sumptively valid defense, particularly with reference to her
July 10 layoff.
I am satisfied, however, that Huerta was really recalled
and promptly terminated, pretextually, because of her pro-
tected concerted activity, when Flores and she jointly, filed
State of California FEPC charges. Respondent's president
conceded as much-substantially-when, as I have found,
he coupled a reference to Huerta's state complaint with his
directive that Borunda should "find fault" with Huerta's
work, following her recall. (Since Respondent's work force,
throughout this period, had compassed Spanish-surnamed
workers, primarily, Huerta's and Flores' complaints of dis-
crimination for ethnic reasons may well have been base-
less; nevertheless, Respondent's president, so I find, pat-
ently considered a countermeasure, reasonably calculated
to forestall the possibility of some adverse state determina-
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, necessary. Clearly, Huerta's putative recall following
her July 10 layoff, coupled with her subsequent termina-
tion for purported slowness, would be reasonably calculat-
ed to defuse and demolish her state claim, that she had
previously been subjected to discrimination because of her
Mexican ancestry.)
Whenever a Respondent's true motive for a challenged
discharge must be determined-which, in this case, would
require the probing of President Thompson's state of
mind-direct evidence which is not self-serving will seldom
be available. In such cases, self-serving declarations by
management representatives can hardly be considered
conclusive; triers of fact, therefore, may "infer" their true
motives from the total circumstances proved. Shattuck
Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470
(C.A. 9, 1966). As Circuit Judge Duniway noted therein:
If [the Trial Examiner-now Administrative Law
Judge] finds that the stated motive for a discharge is
false, he certainly can infer that there is another mo-
tive. More than that, he can infer that the motive is
one that the employer desires to conceal-an unlawful
motive-at least where, as in this case, the surround-
ing facts tend to reinforce that inference.
In this case, then, I find General Counsel's suggested "al-
ternative" contention-that Huerta's termination was ex-
clusively a consequence of her having filed a State of Cali-
fornia FEPC complaint-fully warranted, upon the present
record.
That Huerta and Flores were engaged in conduct "for
the purpose of . . . mutual aid or protection" when they
jointly determined to file their state complaints cannot be
doubted. Advance Carbon Products, Inc., 198 NLRB 741
(1972); cf. Washington State Service Employees State Coun-
cil No. 18, etc., 188 NLRB 957, 959 (1971); Mason and
Hanger-Silas Mason Co., Inc., 179 NLRB 434, fn. 1 (1969);
Tanner Motor Livery, Ltd., 148 NLRB 1402, 1403-04
(1964), remanded 349 F.2d 1 (C.A. 9 (1965) ), reaffd. 166
NLRB 551, enfd. 419 F.2d 216, 218 (C.A. 9, 1969), in this
connection. Likewise, a determination that Huerta and
Flores were, jointly, pursuing a concerted "activity" statu-
torily protected cannot be gainsaid herein. Advance Carbon
Products, Inc., supra, Mason and Hanger-Silas Mason Co,
Inc., supra at 439-440; cf. Detroit Forming, Inc., 204 NLRB
205, 212-213 (1973); Gates Air Conditioning, Inc., 199
NLRB 1101 (1972); Walls Manufacturing Company, Inc.,
128 NLRB 487 (1960), remanded on other grounds 299
F.2d 114 (C.A.D.C., 1962), 137 NLRB 1317 (1962); Texas
Natural Gasoline Corporation, 116 NLRB 405, 406, 414
(1956), enforcement denied 253 F.2d 322 (C.A. 5, 1958).
See further, Oklahoma Allied Telephone Company, Inc., 210
NLRB 916, fn. 1 (1974) (last paragraph), in this connec-
tion. The fact that Huerta and Flores may have been press-
ing mentless claims provides Respondent with no exculpa-
tion. In Mushroom Transportation Co., Inc., 142 NLRB
1150, 1158 (1963), this Board noted that:
The "wisdom or unwisdom of the men; their justifica-
tion or lack of it" N.L.R.B. v. Mackay Radio and
Telegraph Co., 304 U.S. 333, 334), is irrelevant to the
question of whether employees are engaging in pro-
tected concerted activity. N.L.R.B. v. Washington Alu-
minum Co., 370 U.S. 9, 16.
Thus, without regard for whatever plans Respondent's
president may have been making directed toward Flores'
prospective recall and possible termination, I find that
Huerta's August 30 discharge, following her rehire 4 days
previously, constituted proscribed interference , restraint,
and coercion, bottomed upon her prior exercise of rights
statutorily guaranteed.
g. Irma Lara
(1) Mrs. Lara's discharge
Irma Lara had been a seamstress in Respondent's hire
since September 7, 1973; when the situation with which we
are concerned herein developed , she was Respondent's se-
nior sewing room worker.
Like her husband , Francisco , Mrs. Lara had favored
Respondent 's unionization ; she had attended Complainant
Union 's May 30 Roeding Park meeting , and had signed a
designation card there . Likewise , she had been present dur-
ing Complainant Union 's subsequent June 27 meeting at
Jose and Maria Gonzalez' residence . (Kathleen Rodriguez
and Rachel Borunda, who later became Respondent's trim
department manager and sewing room supervisor, re-
spectively , had likewise attended Complainant Union's
first Roeding Park meeting . Curiel , then Respondent's met-
al department manager , had concededly visited with Jose
Gonzalez , Sr., while Complainant Union's business repre-
sentative was meeting with Respondent 's workers on Gon-
zalez' patio; while there , he had-so I find-seen Mrs.
Lara , and had greeted her .) Mrs. Lara's testimony-which
I credit in this connection-reveals further that, while
Complainant Union 's representation campaign was in
progress , she had "often" spoken about Complainant
Union with Rachel Borunda , together with her fellow sew-
ing room workers.
Sometime during September and October 1974, follow-
ing the Regional Director's decision to declare the result of
Complainant Union 's August 23 representation vote void,
but while Complainant Union 's charges herein were still
being investigated , Respondent 's president had several
conversations with Massengale , who was then his Fresno
plant secretary , during which Irma Lara 's name was men-
tioned . With respect thereto, Massengale, whom Respon-
dent had subsequently discharged several months before
the reopened hearing herein convened , testified as follows:
Delores Conde had filed a suit against us saying
that she deserved a week 's worth of vacation pay, and
it was [rumored?] when we were in the plant that Irma
Lara had pushed Delores into filing the suit, and we
were discussing it in the office , and Bill [Thompson]
said that it looked like Irma was going to be a real
troublemaker.
Q. Did you ever hear any Central Casket manage-
ment official discuss Irma Lara's involvement with the
Upholsterers Workers union , or any other union?
A. Yes . . . Bill Thompson . . . It seems like it was
in October . . . Well, I was talking to him about how
CENTRAL CASKET CO. 395
it seemed like every rumor that circulated through the
company started out in the sewing room . And he said
that he had never seen a casket company where the
sewing room wasn 't the main bit of gossip. And he
said that if the union ever did start again at Central
that it would come out of the sewing room , probably
from Irma Lara, Delores Conde.
President Thompson , when queried with respect to these
matters, conceded that sometime during 1974's fall
months, Delores Conde had indeed initiated proceedings
before the State Labor Commissioner , claiming a week's
vacation pay; that he had been "aware" there was "some
sort of a rumor" that Conde had possibly been "pushed"
by Mrs. Lara to initiate such proceedings ; that Curiel had
"handled the matter" for Respondent herein ; and that he
[Thompson ] had, at some time , told Massengale Mrs. Lara
was going to be a real troublemaker . (While a witness,
Thompson declared, however, that his fall of 1974 charac-
terization had "probably" been bottomed upon his recol-
lection regarding a previous July conversation with Mrs.
Lara during which she had blackguarded Cunel , describing
him as responsible for Respondent 's union problems and
calling him a poor departmental manager ; Respondent's
president further proffered a witness -chair speculation that
he had "proceeded to assume" comparable conduct, by
Mrs. Lara, would continue.)
Further , President Thompson conceded that , sometime
during September or October 1974, he had commented to
Massengale that casket factory rumors always seemed to
start in their sewing departments ; that "gossip or rumors"
would flourish wherever employees desired unionization;
and that , should rumors start in Respondent 's sewing
room , Mrs. Lara or Conde would "probably" be responsi-
ble.
Following the conclusion of her Friday , November 8
workday, Mrs. Lara left the Fresno area , bound for Mexi-
co; she believed then-so the record shows-that she
would be gone for a week . According to Mrs. Lara, she
had-sometime during October's last week-requested and
received permission from Borunda , Respondent 's sewing
room supervisor , for a week 's leave of absence . (The record
warrants a determination -which I make-that Mrs. Lara
had previously taken a week 's vacation with pay, following
the completion of her first year 's service . Since her Novem-
ber departure, therefore , would presumably involve a fur-
ther week 's leave , without pay, management 's permission
was required . Mrs. Lara's testimony that Borunda granted
the requisite permission-though proffered during the re-
opened hearing herein when Borunda was no longer in
Respondent's hire-stands without dispute . Curiel's testi-
mony warrants a determination-which I make-that
Respondent 's department heads were authorized to grant
workers a week 's leave, upon request.)
Mrs. Lara testified, further, that on Monday , November
4, she had likewise requested and received Curiel's permis-
sion for her projected leave. The record , considered in to-
tality, provides collateral support for Mrs. Lara 's testimony
that Respondent's newly designated plant manager had
given her the requisite permission; I find that he did. (I
have noted that Curiel 's testimony, in this connection, re-
flects considerable vacillation . At one point , he conceded
that Mrs. Lara had requested permission for a week's
leave , but claimed he had told her he would have to check
with Respondent 's Oakland headquarters . While a witness,
however , he could not recall whether he had , indeed,
checked with Respondent 's headquarters representative;
he further claimed that he had never given Mrs. Lara a
firm "yes" or "no" reply. Previously , during his direct testi-
mony, Cunel had initially denied that Mrs. Lara had ever
discussed a Mexican trip with him; then he recalled that
she had once done so. Having so testified , he first professed
a failure of recollection , nevertheless with respect to wheth-
er Mrs. Lara had, during their talk, reported a prior discus-
sion with Borunda regarding her request for leave ; subse-
quently, he declared categorically that Mrs. Lara had never
told him she had spoken with Borunda , or that
Respondent 's sewing room supervisor had given her per-
mission to go. Finally, during cross-examination , Cunel re-
iterated his testimony that Mrs. Lara had indeed requested
a week 's leave , but then went on to declare that she had not
stated where she wished to go. With matters in this posture,
Mrs. Lara's proffered recollections , previously noted, have
been credited.)
Sometime after Mrs . Lara's request for leave , but before
she departed, Curiel and Respondent 's president discussed
her request ; Massengale was present . While a witness dur-
ing the reopened hearing herein , Respondent 's former
plant secretary testified with respect thereto as follows:
Well, Lupe told Mr. Thompson , Bill, about Irma
wanting to go to Mexico for a week; and Bill thought
on it for a minute and then he said "Well, tell her that
when she returns from Mexico the company would
consider rehiring her. Of course , we won't."
Massengale testified further that , during a subsequent No-
vember 8 conversation with Curiel in the Fresno plant's
office , the latter had requested her to refresh his recollec-
tion with respect to what Mrs. Lara should be told. Ac-
cordingly to Respondent 's plant secretary , she had recapi-
tulated Thompson's full comment , previously noted, which
Curiel had thereupon acknowledged.
Testifying in Respondent 's behalf , Cunel conceded that
he had indeed had a conversation with Massengale , during
which he had requested Respondent 's plant secretary to
repeat what President Thompson had previously told him
to say. When queried with regard to Massengale 's reply,
however, Curiel made no direct response . He merely prof-
fered a witness -chair recollection wherein he recapped
what President Thompson had purportedly told him direct-
ly-namely, that , should Mrs. Lara leave pursuant to her
personal decision , Respondent would "consider" her re-
hire . With due regard for Curiel 's seeming evasion and pro-
fessed lack of further recollection , I find Massengale's tes-
timony-with regard to both the Thompson -Curiel and
Curiel-Massengale conversations recapitulated herein-
worthy of credence.
On Tuesday , November 12, Respondent sent Mrs. Lara
a letter by certified mail; she was advised therein that if she
did not return to work with a sufficient "medical" reason
for her absence by Friday, November 15, she would be
terminated . Mrs. Lara did not, however , see the letter dur-
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the calendar week within which it was dispatched, since
she was then out of the country. (Plant Manager Cunel,
who signed the letter, testified that when he discussed its
preparation and dispatch with Respondent's president they
never considered the possibility that Mrs. Lara's reply, or
her return to work by November 15, might not be possible.
The record shows that Postal Service deliveries, with re-
spect to Respondent's letter, were attempted both on No-
vember 14 and 22, but met with no success; the letter was
not "picked up" by Mrs. Lara until November 29.)
Respondent's president-summoned by General Coun-
sel when the reopened hearing herein convened-initially
testified that he had not seen the November 12 letter now
in question until a week or more following its preparation
and dispatch. He denied authorship with respect to the let-
ter; further, he denied any participatory role whatsoever
with respect to its preparation. Finally, he testified that
Mrs. Lara had already been terminated before he saw the
letter. Later, however, when questioned by Respondent's
counsel, Thompson professed a revived recollection; he
conceded that, before the letter was sent, he had raised a
query with respect to whether it had been dispatched-and
that he had, in fact, read the letter and directed that it be
modified, by the insertion of the word "medical" between
the word- "sufficient reason" which the letter then con-
tained.
When asked whether he had told Respondent's plant
secretary-while directing her to revise the letter in ques-
tion-that he knew Mrs. Lara would not have a medical
reason for her absence, Thompson conceded that he had
done so.
Mrs. Lara was in Mexico from November 9 through
Monday, November 18. She returned, prepared to resume
work, on Tuesday, November 19, which happened to be
the date on which the original hearing in this case was first
convened. (The record shows-as previously noted-that
Mrs. Lara had sought, and believed that she had received,
permission to be absent for 1 week, merely. However, pur-
portedly because of problems connected with her motor
car's condition, and because of delays encountered with
respect to the processing of certain "papers" which had
presumably motivated her trip, she could not return on
schedule. Her testimony warrants a determination, which I
make, that she sent word, with regard to her probably de-
layed return, to Respondent through Pedro Banuelos, the
firm's glue department supervisor, whom she had encoun-
tered by happenstance that weekend. Banuelos, however,
never delivered Mrs. Lara's message. The fact that she had
missed a day's work, however, does not appear to have
been significant with respect to her termination; I have
concluded, consistently with General Counsel's contention,
that Respondent's management had already taken steps
deliberately calculated to generate a ground for her dis-
charge on November 12, when Curiel's letter was prepared
and dispatched.)
Upon her return, Mrs. Lara noticed that her timecard
was missing . She asked Borunda whether she had been
discharged; the latter professed a lack of knowledge and
referred her to Respondent's plant secretary. Later that
day, Massengale, with Borunda functioning as her inter-
preter, told Mrs. Lara that she had been terminated. She
was directed to consult with Curiel, to learn the reason for
her termination.
Her subsequent conversation with Respondent's plant
manager directly outside the courtroom within which this
case was then being heard-which provided Mrs. Lara
with no definitive word relative to Respondent's rationale
for her discharge-has been noted previously.
Conclusions
Upon this record, a determination seems clearly war-
ranted-consistently with General Counsel's contention-
that Respondent's proffered rationale for Mrs. Lara's
dismissal merits rejection as pretextual. The claim that she
was terminated-specifically-because of her week's ab-
sence from work, without permission and without a suffi-
cient "medical" justification, simply cannot stand.
Mrs. Lara was, so the record shows, given "permission"
for a week's leave; Respondent's plant manager and Mrs.
Lara's immediate supervisor further knew-so I find-that
she had requested leave because she was planning a Mexi-
can trip. (Alternatively- assuming , arguendo, that record
proof with respect to Borunda's and Curiel's specific
grants of permission could not be found -determination
would still be warranted, in my view, that Mrs. Lara was
given "reason to believe" she had such permission. Neither
Borunda nor Curiel had warned or cautioned her that her
prospective "absence" from work would be considered un-
authorized; neither had protested, or sought to proscribe,
her departure.)
When apprised with respect to Mrs. Lara's projected
trip, however, Respondent's president-so the record pre-
ponderantly shows-conceived a stratagem pursuant to
which her termination could thereafter be effectuated. Cu-
nel was directed to inform her that, following her return,
Respondent would "consider" her rehire; concurrently
with this directive, Respondent's plant manager was told,
nevertheless, that Mrs. Lara would not be permitted to re-
sume her position. And thereafter, consistently with his de-
clared purpose, President Thompson specifically directed
Massengale to draft a letter wherein Mrs. Lara was notified
that, without a sufficient "medical" reason proffered to
justify her absence, she would be terminated. Concededly,
when he did so, Thompson knew that Mrs. Lara would not
be able to provide the required medical justification. Fur-
ther, Mrs. Lara was given a time limit within which to reply
which Respondent's management representatives had
good reason to believe she would not be able to satisfy.
One question, however, remains: Wherein lay Respon-
dent's motive? General Counsel contends, of course,
that Mrs. Lara was terminated because of her union
sympathies. He notes: First, that Respondent's various
department heads-together with the firm's president-
knew she had been, and presumably still was, a pro-union
worker; second, that President Thompson's various Sep-
tember and October 1974 comments with respect to Mrs.
Lara's presumed behavior reveal his persistent belief
that she might cause future "union" problems within
Respondent's Fresno plant; third, that she was terminated,
finally, upon pretextual grounds. These considerations-so
General Counsel suggests-mandate a determination that
CENTRAL CASKET CO. 397
Mrs. Lara's discharge was effectuated for discriminatory
reasons, statutorily proscribed.
Under well-established decisional doctrine, conclusions
with respect to whether or not some particular discharge
may properly be characterized as discriminatory must, nec-
essarily, derive from a preliminary determination as to the
respondent firm's true "underlying" reason for taking such
action. And, though some lawful or nonproscribed cause for
discharge may be available, that fact constitutes no de-
fense whenever a worker has really been discharged be-
cause of his prounion conduct. N.L.R.B. v. Ace Comb Com-
pany and Ace Bowling Co., Division of Amerace Corp., 342
F.2d 841, 847 (C.A. 8, 1965), cited with approval Shattuck
Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470
(C.A. 9, 1966). When reaching determinations with respect
to such cases, triers of fact need not consider the concerned
employer's self-serving declarations conclusive; they may
deduce his real motive from the total circumstances
proved. Further, should they find a stated motive for dis-
charge false, they may legitimately "infer" that the respon-
dent employer really acted from some other motive. More-
over, they can further deduce that the concerned
employer's true motive is one which, because of its unlaw-
ful character, he desires to conceal, whenever the particular
discharge situation 's factual context tends to reinforce such
a deduction. Shattuck Denn Mining Corporation v.
N.L.R.B., supra. The final qualification mentioned, howev-
er, suggests a significant caveat which triers of fact must
consider. Specifically, the relevant "surrounding facts"
which General Counsel would rely on, to "reinforce" his
suggested "inference" that a challenged discharge was real-
ly motivated by the concerned employer's desire to dis-
courage union activity, must be established by record evi-
dence sufficiently substantial, reliable, and probative to
warrant such a determination.
Within numerous decisions which various courts of ap-
peal have promulgated, this Board has repeatedly been in-
structed: That the mere fact of some worker's participation
in union activity, taken alone, constitutes no proof that his
or her subsequent discharge was effectuated for that rea-
son; that the mere fact that good cause for a discharge
cannot be convincingly demonstrated provides no suffi-
cient basis for a deduction-reflecting a trier of fact's 180-
degree reversal-that the discharge derived from a statuto-
rily proscribed motive; and that no such motive may, rea-
sonably, be inferred when the record provides equal
support for deductions inconsistent therewith . See Shattuck
Denn Mining Corporation v. N.L.R.B., supra, at 468-469. In
short, General Counsel cannot meet his burden, with re-
spect to proving a discharge wrongfully motivated, with-
out citing "something affirmative" which preponderantly
supports his contention. Compare N L. R. B. v. Patrick Pla-
za Dodge, Inc., 522 F.2d 804 (C.A. 4, 1975), in this connec-
tion. Evidence which points equally in two directions
points in neither and therefore cannot be relied on to satis-
fy General Counsel's burden of proof.
Herein, General Counsel had-in my view-persuasive-
ly shown that President Thompson was moved by "ani-
mus" rather than by sound business discretion, when he
conceived the strategem pursuant to which Mrs. Lara was
ultimately discharged. However, the complete rec-
ord-considered with due regard for the " total circum-
stances" proved-provides something less than preponder-
ant support for a determination that President Thompson's
hostility derived from strong "anti-union" feelings focused
on the seamstress herein . First: I note that Mrs. Lara's par-
ticipation in Complainant Union 's representation cam-
paign had actually been comparatively passive. She had
been present during two preliminary union meetings; she
had signed a designation card; and she had participated in
several casual conversations during which Complainant
Union's campaign was discussed. Second: The seamstress's
conceded prounion sympathies had been manifested-so
far as President Thompson knew-merely during June and
July 1974 some 3 months previously. Subsequently, Com-
plainant Union's August 23 representation vote had been
voided, General Counsel's first complaint herein had been
served, and Complainant Union's June 5 representation
petition had been withdrawn. Respondent's president
could conceivably have been considering the possibility
that Complainant Union's representation bid might be re-
vived subsequently; the record, however, provides no sub-
stantial , reliable, or probative basis for a determination, in
my view, that he really considered such a revival, within
the predictable future, likely. Compare States Steamship
Company, 219 NLRB 1252 (1975), in this connection. With
Complainant Union's campaign for representative status
presumptively dormant, General Counsel's representatives
cannot, in my view, claim-persuasively-that President
Thompson still considered Mrs. Lara's termination neces-
sary or desirable to forestall Respondent' s unionization.
Third: Though I have-previously in this decision-found
Alex Gonzales' and Anastacio Gomez' terminations viola-
tive of law , none of Respondent 's subsequent terminations,
challenged herein, have been found discriminatory because
they were bottomed upon "anti-union" considerations.
More particularly, Respondent has not been found "con-
structively" responsible for Francisco Lara's termination.
Having found that President Thompson did not deliber-
ately harass Francisco Lara, to force his resignation for
statutorily proscribed reasons, I consider it less than likely
that he would have thereafter discriminatorily discharged
Mrs. Lara, whose prounion sentiments had been less prom-
inently manifested (True, Complainant Union' s second
amended charge and General Counsel's amended com-
plaint herein-with Francisco Lara belatedly designated
therein as a discriminatory dischargee-had been filed on
November 6, shortly before the situation with which we are
now concerned developed. General Counsel' s representa-
tives, however, have not contended herein that Mrs. Lara
was "set up" for termination specifically in reprisal for
Complainant Union's newly filed charge, or General
Counsel's consequent complaint.)
Certainly, General Counsel's presentation with respect
to Respondent's purported "anti-union" motivation for
Mrs. Lara's discharge could, conceivably, provide grounds
for suspicion. Since the record, however, points "equally"
toward another motive-which I would find beyond statu-
tory proscription-General Counsel's contention that
Respondent 's seamstress was discriminatorily terminated
for a statutorily proscribed reason cannot be considered
preponderantly demonstrated.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Previously, in this Decision, reference has been made to
President Thompson's conceded declaration that Mrs.
Lara was considered a real "troublemaker" because she
had, presumably, sparked Delores Conde's vacation pay
claim. Her discharge-which may logically have derived
from Thompson's resentment of her presumptive role as
Conde's prompter-cannot, under such circumstances, be
considered a termination for statutorily protected conduct.
Concerted, it may have been-with Mrs. Lara function-
ing as her fellow seamstress 's prime mover, and Conde sub-
sequently pursuing Mrs. Lara's suggestion. Clearly, howev-
er, Conde's claim was personal; nothing in the present
record would warrant a determination that a resolution
with respect to her vacation pay demand would have af-
fected Respondent's other workers, or that her claim was
being pursued "for the purpose of . . . mutual aid or pro-
tection" statutorily guaranteed. Compare Buddies Super-
markets, Inc., 197 NLRB 707 (1972), enforcement denied
481 F.2d 714 (C.A. 5, 1973) in this connection. President
Thompson's determination to dispense with Mrs. Lara's
service-so far as it may arguably have been bottomed on
her participatory role as Conde's persuader-may well de-
serve characterization as invidious; I cannot, however, find
it subject to statutory interdiction.
Years ago, Mr. Justice Frankfurter, speaking for the Su-
preme Court in N.L.R.B. v. Donnelly Garment Company,
330 U.S. 219, 229 (1947), commented therein-with refer-
ence to a somewhat different problem in deductive reason-
ing-that:
According to an early English judge, "The devil
himself knoweth not the mind of man," and a modern
reviewing court is not much better equipped to lay
bare unexposed mental processes.
Bureaucratic triers of fact, certainly, cannot claim immuni-
ty from the disability described. Where, then, as here, Pres-
ident Thompson's motivation for Mrs. Lara's discharge
must be deduced from testimony which provides "equal
support" for two inconsistent determinations, the trier of
fact's presumed competence to draw inferences and make
selections cannot generate a record "preponderance " suffi-
cient to support a conclusion favoring one determination
with respect to motive, rather than another And General
Counsel's burden of proof, therefore, cannot be considered
satisfied. With respect to Mrs. Lara's termination, I find
myself constrained to reject General Counsel's proffered
"discriminatory discharge" contentions.
C. Conclusions
1. Interference, restraint, and coercion
Previously in this decision, I have found that Marshall
Ostlund, Respondent's mill department manager-during
conversations with "Pepe" Gonzalez and Elsie Ledger spe-
cifically-declared that workers who participated in dis-
cussions , with respect to unionization, in Respondent's
plant would be discharged. Such statements, quite clearly,
restrain and coerce employees; Respondent violated Sec-
tion 8(a)(1) of the Act, thereby. Compare New Castle Lum-
ber and Supply Co., Division of Peter Kuntz Co., 203 NLRB
937, fn. 1 (1973); Carolina Quality Concrete Co., 193 NLRB
463, 469 (1971), in this connection. (With respect to
Ostlund's comment to Pepe , General Counsel 's representa-
tive disclaimed any contention that Section 8(a)(1) was vio-
lated thereby, though he did claim that it revealed
Respondent 's antiunion motivation for the challenged dis-
charges of Gomez and Alex Gonzales, found discriminato-
ry herein. The factual situation with respect to Ostlund's
comment was, however, fully litigated. Compare Free-Flow
Packaging Corporation, 219 NLRB 925 (1975), in this con-
nection. In any event, since Ledger's credited testimony
reveals that Ostlund made comparable statements , viola-
tive of the statute, to her, my conclusions with respect to
General Counsel's 8(a)(1) charge will stand, whether or not
Pepe's corroborative testimony is considered probative.)
Further, I have found that Respondent's president-dur-
ing his June 19 conversation with Alex Gonzales particu-
larly-declared that further solicitation in Complainant
Union's behalf, on Gonzales' part, would result in his ter-
mination. Since President Thompson concededly laid
down this prohibition without "time" or "place" limita-
tions, his directive was likewise reasonably calculated to
interfere with, restrain, and coerce Gonzales, together with
Respondent's other workers, with respect to their exercise
of rights statutorily guaranteed.
2. The discharges
Within their consolidated complaints, General Counsel's
representatives have challenged eight designated termina-
tion decisions as discriminatory. Previously herein I have
found the June 19 termination of Anastacio Gomez, Jr.,
together with Alex Gonzales' concurrent constructive dis-
charge, violative of law. Maria Gonzalez' July 4 discharge I
have found beyond statutory proscription-since Mrs.
Gonzalez was then Respondent's sewing room "supervi-
sor" within the meaning of the statute . Margaret Huerta
and Norma Flores were-so I have found-laid off July 10
for lack of work. I have, however, further found that Huer-
ta was subsequently recalled, pursuant to a calculated stra-
tegem, so that she could be discharged on August 30, be-
cause of her participation in concerted activity for mutual
aid or protection. Francisco Lara, so the record shows, left
work voluntarily on August 28; with due regard for his
resignation's background, I have found-contrary to Gen-
eral Counsel's contention-that Lara was not constructive-
ly discharged. Finally, with respect to Mrs. Lara, who re-
ceived notice of her termination on November 19 when she
reported for work following a week's leave, General
Counsel's representatives have-in my view-failed to pro-
duce evidence which would, preponderantly, warrant a de-
termination that she was discharged, discriminatorily, for a
reason statutorily proscribed.
3. General Counsel's request for a bargaining order
General Counsel contends herein that Respondent's
course of conduct-since it compassed several statements
violative of Section 8(a)(1) and discriminatory discharges
likewise violative of law-has rendered the conduct of a
free and fair representation election impossible within
CENTRAL CASKET CO. 399
Respondent's Fresno plant. General Counsel's representa-
tives, therefore, suggests that the situation requires the pro-
mulgation of remedial orders, compassing a directive, inter
alia, that Respondent bargain with Complainant Union
herein.
Determinations with respect to whether a so-called "bar-
gaining order" remedy may be necessary and proper-in a
given case-currently derive from the principles defined
within the Supreme Court's Gissel decision. N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969). Therein, the
Court held that bargaining relationships can be imposed,
under certain circumstances, on concerned employers, by
means other than Board-conducted representation votes;
that valid union designation cards, signed by a majority of
workers in some unit appropriate for collective-bargaining
purposes, will be sufficient to support bargaining orders;
and, finally, that such relief may be granted when con-
cerned employers have pursued courses of conduct reason-
ably calculated to render the holding of subsequent "free
and fair" representation elections less than likely. To sup-
port a bargaining order promulgated consistently with
these principles the record must show: First, that a labor
organization has procured valid designation cards from a
majority of the concerned employer's workers, within a
group deemed "appropriate" for collective-bargaining pur-
poses; second, that the concerned employer has engaged in
conduct which has destroyed the conditions necessary for
the holding of a fair and free representation vote; third,
that employee sentiments with respect to unionization,
when expressed through designation cards, can best be
protected, under the circumstances, by some "bargaining
order" remedy.
a. The bargaining unit
Within its formal answer, Respondent initially denied
General Counsel's complaint specification that a group
composed of all Respondent's Fresno plant workers, in-
cluding truckdrivers, but excluding office clerical employ-
ees, guards, and statutory supervisors, constitutes a unit
appropriate for the purposes of collective bargaining.
Respondent's counsel, however, pressed no such conten-
tion when this case was heard; nor has such a contention
been reiterated in his brief. Pursuant to well-established
decisional doctrine, plantwide bargaining units-with of-
fice clerical workers, guards, and statutory supervisors ex-
cluded-have long been considered presumptively appro-
priate for collective-bargaining purposes (Absent some
competitive claim, proffered by a labor organization which
seeks to represent truckdrivers separately, their inclusion
within plantwide production and maintenance units clearly
will not render such units inappropriate for collective-bar-
gaining purposes.) Within her decision and direction of
election with respect to Respondent's Fresno workers, the
Acting Regional Director found the unit described above
appropriate; her determination therein was never chal-
lenged. I find the bargaining unit defined within General
Counsel's complaint appropriate for collective-bargaining
purposes.
b. Complainant Union's card majority
Thirty designation cards, signed by Respondent's Fresno
workers, have been proffered for the record, and received.
Of these, 27 had been signed by May 31; 2 more had been
solicited and signed before June 5, when Complainant
Union's representation petition was filed. (The 30th desig-
nation card was signed subsequently by Pedro Banuelos
during Complainant Union's June 27, meeting at the resi-
dence of Jose Gonzalez, Sr. For present purposes, this card
may be disregarded )
On May 31, Respondent's production, maintenance, and
driver work force compassed 35 employees. By June 5,
Respondent's payroll had been augmented by one trim de-
partment worker; Emilio Briseno had been hired. With
Complainant Union's first 29 authorization cards counted,
therefore, that organization had-clearly-been designated
and selected by a majority of Respondent's Fresno plant
workers when its June 5 demand for recognition was made.
(1) Complainant Union 's initiation fee forecast
Respondent claims that Complainant Union's designa-
tion card majority should be considered "vitiated" because
that organization's business representative-when he solic-
ited card signatures-had promised reduced initiation fees
for those workers who had signed cards before any repre-
sentation vote which might be conducted, or before Re-
spondent granted Complainant Union recognition, while
workers who "joined" later would be required to pay some
larger fee.
In N.L.R.B. v. Savair Manufacturing Co, 414 U.S. 270
(1973), the Supreme Court disapproved a union's promise
that initiation fees would be completely "waived" for
workers who had signed union designation cards before a
Board-conducted election; it declared that endorsements,
whether for or against the labor organization concerned,
should not be "bought and sold" thusly. The Court com-
mented, however, that unions have a legitimate interest
with respect to promised initiation fee waivers, when they
have not yet been chosen as bargaining representatives,
since workers otherwise sympathetic to the union might
well be reluctant to pay out money before that organi-
zation has done anything for them. This interest, the Court
noted, can be preserved by making initiation fee waivers
available not only for those workers who might have signed
up with the union before a representation vote, but-like-
wise-for those who might "join" during some limited or
"open-end" period thereafter.
Previously in this Decision, Business Representative
Bayless' comments with respect to Complainant Union's
reduced "initiation fee" policy have been reviewed. I have
found that he did not promise reduced initiation fees limit-
ed to workers who would sign designation cards before
Respondent granted Complainant Union recognition, or
before a possible representation vote. His witness-chair
recollections-previously set forth verbatim-reveal that
Respondent's workers were merely told that lower "admis-
sion" fees would be charged those taken into membership
"when the plant was finally settled." The business
representative's further testimony-proffered to clarify his
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commitment's substance , though not its precise tenor-re-
veals that Respondent's workers were told substantially
that a reduced rate would be charged all those who were in
Respondent's hire "when and if the Union bargained for
them, [and] we had the contract." He specifically denied
that Complainant Union's lower initiation fee commitment
had been limited to some "specified group of people that
had signed cards" before a contract 's negotiation . So pre-
sented , Bayless' reduced rate promise cannot be considered
improper within Savair 's rationale . Compare Smith Compa-
ny of California, Inc., 215 NLRB 530 (1974); Western Refri-
gerator Co., Subsidiary of the Hobart Manufacturing Co.,
213 NLRB 227 (1974); S & S Product Engineering Services,
Inc., 210 NLRB 912 (1974), enfd. 513 F.2d 1311 (C.A. 6,
1975); Wabash Transformer Corporation, Subsidiary of
Wabash Magnetics, Inc., 210 NLRB 462 (1974), enfd. 509
F.2d 647 (C.A. 8, 1975), in this connection.
(2) Supervisory participation in Complainant Union's
campaign
Respondent contends , finally, that-since Complainant
Union 's claimed designation card majority had been "ob-
tained" with the direct partisan participation and support
of Fresno plant management representatives-those cards
provide no valid or proper basis for the designated labor
organizations ' present claim to representative status. More
particularly , Respondent contends that Jose Gonzalez, Sr.,
and Maria Gonzalez made such "vital and extensive" con-
tributions to Complainant Union' s promotional campaign
and designation card solicitations-while functioning in a
fashion which "must have been widely known" among
Respondent's workers who signed designation cards-that
their coordinated course of conduct merits characterization
as conduct which "tainted" the Complainant Union's ma-
jority showing, vitiating the bases on which Complainant
Union 's present claim to representative status rests.
This contention raises a close question ; that question's
resolution will depend on the significance which certain
facts-substantially conceded for the present record-may
reasonably be considered to carry.
In a recent representation case decision-Gary Aircraft
Corporation, 220 NLRB 187 (1975)-which dealt with elec-
tion objections bottomed upon a low-level supervisor's par-
ticipation in the concerned union 's preelection campaign,
this Board declared that:
Mere supervisory participation in a union's orga-
nizing campaign does not, without a showing of possi-
ble objectionable effects, warrant setting aside an elec-
tion. Turner 's Express, Incorporated 189 NLRB 106
[192 NLRB 561 (1971), enforcement denied 456 F.2d
289 (C.A. 4, 1972)]; Stevenson Equipment Company,
174 NLRB 865 (1969). As we noted in those cases,
there are two situations where such participation
could have an objectionable effect . First, employees
may be led to believe the supervisor was acting on
behalf of the employer and that the employer favors
the union . Second, employees may be coerced out of
fear of future retaliation by union-oriented supervisors
into supporting the union.
Whether the present record-which deals, however, with
claims that Complainant Union' s card showing should be
considered tainted, rather than claims that the Board's
election processes have been subverted-presents these sit-
uations, conjunctively or disjunctively, must be de-
termined . General Counsel has conceded that Jose,
Respondent 's plant manager , was the particular person
within the firm 's Fresno plant who directly contacted
Complainant Union with respect to organizing Re-
spondent 's employees . His son , Pepe, pursuant to his di-
rection, participated-actively-when Business Represen-
tative Bayless' first meeting with Respondent's workers was
planned and publicized. When that May 30 meeting was
held, Jose 's wife , who had accompanied Bayless to the
meeting 's site , was the person who introduced Complain-
ant Union's business representative . Jose's son translated
the business representative 's remarks ; further , he translat-
ed Complainant Union's designation card language, when
those cards were produced for signature . And subsequent-
ly, before Complainant Union' s representation petition
was filed, Pepe , together with Francisco Lara, solicited
more designation card signatures. Maria Gonzalez likewise
solicited Respondent 's workers , both within and without
the plant section which she supervised . With due regard for
these conceded matters of record, I conclude-consistently
with Respondent's contention-that General Counsel has
not herein persuasively demonstrated Complainant
Union's majority representative status, within a truly "un-
coerced" group of Respondent 's workers , appropriate for
collective-bargaining purposes.
Of course, we do not have , in the present record, con-
crete "proof" that Respondent's workers-when a majority
of them signed designation cards during the May 30 park
meeting-were actually persuaded that their supervisors
were functioning in Respondent 's behalf, or that their cor-
porate employer favored unionization . They knew, howev-
er, that Respondent 's corporate officials were really "ab-
sentee" managers who visited the Fresno plant as part-time
supervisors , with Jose functioning day-by-day as their
facility's direct , responsible management representative.
Further, they knew or reasonably could have determined-
through conversational contacts within Respondent's
plant , or within Fresno's Mexican -American community-
that Respondent 's plant manager , together with the firm's
metal department manager , Curiel, had previously been
union members while they were working within the Oak-
land, California, plant maintained by Respondent's sister
corporation. With matters in this posture , Respondent's
workers could certainly have believed-before President
Thompson made his contrary disposition known-that
their employer , personified by Plant Manager Jose Gonza-
lez, Sr., favored unionization.
Jose concededly did not attend Complainant Union's
May 30 Roedmg Park meeting . Nor did he personally soli-
cit workers in Complainant Union's behalf. He did not
directly seek to persuade employees that Complainant
Union merited their support. Since Maria and Pepe, how-
ever , had both participated-actively-when Complainant
Union's May 30 meeting was being arranged , publicized,
and conducted, Respondent 's employees , in my view,
could reasonably have concluded that their Fresno super-
CENTRAL CASKET CO. 401
visors, more particularly Respondent's plant manager and
his wife, were union-oriented, and that future supervisory
pressures or retaliation, directed against workers not dis-
posed to welcome unionization, might be possible. (In his
brief, General Counsel has noted the lack of concrete evi-
dence, herein, that Maria and Jose's son "held [themselves]
out" as Jose's representatives, in haec verba, or that they
were generally so regarded by Respondent's employees.
However, since their familial relationship with
Respondent's plant manager was certainly known, no spe-
cific "holding out" would have been required;
Respondent's workers, in my view, could reasonably have
deduced that Jose's wife and son did reflect his views-
particularly since the record reflects no statements or con-
duct, chargeable to him, calculated to counter or negate
their conceivable deduction.) True, Pepe was merely a
rank-and-file worker, and Maria merely a low level super-
visor whose nominal authority covered no more than five
sewing room workers. Nevertheless, their family relation-
ship with Respondent's plant manager-in my view-nec-
essarily invested their statements and conduct with a per-
suasive thrust, reasonably calculated to influence the
choice of their fellow workers, with respect to unionization.
Since the record herein shows that Plant Manager Jose
Gonzalez, Sr., touched off Complainant Union's organiza-
tional drive; that his son, together with his wife-likewise a
statutory supervisor-participated, actively, while designa-
tion card solicitations were being made; and that both sub-
sequently played key roles in connection with Complainant
Union's campaign, I conclude that, in this relatively small
plant, Complainant Union's majority representative status
was "tainted" materially thereby. Sopps, Inc., 175 NLRB
296 (1969); Welding & Industrial Products, Ltd. & Carbonic
Products Corp., 167 NLRB 881 (1967). Compare Dayton
Motels, Inc., d/b/a Holiday Inn of Dayton, 212 NLRB 553
(1974); Dexter Foods, Inc., d/b/a Dexter IGA Foodliner 209
NLRB 369 (1974); A.T.I. Warehouse, Inc., 169 NLRB 580
(1968), in this connection. With matters in this posture,
General Counsel has not persuasively demonstrated that
Complainant Union has ever represented a truly "un-
coerced" majority of Respondent's workers, within the bar-
gaining unit herein found appropriate. And no remedial
"bargaining order" predicated on Respondent's proven un-
fair labor practices would therefore be warranted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with Respondent's opera-
tions described in General Counsel's complaints has had,
and continues to have, a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
In view of these findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Central Casket Company is an employer
within the meaning of Section 2(2) of the Act engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. Upholsterers' International Union of North America,
Local No. 3, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act, which admits certain
employees of Central Casket Company to membership.
3. When Respondent's management representatives (a)
forbade employees to solicit in Complainant Union's be-
half, without limiting their prohibition's scope to plant lo-
cations or times with respect to which such a restriction
would be legally permissible, and (b) threatened employees
with discharge for participating in discussions with regard
to their possible unionization, Respondent interfered with,
restrained, and coerced employees with respect to their ex-
ercise of rights statutorily guaranteed. Thereby Respon-
dent engaged in, and continues to engage in, unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
4. Respondent's management representatives-when
they discharged Anastacio Gomez, Jr., and constructively
discharged Alex Gonzales, because of their demonstrated
interest in unionization, and their concerted and protected
activities in Complainant Union's behalf-discriminated
against these employees with respect to their hire and ten-
ure of employment and further interfered with, restrained,
and coerced Respondent's employees, generally, with re-
spect to their exercise of rights statutorily guaranteed.
Thereby Respondent engaged in, and continues to engage
in, unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the
Act, as amended.
5. Respondent's management representatives-when
they directed and/or consummated Margaret Huerta's Au-
gust 30, 1974, discharge, because of her participation in
protected concerted activity-interfered with, restrained,
and coerced her, together with Respondent's employees
generally, with respect to their exercise of rights statutorily
guaranteed. Thereby, Respondent engaged in, and contin-
ues to engage in, an unfair labor practice affecting com-
merce within the meaning of Sections 8(a)(1) and 2(6) and
(7) of the Act, as amended.
6. General Counsel has not herein produced substantial,
reliable, and probative evidence sufficient to justify a de-
termination that Respondent's management representa-
tives-when they terminated Maria Gonzalez on July 4,
laid off Margaret Huerta and Norma Flores on July 10,
reprimanded Francisco Lara on August 28, and notified
Irma Lara on November 19, 1974, that she had been dis-
charged-discriminated against these employees with re-
gard to their employment tenure, for the purpose of dis-
couraging union membership. Thus, General Counsel has
not established by a preponderance of the evidence that
Respondent did thereby engage in, or continues to engage
in, unfair labor practices affecting commerce, within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the Act, as amended.
7. General Counsel has not herein produced substantial,
reliable, and probative evidence sufficient to warrant a
Board directive whereby Respondent would be required to
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively with Complainant Union as the exclu-
sive representative of Respondent 's workers , within a de-
fined Fresno plant unit considered appropriate for collec-
tive-bargaining purposes.'
THE REMEDY
Since I have found that Respondent has committed, and
has thus far failed to remedy , specific unfair labor practices
which affect commerce , I shall recommend that it be or-
dered to cease and desist therefrom , and to take certain
affirmative action , including the posting of appropriate no-
tices, designed to effectuate the policies of the Act.
Specifically , since I have found that Section 8 (a)(1) and
(3) of the statute were violated when Respondent's man-
agement representatives terminated Anastacio Gomez, Jr.,
constructively discharged Alex Gonzales , and subsequently
directed and/or consummated the August 30, 1974, dis-
charge of Margaret Huerta, for statutorily proscribed rea-
sons, I shall recommend that Respondent be required to
offer these workers immediate and full reinstatement to
their former positions or, should those positions no longer
exist , to substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges. Re-
spondent should further be required to make Gomez, Gon-
zales, and Huerta whole for any pay losses which they may
have suffered because of the discrimination practiced
against them, by paying them sums of money equal to the
amounts which each of them would normally have earned
as wages from the dates of their respective terminations to
the date or dates of Respondent 's reinstatement offers, less
their net earnings during the periods designated . The back-
pay due should be computed by calendar quarters, pur-
suant to the formula which the Board now uses. F. W.
Woolworth Company, 90 NLRB 289 (1950). Interest thereon
should likewise be paid , computed at 6 percent per year.
See Isis Plumbing & Heating Co ., 138 NLRB 716 ( 1962), in
this connection.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER2
Respondent Central Casket Company, Fresno, Califor-
nia, its officers , agents, successors , and assigns , shall.
i Errors in the transcript have been noted and corrected
2 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
deemed waived for all purposes
1. Cease and desist from:
(a) Threatening employees with discharge for participat-
ing in discussions with regard to unionization.
(b) Forbidding employees to solicit in Complainant
Union 's behalf within Respondent 's Fresno plant premises,
without limiting such a restrictive rule or policy to periods
during the work day when such a restriction with respect to
solicitations would be legally permissible.
(c) Discharging employees, or discriminating in any
other manner with regard to their hire or tenure of employ-
ment , or the terms and conditions of their employment,
because of their participation in union organizational ac-
tivities, or their participation in protected concerted activi-
ties, for the purpose of collective bargaining or other mutu-
al aid or protection
(d) Interfering with , restraining , or coercing employees,
in any like or related manner, with respect to their exercise
of rights which Section 7 of the statute guarantees.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Anastacio Gomez , Jr., Alex Gonzales, and
Margaret Huerta immediate and full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges , and make
them whole for any loss of pay which they may have suf-
fered by reason of the discrimination practiced against
them , in the manner set forth within the "Remedy" section
of this decision.
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all pay-
roll records , social security records, timecards , personnel
records and reports, and all other records relevant and nec-
essary to reach a determination with respect to the
amounts of backpay due in this Order.
(c) Post at its place of business in Fresno , California,
copies of the attached notice marked "Appendix ." 3 Copies
of said notice , prepared both in Spanish and English on
forms provided by the Regional Director for Region 20,
after being duly signed by Respondent 's representative,
shall be posted immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter , in conspicu-
ous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced , or covered by any other material.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
3 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
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"