International Medication Systems, Ltd.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1197 (N.L.R.B. 1985)

INTERNATIONAL MEDICATION SYSTEMS
International Medication Systems , Ltd. and Califor-
nia Teamsters Public , Professional and Medical
Employees , Local Union No. 911 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 21-
CA-16588, 21-CA-16678, and 21-CA-16925
29 March 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 September 1979 the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding,' in which it found that
the Respondent had threatened, interrogated, and
coerced employees and had created the impression
of surveillance in violation of Section 8(a)(1) of the
Act and had discriminatorily discharged Frances
Lavendera and Lucila Guzman in violation of Sec-
tion 8(a)(3) of the Act.
The Board ordered the Respondent to cease and
desist from its unlawful conduct, and to offer full
and immediate reinstatement to Lavendera and
Guzman, and to make them whole for any losses
they may have suffered as a result of the Respond-
ent's unlawful discrimination.
In the proceeding before the administrative law
judge, the Respondent refused to comply with the
General Counsel's subpoena directing it to produce
its 1977-1978 books and records of employees who
failed to report to work as scheduled. The subpoe-
na also requested production of the Respondent's
records showing the names of all employees em-
ployed during 1978, and their dates of hire, layoff,
recall, and termination. Administrative Law Judge
James M. Kennedy imposed a preclusion order on
the Respondent as a sanction for its refusal to
comply with the subpoena. The judge's order per-
mitted the General Counsel to adduce by second-
ary means evidence contained in the withheld doc-
uments. The sanction also barred the Respondent
from rebutting the secondary evidence by means of
cross-examination or through introduction of the
documents it had refused to produce. Subsequently,
the Board applied to the United States Court of
Appeals for the Ninth Circuit for enforcement of
its Order. In an opinion dated 2 April 19812 the
court enforced the Board's findings that the Re-
spondent had threatened, interrogated, and coerced
its employees in violation of Section 8(a)(1). The
court, however, denied enforcement of the Board's
i 244 NLRB 861 (1979) Neither Chairman Dotson nor Members
Hunter and Dennis participated in that case
2 640 F 2d 1110
1197
8(a)(3) findings because they were based, in part,
on secondary evidence that the Respondent had
not been permitted to rebut. The court found that
the Board lacked authority to compel compliance
with its subpoena and to impose sanctions for non-
compliance. That authority, the court determined,
rests exclusively with the Federal district courts.
Thus, because the Board failed to seek judicial en-
forcement of its subpoena and "because the second-
ary evidence is essential to the finding that Laven-
dera and Guzman were improperly discharged,"
the court remanded this portion of the case for the
"taking of additional evidence and an opportunity
to seek enforcement of the subpoenas in district
court." 640 F.2d at 1116.
On 27 January 1982 the Board remanded the
proceeding to the Regional Director. Pursuant to
that order the hearing was reopened before Admin-
istrative Law Judge Kennedy who, on 28 Septem-
ber 1982, issued the attached decision on remand.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in re-
sponse to the Respondent's exceptions.
Having carefully considered the Board's decision
in the original proceeding in light of the entire
record, the exceptions,3 briefs, and the court's
remand, which we recognize as binding for the
purpose of deciding this case, we have decided to
affirm the judge's rulings,4 findings , and conclu-
sions and to reaffirm the Board's original Order as
modified.5
s The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
4 At the original hearing Lavendera testified that on certain occasions
Jose Campero , Miriam Penero, and Daisy Ramero failed to report to
work as scheduled , but had not been terminated The judge overruled the
Respondent's objection to the introduction of this evidence as it was re-
lated to the subpoena and thus "was an attempt to rely on secondary evi-
dence " In accordance with his previous order, the judge barred the Re-
spondent from cross -examining Lavendera about this testimony At the
reopened hearing , the Respondent moved to strike Lavendera ' s testimony
regarding her observation of Campero 's absence The judge denied the
motion on the ground that Lavendera's observation of what she saw and
observed was primary , not secondary The Respondent agreed that her
testimony about what she saw was primary , but argued that the inference
to be drawn from her testimony-Campero was absent without permis-
sion yet was not terminated-was clearly secondary We grant the Re-
spondent's motion to strike this portion of Lavendera's testimony be-
cause, although it is primary evidence , the judge at the original hearing
mischaracterized it as secondary and consequently barred rebuttal of it
For the same reason we strike, sua sponte, that portion of Lavendera's
testimony regarding the absences of Penero and Ramero Our decision to
strike this limited part of her testimony, however , in no way detracts
from the judge's ultimate finding , with which we agree , that the Re-
spondent's asserted defense for discharging employee Guzman was a pre-
text
5 We shall modify the Order and notice by ordering the Respondent to
remove from its files any reference to the unlawful discharges and notify
Frances Lavendera and Lucila Guzman that this has been done
274 NLRB No. 180
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board reaffirms
the Order issued in this case at 244 NLRB 861 and
orders that the Respondent, International Medica-
tion Systems, Ltd., South El Monte, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful discharges of employees Frances Laven-
dera and Lucila Guzman and notify them in writ-
ing that this has been done and that the discharges
will not be used against them in any way."
2. Substitute the attached notice for that issued in
the original case at 244 NLRB 861.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
The National Labor Relations Act gives all em-
ployees the following rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
To refrain from any or all such activity
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which imposes
a lawful requirement that employees become
union members.
WE WILL NOT create the impression that our em-
ployees' union activities are under surveillance.
WE WILL NOT interrogate our employees about
their union activities or whether they signed au-
thorization cards on behalf of California Teamsters
Public, Professional, and Medical Employees,
Local Union No. 911, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other union.
WE WILL NOT recruit our employees to report
on the union activities of other employees.
WE WILL NOT threaten our employees with loss
of their jobs (whether by discharge, forced quits,
or plant closure) to discourage them from seeking
union representation.
WE WILL NOT tell our employees that union rep-
resentation is futile.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because they engage in
union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights set forth above which are guaranteed
by the National Labor Relations Act.
WE WILL offer Frances Lavendera and Lucila
Guzman full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed.
WE WILL make them whole for any loss of earn-
ings they may have suffered as a result of our dis-
crimination against them, including interest there-
on.
WE WILL notify Frances Lavendera and Lucila
Guzman that we have removed from our files any
reference to their discharge and that the discharge
will not be used against them in any way.
INTERNATIONAL MEDICATION SYS-
TEMS, LTD.
DECISION ON REMAND
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge This
case was originally heard before me on December 11, 12,
and 13, 1978. On April 5, 1979, I issued my decision find-
ing, inter alia, that Respondent had violated Section
8(a)(3) and (1) of the Act when it discharged two em-
ployees, Frances Lavendera and Lucila Guzman, on
April 7 and July 24, 1978, respectively. On September 5,
1979, the Board adopted my decision.' The United
States Court of Appeals for the Ninth Circuit refused to
enforce the Board's Order and, on April 8, 1981, re-
manded the matter for the taking of further evidence to
give the General Counsel an opportunity to enforce in
United States district court a subpoena duces tecum with
which Respondent had refused to comply.
On January 27, 1982, the Board issued its order re-
manding the proceeding to the Regional Director. Pursu-
ant to notice, the hearing was reopened before me on
June 15 and closed on June 17, 1982. Before the re-
opened hearing commenced, the General Counsel re-
issued the subpoena in question and Respondent filed a
petition to revoke On May 24, 1982, I denied the peti-
tion Thereafter Respondent produced the materials
sought by the subpoena and district court proceedings
became unnecessary
1 244 NLRB 861 (1979)
INTERNATIONAL MEDICATION SYSTEMS 1199
1. THE SCOPE OF THE REMAND
The subpoena, as originally issued, sought "books,
cards and records" relating to attendance records and
personnel files containing records of discipline meted out
to employees on attendance matters This included infor-
mation regarding the treatment of employees who failed
to report to work without notifying Respondent and
failed to timely report to work at the end of vacations or
other leaves of absence, and what the Company's re-
sponses to those attendance failures were One portion of
the subpoena was directed at records relating to certain
named individuals believed to have been involved in
such attendance questions. The subpoena also sought
data regarding the hires and terminations for the calen-
dar year 1978 including names, dates, job classifications,
and departments to which they were assigned as well as
job descriptions
In 1978 I denied Respondent's effort to obtain revoca-
tion of that subpoena It thereafter refused to comply, re-
sulting in my imposing a preclusion sanction upon it.
That sanction permitted the General Counsel to adduce,
through secondary means, evidence regarding those
questions, simultaneously prohibiting Respondent from
rebutting the secondary evidence by later producing the
primary evidence which it had earlier refused to
produce
The court of appeals , while agreeing that the material
sought was relevant, held that Section 11(2) of the Act
(29 U.S C. § 161(2)) was the exclusive means by which
the Board must enforce subpoenas.2
The court found that the Board and I had relied on
the secondary evidence and that insofar as Lavendera's
discharge was concerned the secondary evidence was
"essential" to finding her discharge illegal and that with
respect to Guzman the secondary evidence established
that she had received disparate treatment , i.e., evidence
of discrimination . It therefore remanded those portions
of the case "for the taking of additional evidence and an
opportunity to seek enforcement of the subpoenas in Dis-
trict Court."
When the hearing opened on remand, the General
Counsel moved to strike from the record all secondary
evidence I granted that motion.3 The General Counsel
supplemented his case-in-chief by virtue of four stipula-
tions and entry in the record of some exhibits which had
been obtained by the subpoena He then rested
In order to permit Respondent to further cross-exam-
ine the witnesses which he had called in 1978, the Gen-
eral Counsel attempted to obtain the presence of all I1
witnesses Of the 11, he was able to find and subpoena
only 7. These were alleged discriminatees Lavendera and
Guzman, as well as their fellow employees Lucero,
Robles, Saavedra, Espinoza, and Lopez. He was unable
2 In so holding, the court disagreed with NLRB v C H Sprague &
Son, Inc, 428 F 2d 938 (1st Cir 1970), and NLRB v American Art Indus-
tries, 415 F 2d 1223 (5th Cir 1969), cert denied 397 U S 990 (1970), and
Bannon Mills, 146 NLRB 611, 633-634 fn 4 (1964)
3 The motion was directed piecemeal at various pages and lines of the
transcript The list is found at pp 445ff and 508 of the transcript for June
15, 1982 In addition , cross -examination relating to those specific items
was also stricken
to locate four others, Campero, Castro, Garcia, and
Perez.
Respondent , relying on NLRB v. Donnelly Garment
Co, 330 U.S 219 (1947), urged me to reopen the entire
proceeding to permit a wide range of cross-examination
of these witnesses , seeking something approaching a new
trial . My reading of the remand order as well as Donnelly
caused me to conclude that the remand was limited in
scope to the question of permitting Respondent to
present only evidence which it had been precluded from
presenting due to the sanction Accordingly, while I per-
mitted Respondent to adduce any evidence it wished
which it had been barred from pursuing in 1978 pursuant
to the terms of the sanction , I barred it from raising new
issues and rehashing matters which had previously been
fully litigated in 1978 . Thus, Respondent cross-examined
Guzman and Lavendera with regard to tardiness, vaca-
tions, and attendance rules . It also cross-examined Saave-
dra regarding the nature of her layoff in April 1978.
With respect to Lucero and Robles , I ruled that the mat-
ters on which Resptident sought to examine them were
outside the scope of the remand and Respondent made
an offer of proof regarding their testimony It released
Espinoza and Lopez
With regard to the four missing witnesses , I required
Respondent to make an offer of proof regarding their
testimony as well . In each case, I found that the matters
which Respondent sought to litigate were outside the
scope of the remand . In that sense, therefore , their fail-
ure to appear does not prejudice Respondent 's case with
respect to the remanded issues 4
As each of the individuals were recalled by the General Counsel for
the purpose of permitting Respondent to cross -examine them , Respondent
again sought and obtained production of each witness ' pretrial statement
or affidavit Some of the original statements were in Spanish and the 1978
translations , which the Regional Office had used in determining to issue
the complaint , were also produced On receiving them , Respondent as-
serted that they were not "official translations" as required by the Ninth
Circuit's recent decision in NLRB v Dora! Building Services, 666 F 2d 432
(1982) Although Respondent was unable to point with specificity what
areas of each affidavit might be problem areas insofar as the remand was
concerned , I directed the General Counsel to obtain "official" transla-
tions as opposed to the ones which had been made in 1978 In this
regard , I should note that the 1978 translator , then a Board employee,
was no longer available The new translations were likewise made by
Board agents , each of whom certified at the bottom of each translation
that he or she was bilingual in English and Spanish and had translated
the affidavits accurately Respondent, not satisfied that these were "offi-
cial" translations, has moved that the witnesses ' direct testimony be
stricken in their entirety as the General Counsel has supposedly not com-
plied with the Board's Jencks rule (Sec 102118 (b)(1) of the Board's
Rules and Regulations) and Doral I denied the motion First , Respond-
ent, at the time of the motion , had in its possession both the original and
two English translations Furthermore , an official translator was present
in the hearing room who , if any question had arisen , could have been
asked to clarify or give her own translation Respondent , however, raised
no substantive questions regarding those portions of the affidavits dealing
with the remanded issues or anything else Second , absent any Board rule
defining "official translation," the certification of a Board employee that
he is bilingual and that he has translated the matter to the best of his abil-
ity appears to be as "official " as the Board can get The Board is not
bound by court rule or any Federal or state law which might be applica-
ble to either the Federal or state court systems with respect to official
translators and their certifications of competence A Board employee's
statement certifying his bilingual ability and that he has translated a docu-
ment to the best of that ability contains a sufficient guarantee of trustwor-
Continued
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE OLD EVIDENCE
A. Lavendera
In the original decision, without relying on any sec-
ondary evidence, the Board found that Lavenders was a
leading union organizer and that Respondent was aware
of it. She was seen in parking lots and lunchrooms solic-
iting signatures She obtained the assistance of two
others to perform the same task. One of her assistants
was Guzman. Furthermore, supervisors Gonzales and
lead person Contreras, found by the Board to be a super-
visor and by the court to be at least an individual who
employees could believe was speaking for Respondent,
both admitted to employees that Lavendera had been
dismissed because of the Union. In addition, union
animus has been found by the Board and affirmed by the
court consisting of unlawful interrogation regarding em-
ployee union activities, and seeking the identity of union
leaders and supporters. This was coupled with express or
implied threats of reprisals, including the discharge of
union supporters. Indeed, from Respondent's inquiry
about the identity of the union leaders , one may deduce
from that fact alone that Respondent intended to levy
some sort of adversity upon him or her.-5 In Lavendera's
case, her immediate supervisor, Dr. Chat, had learned
from another employee, Campero, that Lavendera had
conducted a union meeting at her home the night before
he discharged her. Significantly, the day before discharg-
ing her, Chat had asked her to forgo a scheduled vaca-
tion , saying she was needed; he also told her she would
receive an anniversary pay raise on her return from va-
cation.
At the 1978 hearing, Chai justified her discharge
saying Lavendera's job was no longer needed for, ap-
proximately a week before hand, he had determined that
certain inhalation medication no longer required sterility
testing. As Lavendera's job was to prepare the media for
such testing , her duties were no longer necessary. Yet he
asked Lucero to perform those tasks after Lavendera
was discharged and she did so until she quit several days
later because of illness. Before leaving, Lucero trained
another individual to make the media.
Beyond her duties in preparing the testing media, La-
vendera was a trained quality assurance (QA) inspector.
She was a versatile and valued employee and during the
general layoff which occurred in 1977 had been trans-
ferred to the media-making duties so Respondent would
not lose its investment in having trained her.
In addition, on the morning of her discharge, Chat told
Lavendera that he did not care if she had signed a union
card and knew he could not fire her for doing that, but
said "after lunch I can find any excuse to let you go."
That afternoon he did so.
Chai did not deny Lavendera's testimony regarding
asking her to forgo her vacation and telling her that she
was due an anniversary raise. He did deny saying he
thiness, considering criminal sanctions under 18 U S C §1001 that might
be invoked against him for falsifying such a translation, to warrant its ac-
ceptance In these circumstances, I reaffirm my denial of Respondent's
motion to strike the employees' direct testimony
5 See NLRB v Finesdver Mfg Co, 400 F 2d 644, 646 (5th Cir 1968)
would find an excuse to fire her He asserted the only
reason Lavendera was discharged was because her job
was no longer needed
B. Guzman
Guzman, as noted, was one of Lavendera's card solic-
iting assistants Lavendera had told Guzman's supervisor,
Ruiz, that Lavendera was going to engage in card solici-
tation and Ruiz had asked Lavendera if she was not
afraid. When Lavendera replied she was not, Ruiz asked
Lavendera not to involve her in the organizing
In addition to engaging in publicly soliciting cards,
Guzman served as the Union's observer during the July
6 NLRB election, returning momentarily from her vaca-
tion to do so. Thus, Respondent was aware of her union
activities and believed her to be a union leader. Of
course, the same union animus factors are present as dis-
cussed in reciting the facts surrounding Lavendera's dis-
charge.
Ruiz discharged Guzman when she failed to return
from a 3-week approved absence She had sought 2
weeks' vacation, I day of which fell on Independence
Day, a paid holiday, and another week's leave of ab-
sence. According to Guzman, as the holiday fell within
her vacation, company policy allowed her not to return
until Tuesday, July 25. Ruiz said she expected Guzman
to return on Monday, July 24, on the expiration of the 3-
week period She asserted that the leave of absence
which had been granted was only a 4-day leave and that
the paid holiday fell in the third week.
One curious aspect to the scheduling was a statement
by Ruiz to Guzman at the time the vacation was being
scheduled that she ran the risk of being replaced during
her leave of absence.
III THE NEW EVIDENCE
At the remanded hearing, after the secondary evidence
had been stricken, the General Counsel supplemented his
case by offering several stipulations One was that gener-
al layoffs, including unit employees, occurred between
June 24 and 27, 1977, and another occurred on April 28,
1978. The parties also stipulated that Respondent has a
"policy" to the effect that employees who are absent 3
or more consecutive days are subject to automatic termi-
nation . Lastly, the parties stipulated that Respondent's
records show that 15 employees during the period cov-
ered by the subpoena duces tecum (i.e., calendar year
1977 and 1978) were fired with a notation that they were
being discharged for failing to appear for work for 3
consecutive days. The stipulation covers only the period
ending July 24, 1978, but the records themselves show
that two others were discharged later that year for the
same reason. In addition, the General Counsel offered
some subpoenaed documentation: An employee dis-
charge slip dated October 21, 1977 for Theresa Valen-
zuela stating she was being discharged for "excessive tar-
diness without explanations after two warnings " On the
back of the slip was a list of six attendance transgres-
sions, some of which appear to be tardier and others
which have no explanation, together with a timecard,
The next exhibit is a package of employee change re-
INTERNATIONAL MEDICATION SYSTEMS
quests and supporting material for Gloria Vizcarra who
sought a leave of absence between December 26, 1978.
and January 22, 1979 She appears to have been dis-
charged on January 29 for not having reported back to
work as scheduled from her leave of absence A tele-
gram was sent to her informing her of the discharge. It
should be noted that the discharge occurred nearly a
week after her schedule return date
The next exhibits are two employees change requests
for Mercedes Soto showing that she was hired on De-
cember 17, 1976, and was discharged on January 1, 1977,
after having failed to call in for a week. This was fol-
lowed by a change request for Lori J Schroeter, dated
April 23, 1979, showing a termination on that date. She
had been hired on December 14, 1978, and the stated
reason for her discharge was that she was "out 24 days"
during that period and had a "bad attitude towards
work "s
Respondent's examination of Lavendera and Guzman
elicited no testimony that differed in any way from that
to which they had testified in 1978 With respect to Saa-
vedra, she too testified in the same fashion. Regarding
her, however, it appears that her layoff, previously dis-
cussed in the original decision, occurred on April 26,
1978, 2 days before the general layoff which is the sub-
ject of one of the stipulations
The management witnesses called by Respondent,
Ruiz,7 and Chai, refined their testimony somewhat Re-
spondent also called two of Ruiz's assistants, Irene
Medina and Erma Moreno In addition, Respondent
called an assistant to Chai, a part-time consultant in
microbiology, Joan Bogue
In connection with Lavendera's discharge, Chai testi-
fied that his quality assurance department coordinated
layoffs with other departments when general layoffs oc-
curred, such as those in 1977 and 1978. However, he tes-
tified that he also laid off single individuals at other
times He cited four examples including chief mircrobio-
logist Gaynor Gaynor, however, was the subject of an
investigation regarding her alleged failure to perform
certain laboratory tests Chai downplayed that factor in
explaining her discharge In addition, he pointed out that
he laid off three other employees by themselves at vari-
ous times Rossler on February 27, 1977, Cancio on May
13, 1977; and Bermudez on June 24, 1977. In each case,
Chai testified that the employee was laid off for "lack of
work "8 Cross-examination developed the fact that Ber-
mudez was an evening QA inspector and that Rossler
and Cancio were microbiologists Furthermore, with re-
spect to replacing Gaynor, Chai testified that Bogue, as a
part-time consultant, replaced her as chief microbiologist.
Although his assistant, microbiologist Andy Movius, was
6 An additional employee change request and timecard were also re-
ceived, G C Exh 40, but the General Counsel does not now appear to
be relying on it for probative value as it is not discussed in his brief
' Yvonne Ruiz is now known as Yvonne Escobedo due to a change in
marital status
8 In support of that reason, Respondent introduced unemployment in-
surance claims forms on which someone, probably the claimant, wrote
that he or she had been laid off for lack of work At the hearing, I ad-
vised the parties that I would not rely on the claimant's statement for the
truth of that matter, but would consider Chai's testimony and give it the
weight I deemed to be appropriate
1201
also hired after Gaynor's departure, Chai denied that he
was Gaynor's replacement
Respondent called Bogue as a corroborating witness
and she testified that as a part-time microbiology consult-
ant she "believes" that the quality assurance department
coordinated its layoffs with other departments because it
lost some laboratory employees in the April 28, 1978
layoff. She also testified that QA employees were laid off
at times when the plant laid off no others
With respect to Guzman's discharge, Respondent at-
tempted, through Ruiz, Medina and Moreno, to buttress
its contention that Guzman was fired solely because she
failed to return timely from her leave of absence and that
she was more vulnerable to such a discharge because of
her history of tardiness To this end, all three pointed out
that Guzman was a table supervisor in the packaging de-
partment.9 One of the duties of the table supervisor was
to coordinate the packaging teams as they,readied prod-
uct for shipment While there is not a great deal of evi-
dence on the point, individuals in Guzman's capacity
were required to arrive on time so that they could first
scrub and, second, arrange employees at their tables to
ready them for the process. If the table supervisor did
not arrive on time, Medina, Moreno, possibly Ruiz, or
perhaps a senior experienced employee would have to
take the tardy table supervisor's place and perform her
tasks When she arrived, an awkward readjustment might
be required Documentary evidence was adduced to the
effect that Guzman was a constant transgressor in this
area and had received one written warning as well as a
number of oral admonitions. The written warning, admit-
ted to by Guzman in the 1978 proceeding, occurred on
March 3 of that year. Ruiz and her assistants testified
that employees who were chronically tardy were often
discharged They cited several instances where this was
so. The General Counsel, however, demonstrated that
many of these were probationary employees who were
discharged at the end of their 2-month probation period.
Moreover, the rule against tardies was not uniformly
enforced. The testimony was that an employee could re-
ceive no more than two written warnings prior to dis-
charge. However, this can hardly be described as a pro-
gressive discipline system for individuals were dis-
charged with fewer than two warnings In practice, the
rule is an arbitrary one, for some persons would be dis-
charged upon oral warnings only, some on one written
warning, and others on two written warnings This
system is not designed to induce, improved attendance
Furthermore, none of the employees discharged for ex-
cessive tardiness had been employed anywhere near as
long as Guzman, who had been hired in 1974
Respondent also introduced the vacation schedule on
which Guzman's scheduled vacation and leave of ab-
sence are show in. That document, which was posted on
the wall behind Ruiz' desk, clearly shows that the weeks
8 Although Respondent now wishes to contend that a-table supervisor
is a statutory supervisor, such contention was not made in 1978 1 barred
evidence on the matter as being outside the scope of the remand In any
event, Guzman wore a blue coat and all blue coats, with the exception of
Contreras , have earlier been found by the Board to be leadpersons and
not statutory supervisors
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning July 3 and July 10 are charged fully to vaca-
tion, notwithstanding the fact that Independence Day fell
within the first week The week of July 17 is marked
identically except that it shows an approved leave of ab-
sence for the entire week. There is nothing to suggest
that 1 day of the week of July 17 was to be charged as
credit against the holiday. Ruiz testified, however, that
she specifically told Guzman of that fact. Moreover, she
amplified her 1978 testimony by pointing once again to
Respondent's Exhibit 3 showing that the leave of ab-
sence which had been requested was for July 18 to July
21 and that the vacation was from July 3 to July 17 By
Ruiz' analysis, since July 17 was a Monday, that Monday
was to be charged off to vacation. There is no evidence,
however, that Guzman ever saw that document and she
denies the matter was explained to her in that fashion. I
note further that the vacation/leave-of-absence request is
dated June 22, 1978, well after the organizing was under-
way and even after Lavendera's discharge And Guzman
testified that her 1977 vacation, which also included a
holiday, had been handled differently and she had not
been obligated to return until the following Tuesday,
Monday being the holiday credit.
IV. ANALYSIS AND CONCLUSIONS
In analyzing the foregoing facts, meshing the new evi-
dence with that heard in 1978, I remain convinced that
Respondent discharged both Lavendera and Guzman for
reasons prohibited by Section 8(a)(3) and (1). All of the
considerations cited in my first decision, except to the
extent that they may have been colored by secondary
evidence , stand fast . Respondent has adduced no evi-
dence sufficient to cause me to change my credibility
evaluations of its witnesses Thus, it appears that the day
before Lavendera was discharged Chai asked her to
forgo a scheduled vacation and to accept cash instead.
After she declined, he told her she would receive, on her
return from vacation, an anniversary raise. This conflicts
with his own testimony that a week beforehand he had
decided to abandon certain sterility testing. Moreover,
on Lavendera's discharge, sterility testing continued at
least for a time. Even the remanded record does not
clearly show when that stopped. The only thing which
intervened between April 6 and April 7 when Lavendera
was discharged was the fact that she conducted a union
meeting at her home on the evening of April 6. On the
following day, Chai learned about it from Campero, dis-
cussed it with Lavendera, told her he could find an
excuse to discharge her and that afternoon did so. In this
regard , I do not now find it essential , nor did I in my
earlier decision, to conclude that Lavendera was dispar-
ately treated with respect to being laid off alone as op-
posed to being included in a large group. Respondent's
Union animus is replete throughout the record and has
been affirmed by the court, including threats to dis-
charge union leaders The elements of knowledge and
timing are also present, not to mention the admissions
Respondent's defense, that Lavendera was discharged
because her job was no longer needed, does not with-
stand scrutiny. The job continued for some time after
Lavendera was discharged. And, while a general layoff
showing has been made that Lavendera would have been
included. Indeed, in the 1977 layoff she was deemed so
valuable as to warrant transfer to avoid loss of her skills.
The question of disparate treatment under this analysis
need not be reached Even if it were required, it is clear
that where Respondent has laid off an employee for
"lack of work," on occasion that reason has been a eu-
phemism. Certainly the Gaynor "layoff" was not solely
because Respondent lacked work for her to do. She was
under fire for failing to perform her job. Moreover, at
least one person and possibly two were hired to perform
the tasks she had performed. Clearly work remained.
Thus, it appears well within the realm of probability that
Respondent often used "lack of work" as a means to
conceal from an employee the true motive for a dis-
charge. In all these circumstances , therefore , I find the
General Counsel's prima facie case that Lavendera was
discharged for her union activities to stand unrebutted.
Indeed it seems clear that on these facts Respondent's as-
signed reason for the discharge is nothing more than a
pretext . In view of my finding Respondent 's defense to
be a pretext , it is unnecessary to analyze the matter fur-
ther under the Board 's Wright Line10 doctrine as that is
principally aimed at evaluating the weight between com-
peting motives , one lawful and one unlawful , rather than
simply determining that one is false More to the point in
analyzing Lavendera 's discharge is the Ninth Circuit's
decision in Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466 at 470 (1966), where the court said, "if [the
trier of fact] finds that the stated motive for a discharge
is false, he certainly can infer that there is another
motive. 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 surrounding
facts tend to reinforce that inference ." I make that infer-
ence here.
A review of the facts surrounding Guzman's discharge
leads to a similar result . Guzman was a known union or-
ganizer Moreover, she utilized 1 day of her vacation
period to serve as the Union's observer at the NLRB
election . Less than 3 weeks later , not having been to
work during that time as she was vacationing and on a
leave of absence, she was barred from returning to work.
Quite clearly the chart on Ruiz' wall is consistent with
what Guzman believed to be the directive regarding her
return. There is no suggestion on the chart that I day of
the week of July 17 was to be assigned for vacation.
Moreover, Ruiz' odd threat at the time the vacation was
requested in June to the effect that Guzman might be re-
placed during her leave of absence continues to concern
me. There was no reason to have made such a statement
unless it was designed as trap for an unwary employee.
Indeed , Ruiz' marking the calendar in the fashion she did
is consistent with such a theory.
But even if I assume that Guzman 's misunderstanding
of the scheduling was simply a terrible mistake, the fact
remains that one other who committed the same mistake
was not as precipitously discharged. The discharge of
Gloria Vizcarra is the event. It is true that her separation
did occur approximately 3 weeks later on April 28 , no 10 Wright Line, 251 NLRB 1083 (1980)
INTERNATIONAL MEDICATION SYSTEMS 1203
occurred 6 months after Guzman was discharged, but the
fact remains that Vizcarra was due to report on January
22 after a leave of absence and was not discharged until
7 days passed. This raises the question regarding why
Guzman was not given at least some opportunity to ex-
plain herself. That opportunity was never granted, for
Ruiz issued her discharge telegram on Monday evening.
While this might be viewed as disparate treatment, I do
not solely do so but view it also as evidence of precipi-
tousness, an often conclusive factor in determining the
lawfulness of a discharge. i l Here there is evidence that
Respondent was attempting to trap the employee, and it
must be observed that a grace period for Guzman such
as that given Vizcarra would have permitted Guzman to
escape that trap. If Vizcarra benefited from the 3-day
rule, Guzman did not.
Beyond that, my earlier conclusions regarding the ap-
plication of the tardy rules to her remain valid. First, it is
true that Guzman's attendance record was less than laud-
atory. Even so, Respondent was tolerating it and had tol-
erated it. Furthermore, Given her seniority and the fact
that Respondent apparently valued her abilities, for it
had made her a table supervisor, Respondent reacted
somewhat uncharacteristically to her July 24 absence. It
is true that Respondent was operating under a rather ar-
bitrary system Even so, it was not uncommon to issue
second tardy warnings, Yet it did not do so in her case.
Apparently Respondent, particularly Ruiz, had no inter-
est in issuing a second tardy warning whether or not one
was warranted. It appears to me that it was willing to
put up with Guzman's tardiness and to condone it, at
least until she appeared, in the middle of her vacation, as
the Union's observer. Respondent never gave Guzman a
chance to return thereafter and now relies on the very
arbitrariness of its rule to justify the discharge as lawful.
I will not accept such reasoning. Thus, the assigned
reason for her discharged, chronic tardiness, coupled
with a failure to return from leave as scheduled, is disbe-
lieved. It, like the reason advanced in Lavendera's case,
is simply a pretext. This is not, therefore, a dual-motive
case and Shattuck Denn applies. All the elements of an
unlawful discharge are present. Guzman had engaged in
activities protected by the Act, organizing and serving as
the Union's election observer. Respondent was aware of
her activities and had exhibited a great deal of animus
against such activity including the threat to discharge
union leaders. As soon as it could find an excuse after
she served as the Union's observer, it fired her. That
excuse was a pretext. I have no doubt that Guzman's dis-
charge was a naked reprisal for her union activities.
In conclusion, I find that the General Counsel has
proven that Respondent discharged both Lavendera and
Guzman for activities protected by the Act and that Re-
spondent has not provided sufficient credible grounds to
rebut that proof.
Accordingly, I make the following
RECOMMENDATION
" Great Chinese American Sewing Co, 227 NLRB 1670 (1977), enfd.
578 F 2d 251 (9th Cir 1978), NLRB v V & V Castings, 587 F 2d 1005
(9th Cir 1978), Bill Johnson's Restaurants v NLRB, 660 F 2d 1335 (9th
Cir 1981)
On these findings of fact, pursuant to the remand
orders of the United States Court of Appeals and the
Board, I recommend that the Board reaffirm the remedi-
al order it issued in this case at 244 NLRB 861 (1979).