Imperial Bedding Co.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1560 (N.L.R.B. 1976)

1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Imperial Bedding Company and Southwest Regional
Joint Board , Amalgamated Clothing Workers of
America, AFL-CIO. Case 23-CA-5766
June 21, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On April 8, 1976, Administrative Law Judge Eu-
gene George Goslee issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) Although we may have
reached a different result from the credibility resolutions contained herein,
we have carefully examined the record and find there is insufficient basis for
reversing the Administrative Law Judge 's findings Furthermore , while it
does not affect the result herein , we do not agree with the Administrative
Law Judge 's finding that the medical testimony of Dr Snead failed to estab-
lish that Gutierrez was allergic to the glue On the record , or otherwise, there
appears to be no basis for the Administrative Law Judge 's substitution of
his own medical judgment for that of the doctor Finally , we disavow the
Administrative Law Judge 's gratuitous comment to the effect that it was the
General Counsel 's theory that an employee has an insurance policy from
discharge for cause once that employee has prosecuted a meritorious unfair
labor practice charge against an employer
DECISION
1976, at San Antonio, Texas, upon a complaint' issued by
the General Counsel of the National Labor Relations
Board and an answer filed by Imperial Bedding Company,
hereinafter called the Respondent. The issues raised by the
pleadings relate to whether or not the Respondent violated
Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act, as amended, by discharging Mary Louise (Peg-
gy) Gutierrez. Briefs have been received from the General
Counsel, the Respondent, and the Charging Union and
have been duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. PRELIMINARY MATTERS
(COMMERCE, JURISDICTION, AND LABOR ORGANIZATION)
The complaint alleges, the answer admits and I find that
the Respondent , Imperial Bedding Company, is engaged at
San Antonio , Texas, in the manufacture and sale of mat-
tresses and box springs ; that in the 12 months preceding
the issuance of this complaint the Respondent purchased
goods and materials in interstate commerce valued in ex-
cess of $50,000 ; and that the Respondent is an employer
within the meaning of Section 2(2) of the Act, and engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act . The complaint also alleges , the answer admits and
I find that Southwest Regional Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO, hereinafter
called the Union , is a labor organization within the mean-
ing of Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES ALLEGED
The General Counsel alleges , and the Respondent de-
nies, that Imperial Bedding discharged Mary Louise (Peg-
gy) Gutierrez because she engaged in union activities and
because she gave testimony under the National Labor Re-
lations Act in Case 23-CA-5070 and Case 23-RC-4125.
Implicit in these allegations is the conclusionary allegation
that the Respondent has violated Section 8(a)(3), (4), and
( 1) of the National Labor Relations Act, as amended.
III BACKGROUND
In a prior unfair labor practice involving the Respon-
dent 2 the Board found that Imperial Bedding Company
violated Section 8(a)(1) of the Act by threatening to dis-
charge and discharging seven of its employees because they
ceased work in protest of the suspension of a fellow em-
ployee. Pursuant to the Board's order, as enforced by the
United States Circuit Court of Appeals for the Fifth Cir-
cuit,3 the Respondent was ordered to reinstate Gutierrez,
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
case came on to be heard before me on February 3 and 4,
1 The complaint in this proceeding was issued on November 26, 1975,
upon charges filed on September 24, 1975, and duly served on the Respon-
dent on that date
2 Imperial Bedding Company, 216 NLRB 934 (1975)
3 N L R B v Imperial Bedding Company, 519 F 2d 1073 (C A 5, 1975)
224 NLRB No. 214
IMPERIAL BEDDING COMPANY 1561
and make her whole for any loss of earnings she sustained
Gutierrez returned to her employment in the build-up de-
partment of the Respondent's plant in January 1975
The Respondent manufactures several grades of mat-
tresses, including a model called the Posture Bond in which
a type of glue is used to bond the fabric of the mattress to
the spring structure According to the testimony of Gutier-
rez, the Respondent began to manufacture Posture Bond
mattresses, referred to in the record as glue mattresses, in
March 1975 4 After approximately 1 month of working on
the glue mattresses, Gutierrez claims to have experienced
dizziness and nausea, and attended her physician Gutier-
rez explained to her doctor that she believed the glue used
in making the Posture Bond mattresses was the cause of
her illness In late March or early April, and whether be-
fore or after her visit to the doctor is not clear, Gutierrez
informed Tito Ramirez, the Respondent's plant superinten-
dent, that she couldn't make Posture Bond mattresses be-
cause the glue made her sick As Gutierrez testified, Rami-
rez made no reply, and just walked off Also in April,
Gutierrez was confronted by Steve Schnitzer, the
Respondent's vice president, who asked if she was making
glue mattresses Gutierrez replied that she was not, because
the glue made her dizzy and nauseous Steve Schnitzer
called Gutierrez' fellow employees Mary Helen Ruiz and
Carrie Schwartz over to the table and stated that if Ruiz
and Schwartz wanted to do Gutierrez' dirty work, she
would still have a job at Imperial
Gutierrez also testified that in May she was called to the
office by Sol Schnitzer, the Respondent's president, and in
the presence of employee Larry Jackson and Supermten-
dent Ramirez, Sol Schnitzer stated that he was aware that
Gutierrez was not making glue mattresses Schnitzer asked
for an explanation and Gutierrez replied that the glue
made her sick Further conversation ensued in which
Schnitzer asked why Gutierrez believed the glue adversely
affected her, and Gutierrez explained her doctor's findings,
and offered to show Schnitzer the slip given her by the
physician Schnitzer refused, and stated that he would call
Gutierrez' doctor Schnitzer directed Gutierrez to return to
the build-up department and make a glue mattress, so that
he could determine what the results would be Gutierrez
protested Schnitzer's order, cried, but returned to her work
table
Gutierrez did not remain at her work table, and purport-
edly because she was ill and crying she went to the rest-
room She was told that Sol Schnitzer wanted to see her,
but she relayed the message through the employee that she
didn't want to talk to Schnitzer, but wanted to be left
alone Later, back at her work place, Gutierrez was asked
by Schnitzer if she had made a glue mattress She replied
that she had not This conversation was repeated several
times at short intervals, in each instance by Schnitzer ask-
ing if Gutierrez had made a glue mattress, and in each
instance she gave a negative reply On the last occasion,
Schnitzer asked to see Gutierrez' doctor's statement, she
found that she did not have it in her possession, but agreed
to bring it to Schnitzer
According to Gutierrez, she had attended her doctor
prior to the May confrontations with Sol Schnitzer, the
doctor made tests and confirmed that the glue was the
cause of the dizziness and nausea Gutierrez also related
that she attended the doctor a second time, about May 10,
and the doctor gave her a slip which she gave to Sol Schnit-
zer on May 12 Apparently on her second visit to the doc-
tor, Gutierrez presented a slip with the name of the manu-
facturer of the glue, and the doctor checked with some
local poison control agency, and the supposed results of
the check will be reviewed below
On September 17, Gutierrez reported to work, and start-
ed making mattresses Shortly thereafter, Sol Schnitzer ap-
proached with the invoice for the work to be performed
that day Schnitzer told Gutierrez that there was a large
order for Posture Bond mattresses, and that she would
have to help Ruiz and Schwartz make glue mattresses Gu-
tierrez protested that she couldn't use the glue, and Schnit-
zer replied that if she could not use the glue she would have
to punch out, and Schnitzer would find a replacement Gu-
tierrez asked if Schnitzer would replace her even though
she had a doctor's notice, and Schnitzer replied, "Yes "
Gutierrez asked if Schnitzer was going to replace her, and
if this meant she was fired Schnitzer again replied, "Yes "
Gutierrez gathered her personal belongings and left the
plant In the parking lot Sol Schnitzer asked if she was
leaving Gutierrez replied, "Yes, you just fired me, didn't
you " Schnitzer replied, "Yes "
As to Gutierrez' union and concerted activities, there is
the record evidence that she and six other employees were
discharged by the Respondent in April 1974 and Gutierrez
was reinstated in January 1975, pursuant to the terms of
the Board's order, as enforced by the court of appeals Gu-
tierrez also testified that she appeared as a witness on be-
half of the Union at a representation case hearing in April
1975, but she was unable to recall the nature of the matters
to which she testified The record also reveals that employ-
ee Carrie Schwartz was one of the seven employees found
to have been discriminated against in the prior case, that
like Gutierrez, Schwartz appeared as a witness in the unfair
labor practice case hearing, and that Schwartz also testified
on behalf of the Union in the representation case hearing
Carrie Schwartz was still employed by the Respondent on
the date the hearing was closed in this proceeding
In addition to the foregoing, Gutierrez testified that in
early September she had a conversation about the Union
with employees Joe Blanca and Larry Jackson There is no
proof that either Blanca or Jackson are agents of the Re-
spondent, and there is similarly no proof that Gutierrez'
remarks were made known to the Respondent About Sep-
tember 10 or 11, Plant Superintendent Tito Ramirez told
Gutierrez and employee Mary Helen Ruiz that Sol Schnit-
zer would hold a meeting for the employees at 11 45 that
day According to Gutierrez she remarked to Ruiz that she
hoped Schnitzer would not talk against the Union, because
he would be violating government laws As Gutierrez testi-
fied, Ramirez was standing 4 to 5 feet away when she made
the remark to Ruiz However, Ruiz also testified in this
proceeding, corroborated Ramirez' announcement of a
meeting and Gutierrez' remark about violating government
4 All dates hereinafter are in 1975, unless specified to the contrary laws, but was unable to confirm or deny that Ramirez was
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present to hear Gutierrez' remarks. For reasons related be-
low, I credit Gutierrez only where her testimony has been
corroborated by other evidence, and, accordingly, I find
insufficient evidence that Ramirez heard Gutierrez' re-
marks.
On examination by counsel for the Charging Union, Gu-
tierrez also testified that in early September she was elected
to the Union's negotiating committee, and that as a result
she passed out membership applications to three or four of
her coworkers. The record reflects that Ruiz was also elect-
ed to the negotiating committee, but what the record does
not reflect is that Gutierrez' election to the committee and
her subsequent conduct were known to the Respondent.
Upon the whole of the record, therefore, I find that the
Respondent's knowledge of Gutierrez' union and concert-
ed activities is limited to the prior unfair labor practice
case and her appearance as a witness in the representation
hearing, but does not extend to her other alleged activities
more proximate in point of time with her discharge.
In support of Gutierrez' testimony that she suffered an
allergic reaction to the glue used in making Posture Bond
mattresses , the General Counsel adduced the testimony of
Dr. Eva Lee Snead. Dr. Snead testified that her records
reflect that Gutierrez came to her office on May 10, com-
plaining of headaches and dizziness. Dr. Snead had treated
Gutierrez on prior occasions, but could neither recall nor
substantiate by her records that Gutierrez had previously
complained of the adverse effects of the glue. On May 10,
however, Gutierrez told Dr. Snead that she had been work-
ing with some strong smelling glue in a hot and poorly
ventilated room, and believed this to be the cause of her
illness. Dr. Snead described Gutierrez' appearance as pale
and yellowish, she conducted some tests and gave Gutier-
rez a slip stating that she had been working with an indus-
trial glue in a poorly ventilated room, and complained of
headaches and weakness. In the slip given to Gutierrez, Dr.
Snead advised that those glues are usually quite toxic, and
Gutierrez should avoid them, or be subjected to the glue in
a well ventilated environment.
The record also reflects that Gutierrez furnished Dr.
Snead with a sample of the glue and the name of the manu-
facturer, but it is not clear whether these items were fur-
nished to Dr. Snead on May 10, or at the time of Gutierrez'
subsequent visit to her doctor on May 22. There is no cred-
ible evidence in the record that Dr. Snead submitted the
glue sample for analysis, but she did call a local poison
control agency and ask for a report on the glue based upon
the identity of the manufacturer. According to Dr. Snead,
she was principally concerned with the possibility of car-
bon tetrachloride in the glue, because of the danger of a
liver disorder. On a date which is not established in the
record, the poison control agency called Dr. Snead, assur-
red her that the glue did not contain carbon tetrachloride,
but that the glue was volatile and could cause headaches
and dizziness. On the basis of the report Dr. Snead diag-
nosed Gutierrez' complaint as a drug reaction and chemi-
cal irritation of the mucous membrane, and, accordingly,
gave Gutierrez the slip mentioned above. Dr. Snead also
testified that she had a telephone conversation with some
representative of the Respondent, in which she explained
that although the glue did not contain carbon tetrachlo-
ride, the glue could be dangerous, could cause headaches
and dizziness, and should be used in a well-ventilated
room.
With due regard for a physician's special ability to diag-
nose the cause of an illness, I find very little in Dr. Snead's
testimony to corroborate Gutierrez' contention that she
was unable to work with the glue because of its toxic ingre-
dients. Dr. Snead did not testify with any specificity what
examination of Gutierrez revealed. On the basis of Gutier-
rez' statement that the glue caused her illness, Dr. Snead
inquired of the poison control agency, and without any
analysis of the sample provided, she adopted the conclu-
sion that the glue caused Gutierrez' dizziness and head-
aches. While Dr Snead testified to the propensity of the
glue to cause headaches and dizziness, she would not testi-
fy to the chemical content of the glue or the reasons why it
induced the adverse reactions determined by the poison
control agency. Similarly, in discussing the matter in her
telephone conversation with Sol Schnitzer, Dr. Snead ex-
plained only that the glue did not contain carbon tetrachlo-
ride, and that it was toxic, particularly in poorly ventilated
areas. In like manner, Dr. Snead's testimony was evasive
on the issue of whether Gutierrez' reaction was induced by
actual use of the glue, or whether her complaints could be
equally attributed to the presence of the glue fumes in the
area where she was employed.
Steven Schnitzer, the Respondent's vice president, testi-
fied that the Company began the manufacture of Posture
Bond mattresses in February 1974, and that in June 1975
Gutierrez complained to him that the glue used for Posture
Bonds was causing her hands to break out. Steve Schnitzer
told Gutierrez that the Company would investigate the
problem. Steve Schnitzer also testified that a subsequent
investigation through the manufacturer of the glue and
other licensed dealers of the King Koil Company, revealed
there was no problem with the glue. In addition, the Com-
pany submitted samples of the glue complained of by Gu-
tierrez, plus samples of two other glues used after Gutier-
rez' discharge, to Southwester, Analytical Chemicals, Inc.
The chemical analysis revealed no acidic content sufficient
to attack the skin. Steve Schnitzer further testified that the
Company was concerned primarily as to whether or not the
glue complained of by Gutierrez contained polyvinyl chlo-
ride, and that the investigation revealed that this chemical
was not present.
Sol Schnitzer testified that he first became aware that
Gutierrez was not using the glue for Posture Bond mat-
tresses when Steve Schnitzer told him that Gutierrez had
complained of a rash on her hands and nausea . Sol Schnit-
zer contacted the manufacturer of the glue, Fuller Compa-
ny, and he also contacted other franchises of the King Koil
Company. The reports received back by Schnitzer indi-
cated no problems with the glue. The thrust of the investi-
gation conducted by Schnitzer was to determine whether
the glue contained any polyvinyl chlorides, or other toxic
solvents. A report received back from the Chief Chemist of
the Fuller Company revealed that both glues used by the
Respondent were water-based adhesives, contained neither
polyvinyl chloride nor other toxic solvents.
Sol Schnitzer subsequently determined that Gutierrez
had persisted in her refusal to make Posture Bond mat-
IMPERIAL BEDDING COMPANY 1563
tresses, and on June 20 he called Gutierrez to his office.
The tape recorded results of this interview differ markedly
from Gutierrez' version of her interview by Schnitzer,
which she testified occurred in May, immediately after her
May 10 visit to Dr. Snead. At the outset of the interview
Schnitzer asked Gutierrez why she couldn't make Posture
Bond mattresses. Gutierrez replied that the glue made her
nauseous, that she was allergic to the glue, and that her
doctor's statement said there was a possibility of hepatitis.
Schnitzer asked that Gutierrez give him a statement that
the glue could cause hepatitis. Gutierrez objected to this
request, but offered to show Schnitzer the slip from her
doctor. Schnitzer persisted in his request that Gutierrez ex-
plain how the glue affected her, and what the doctor had
told her. Gutierrez answered that the doctor had told her
that the glue contained chemicals which had an adverse
effect on her health. Schnitzer replied that he had good
authority that the water-based glue had none of the proper-
ties which would have an adverse effect on Gutierrez, and
directed her to start making Posture Bond mattresses.
Schnitzer gave this direction several times, which he cou-
pled with a threat to replace Gutierrez if she refused. Gu-
tierrez subsequently agreed to make the glue mattresses,
but as the record reflects, she reneged on her agreement.
The record also contains a second tape recorded conver-
sation of June 20. Employees Carrie Schwartz and Mary
Helen Ruiz came to Sol Schnitzer's office and volunteered
to do all of Gutierrez' work on the Posture Bond mattress-
es. Schnitzer refused the volunteers' offer, stating that the
building of Posture Bonds was a part of Gutierrez' fob, and
that he had to insist that she perform this necessary part of
her duties. Schnitzer also told Schwartz and Ruiz that he
would replace Gutierrez if she continued to refuse to make
Posture Bonds.
After his interview with Gutierrez on June 20, Sol
Schnitzer went to Gutierrez' work place and asked her for
the slip from her doctor. Gutierrez did not have the slip
with her, but brought it to Schnitzer on the following Mon-
day. Schnitzer called Dr. Snead on the same day, and
asked about the notice that Gutierrez was allergic to the
glue used in the Company's manufacturing processes. Dr.
Snead replied with a conversation about polyvinyl chlo-
rides as a hazard to health and the volatile contents of the
glue. Knowing that the glue did not contain polyvinyl chlo-
ride, and that it was water-based, Schnitzer did not pursue
the matter.
On September 17, the Respondent had a large order for
Posture Bond mattresses, and Schnitzer found that Gutier-
rez was not making this type of mattress. Schnitzer's ver-
sion of the termination conference does not differ in
marked respect from the versions adduced through Gutier-
rez, Schwartz, and Ruiz. Although the Respondent con-
tends that Gutierrez left the premises without being dis-
charged, I reject the contention. From all of the evidence I
find that Schnitzer gave Gutierrez a choice of making Pos-
ture Bond mattresses or being replaced. Gutierrez chose
not to make Posture Bonds, and she was terminated.
In assessing what reliance is to be placed on the testimo-
ny of the several witnesses in this proceeding, it is neces-
sary to further review the whole of Gutierrez' testimony.
Gutierrez was subjected to a strenuous cross-examination,
and the contents of this cross-examination reflect the inac-
curacy of Gutierrez' testimony on direct examination. The
inaccuracy is further evinced by a comparison of Gutier-
rez' testimony in this proceeding with her testimony on like
and related matters at a hearing before the Texas Employ-
ment Commission (TEC) on December 12, 1975.5
Gutierrez' testimony about the approximate dates of ger-
mane events is one reason to question the reliability of her
testimony Humans vary in the extent of their ability to
recall with specificity the dates of even crucial events, but
Gutierrez' estimates are uncommonly far of the mark. It is
part of the General Counsel's overall contention here, that
Gutierrez' refusal to make Posture Bond mattresses ex-
tended from early Sprang to Fall 1975, and was condoned
by the Respondent until September 17. It is also a part of
the General Counsel's overall contention that Gutierrez'
discharge was motivated by her union activities immedi-
ately preceding September 17. The timing of events is es-
sential to both legs of this contention.
Gutierrez testified that the Respondent did not begin the
manufacture of Posture Bond mattresses until March or
April 1975, while all of the evidence in the record, includ-
ing testimony of the General Counsel's witness, is that this
manufacturing process began in February 1974. Gutierrez
also testified that in April she had a conversation with
Steve Schnitzer about her problem with the glue, and that
Schnitzer told her that she would have a job as long as
Schwartz and Ruiz were willing to do her dirty work. Ruiz
testified that the conversation with Steve Schnitzer took
place late in the summer. Schwartz testified on direct ex-
amination that the conversation with Steve Schnitzer oc-
curred in August, and on cross-examination she testified
once that the conversation occurred about I month before
Gutierrez' discharge, and the second time testified that it
took place around August. I find that the conversation
with Steve Schnitzer took place approximately 1 month be-
fore Gutierrez' discharge, and I further find on the basis of
the testimony of Ruiz and Schwartz, that Steve Schnitzer
threatened all three employees with replacement if they re-
fused to build Posture Bond mattresses.
Gutierrez' testimony of when she first visited the doctor
concerning her problem with the glue is extremely conflict-
ing and contradictory. Dr. Snead's records reflect that Gu-
tierrez came to her with a complaint about the effects of
the glue on May 10, and from the record as a whole I find
that Dr. Snead gave her the physician's slip on or shortly
after that date. Gutierrez testified that her conference with
Sol Schnitzer took place in May, after she received the
doctor's slip concerning the effects of the glue. All other
evidence in the record is that Sol Schnitzer called Gutierrez
to his office on June 20. The crucial nature of this date is
the more apparent because Gutierrez had in her possession
the doctor's slip given her by Dr. Snead on or shortly after
May 10. If, as Gutierrez now contends, she had proof from
her physician of the adverse effects of the glue, why did she
retain it for more than 30 days, and then produce it only
when called upon to do so by Sol Schnitzer?
5 I have not accepted the decision of the Commission on Gutierrez' unem-
ployment claim as dispositive in any sense of the allegations of this pro-
ceeding, and I have considered the proceeding before the TEC only as it
tends to shed light on the assessment of Gutierrez' credibility.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discrepancies in Gutierrez' testimony are not limited
to the dates of events and the timing of circumstances On
cross-examination Gutierrez denied vehemently that she
ever informed anyone from the Respondent's management
that the glue used to make Posture Bonds caused her to
have a rash The recording of her interview by Sol Schnit-
zer on June 20 reflects, however, that Gutierrez told
Schnitzer that the glue gave her a rash and caused her
hands to peel Gutierrez repeated the same contention at a
later stage of her June 20 conversation with Sol Schnitzer
On cross-examination Gutierrez testified that she was in-
formed by Dr Snead that Gutierrez had hepatitis caused
by the glue According to Gutierrez, Snead confirmed this
in a letter sent to her after her first visit to the doctor in
early April Gutierrez then testified that it was not a letter
sent by Snead, but the results of the tests Dr Snead had
conducted, and that Gutierrez sent Dr Snead's analysis to
the insurance company The record is also clear that Gu-
tierrez told Sol Schnitzer that her doctor told her there was
a possibility she had contracted hepatitis from the glue Dr
Snead's testimony reflects, however, that she never told
Gutierrez she had hepatitis, and did not state in any letter
that the glue caused hepatitis Dr Snead testified further
that although she gave Gutierrez a note based on the re-
sults of her May 10 examination and the report from the
poison control agency, she could not testify that she gave
Gutierrez any note, slip or letter confirming the results of
the laboratory tests she performed
In all, I do not credit Gutierrez' testimony, and I find
that the General Counsel has not established that Gutier-
rez' physical ailments were caused by the glue used to
make Posture Bond mattresses Gutierrez' testimony that
the glue had an adverse effect ranging from rash to hepati-
tis simply does not equate with the facts adduced through
other evidence This finding is amply supported on the ba-
sis of the evidence reviewed above and it is further support-
ed by the record evidence of the Respondent's work place
and the conditions under which Posture Bond mattresses
were built Gutierrez' contention is that the glue caused her
physical reaction only when she was required to engage in
the actual process of applying the glue to the materials
used in manufacturing Posture Bond mattresses At all
times from the date of her return to the build-up depart-
ment in January 1975 to her discharge on September 17,
Gutierrez worked in the immediate vicinity where employ-
ees Ruiz and Schwartz were making glue mattresses Gu-
tierrez' work table was located in the middle between work
tables used by Schwartz and Ruiz Schwartz' work table
was located approximately 5 feet from Gutierrez', and
Ruiz' work table was directly opposite at a distance of ap-
proximately 11 feet Both employees used glue to make
Posture Bond mattresses, and in addition a fan, located
about 15 feet away from Schwartz' work table, blew direct-
ly over the glue barrel and Schwartz' work table toward
Gutierrez Notwithstanding the close proximity to the
source of the glue and the glue work being performed, Gu-
tierrez complained about the glue only when called upon to
use it in the actual performance of her duties In the light
of Dr Snead's testimony, the toxic effect of the glue result-
ed from its chemical content when used in a poorly venti-
lated room Assuming these to be the facts, Gutierrez'
physical reaction to the glue would have been triggered by
her mere presence in the room, and not limited to the actu-
al application of the glue
It appears to be the General Counsel's contention,
shared by the Charging Union, that once a charge of dis-
crimination has been found meritorious, the employee who
was the object of the discrimination has an insurance poli-
cy protecting him against discipline for any breach of
working conditions or rules of conduct The contention
does not equate with the state of the law and the interpre-
tation of the National Labor Relations Act It is settled
that involvement in union or concerted activities does not
immunize an employee from the imposition of disciplinary
action 6 In Klate Holt Company 7 the Board held
The mere fact that an employer may desire to termi-
nate an employee because he engaged in unwelcomed
concerted activities does not, of itself, establish the
unlawfulness of a subsequent discharge If an employ-
ee provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlaw-
ful
These appear to be the circumstances surrounding the
Respondent's discharge of Gutierrez She was engaged in
concerted activities and ordered reinstated because of the
Respondent's discrimination At a later time, in April 1975,
she appeared as a witness on behalf of the Union at a
representation case hearing Both Gutierrez' concerted and
union activities were remote in point of time to her termi-
nation, and, on grounds of lack of proof of knowledge in
the Respondent, I have rejected the General Counsel's con-
tention that Gutierrez' more recent activities on behalf of
the Union prompted her discharge
I am similarly impressed in this proceeding with the lack
of any substantial evidence of the Respondent's union ani-
mus The General Counsel argues that the Respondent's
animus is proved by the contents of a letter which Sol
Schnitzer read to the employees on September 10, and later
posted on the company bulletin board The letter was the
subject matter for the meeting which Ramirez announced
to Gutierrez and Ruiz on the morning of September 10
The General Counsel concedes that the contents of the
letter do not violate the provisions of the National Labor
Relations Act, and contrary to his argument I find that the
contents fail to prove the Respondent's union animus The
letter advised the employees of the Union's certification,
and announced the Company's intent to bargain with the
Union with an open mind In addition, the letter detailed
the rights of employees to abstain from union membership
and activities, and the possible alternatives, including a
strike, if agreement could not be reached with the Union
on a contract
6 Tower Foods Inc d/b/a Tower of the Americas Restaurant 221 NLRB
1260 (1975)
7 161 NLRB 1606 1612 and cases cited therein at fn 3 (1966)
IMPERIAL BEDDING COMPANY 1565
I similarly reject the General Counsel's contention that
Gutierrez was subjected to disparate treatment, because
the Respondent previously condoned another employee's
refusal to work with materials which generated an adverse
physical reaction The evidence in support of this conten-
tion reflects that in November 1974, employee Carrie
Schwartz developed a rash on her hands and arms, which
she claimed was caused by a new type of material used in
the manufacture of mattresses The Respondent agreed
that Schwartz would not be required to use the new materi-
al so long as she could work with a nonallergic material in
stock However, if the old material ran out, it was under-
stood that Schwartz would go home until the matter of the
allergic material could be investigated The record reveals
that the problem resolved itself and Schwartz returned to
using the allergy inducing materials
The case of Gutierrez does not equate with the case of
Carrie Schwartz There is no evidence that Schwartz ada-
mantly refused to use the material There is evidence that
the new fabric did induce a rash, and Schwartz was only
excused from using the material so long as other materials
were available and until the situation could be investigated
In the case of Gutierrez, however, she adamantly insisted
that she would not make Posture Bond mattresses, even
after the Respondent's investigation revealed that the glue
had no properties to cause Gutierrez' alleged physical dis-
tress In addition, based upon my analysis above, the Re-
spondent had every reason to question Gutierrez' claim of
allergy induced by the glue as a manufactured device to
escape performance of her assigned duties
I have found above that the General Counsel has not
proved by a preponderance of the evidence that Gutierrez
was physically affected when she used glue to make Pos-
ture Bond mattresses A contrary finding would not, how-
ever, alter the necessity to conclude that Gutierrez was dis-
charged for cause, and not because of her union and
concerted activities Assuming, arguendo, that Gutierrez
was allergic to the glue and experienced a physical reac-
tion, those facts would not deprive the Respondent of a
right to replace her if she refused to make Posture Bond
mattresses The statute which is the basis for this proceed-
ing does not regulate an employer's right to hire and retain
employees based upon their ability to perform the work
assigned Employees are only protected in the tenure and
terms and conditions of their employment against discrimi-
nation motivated by union or concerted activities Not-
withstanding the Respondent here may have been delight-
ed that Gutierrez placed herself in a position warranting
discharge, there is no evidence that the Respondent's impo-
sition of discipline was motivated by her concerted or
union activities
CONCLUSIONS OF LAW
I The Respondent, Imperial Bedding Company, is an
employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 The Union, Southwest Regional Joint Board, Amal-
gamated Clothing Workers of America, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5) of the
Act
3 The General Counsel has not proved that the Respon-
dent violated the National Labor Relations Act in any re-
spect
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to the provisions
of Section 10(c) of the Act, I hereby issue the following
recommended
ORDERS
The complaint herein should be, and it hereby is, dis-
missed in its entirety
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions, and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes