Joe'S Plastics, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 210 (N.L.R.B. 1987)

210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joe's Plastics, Inc. and Luis Salazar
Joe's Plastics, Inc. and United Rubber , Cork, Lino-
leum and Plastic Workers of America, AFL-
CIO-CLC. Cases 21-CA-21045 and 21-CA-
21245
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 31 August 1984 Adminstrative Law Judge
Frederick C. Herzog issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief, cross-exceptions, and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions,2 only to the extent consistent with this
Decision and Order.3
1. On 6 February 1982,4 approximately 8 to 10
of the Respondent's employees gathered at a park
near the plant before they were to meet with a
union official. As the employees were leaving, Su-
pervisor Mendoza, who had been present at the
gathering, 5 said to employee Ramon Ramirez,
"Don't get involved, because there are problems
that you're going to get in. We better leave." The
two then left together. The judge concluded that
Mendoza threatened Ramirez with reprisals in vio-
lation of Section 8(a)(1). We disagree.
The complaint does not allege that Mendoza
threatened Ramirez. The evidence of Mendoza's
statement came out incidently during the testimony
i The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
2 In finding that the Respondent engaged in unlawful surveillance and
interrogations, the judge relied on, inter alia, the small-plant doctrine In
view of the judge's finding that Supervisor Mendoza knew of the em-
ployees' union activities, we find it unnecessary to pass on the judge's re-
liance on the small-plant doctrine
The judge found, and we agree, that the Respondent violated Sec
8(a)(1) by creating the impression of surveillance when Supervisor Men-
doza responded, when asked what he was doing at the employees' union
meeting, that he had his source of information
a As a majority of the Respondent's employees speak Spanish, some
exclusively, we find that the remedial policies of the Act will be best ef-
fectuated by ordering the Respondent to post copies of the notice in Eng-
lish and Spanish
4 All dates are in 1982
5 We agree with the judge that Mendoza's presence at the park consti-
tuted unlawful surveillance
of employee Luis Salazar who stated that he over-
heard Mendoza make the statement to Ramirez. Sa-
lazar was not cross-examined on this point, Rami-
rez did not testify at all, and Mendoza was not
questioned about the alleged threat, although he
was asked about his presence at the meeting. In
these circumstances we find that the incident was
not fully litigated. Accordingly, we reverse the
judge's conclusion that Mendoza's statement violat-
ed Section 8(a)(1) of the Act. See Middletown Hos-
pital Assn., 282 NLRB 541 (1986).
2. The judge found that by providing employees
with coffee and doughnuts at a safety meeting held
on 30 March the Respondent unlawfully granted a
benefit to the employees. We disagree. Although it
was unusual for the Respondent to provide refresh-
ments at meetings, we believe that coffee and
doughnuts are too minimal a "benefit" to interfere
with, restrain, or coerce the employees in the selec-
tion of their representative. Furthermore, providing
such refreshments is a legitimate campaign device.
Accordingly, we dismiss this portion of the com-
plaint. We agree, however, with the judge's finding
that at this meeting the Respondent unlawfully so-
licited grievances and impliedly promised to
remedy them. We note that although the Respond-
ent referred to the meeting as a "safety" meeting,
such meetings were unusual and previously had not
involved employees to the extent shown here, and
the credited testimony indicates that the primary
subject of discussion was the Union. See NLRB v.
Rich's of Plymouth, 578 F.2d 880, 883 (1st Cir.
1978). Moreover, the Respondent admits asking
employees what they needed to do their work, to
which employees responded with specific sugges-
tions. Further, the Respondent's co-owner, La-
Fountain, wrote down the employees' suggestions
and told employees that similar meetings would be
conducted in the future. We thus agree with the
judge that although some of the employee sugges-
tions concerned increased safety, such matters, as
well as other issues raised by the employees, consti-
tuted grievances of the employees, and the Re-
spondent's solicitation of such grievances and its
implied promise of remedial action violated Section
8(a)(1).
3. The General Counsel excepts to the judge's
finding that the General Counsel did not allege as a
violation the institution and maintenance of the Re-
spondent's written warning system and to the
judge's failure to find the violation. We find, con-
trary to the judge, that the complaint does in fact
allege that the Respondent violated Section 8(a)(1)
and (3) by establishing a written warning system
and we further find that the General Counsel
proved this allegation.
287 NLRB No. 22
JOE'S PLASTICS 211
The use of a warning system as part of a discipli-
nary procedure is permissible when the procedure
is not implemented in response to protected union
activities of employees . When the warning system
is used to discourage union activity , it is impermis-
sible. In this case we find the warning system was
instituted in response to union activity . The Re-
spondent ' s knowledge of the employees' union ac-
tivity dated at least to January and the system was,
as the judge found , either instituted or "revital-
ized" in February at the height of , that activity.
Concurrent with the revitalization of the warning
system , supervisors interrogated employees about
their union activities , engaged in surveillance of
their union meetings , and created the impression
that their union activities were under surveillance.
The Respondent 's union animus is thus clearly es-
tablished. Further , the judge discredited co-owner
LaFountain 's testimony that there was a warning
system in place before union activity began, and
concluded , instead , that the Respondent had no
system or guidelines on when to administer disci-
pline or firm policies regarding written warnings
prior to the discharge of union activist Salazar.
The Respondent 's knowledge of and animus
toward union activity, coupled with its lack of any
prior disciplinary guidelines or policies on written
warnings and its institution of the warning system
at the height of union activity , establish a prima
facie case that the warning system was instituted
for discriminatory purposes . In the absence of any
evidence proffered by the Respondent that it
would have established the written warning system
regardless of union organizing, we find the Re-
spondent violated Section 8(a)(3) and ( 1) of the Act
by instituting the warning system.6
4. Having concluded that the Respondent's
warning system was unlawful , ' it follows that the
attendant warnings to Salazar and Robledo and the
discharge of Salazar , being premised on warnings
received under the unlawful system , also violated
Section 8 (a)(3) and ( 1). Accordingly, we reverse
the judge 's dismissal of these complaint allegations.
Regarding Salazar , the judge found he had
worked for almost 4 years at the Respondent's fa-
cility and was considered a valuable and skilled
employee, although somewhat troublesome because
of his repeated failure to punch his timecard. Sala-
zar was reminded constantly that he was required
6 Contrary to the assertion of our dissenting colleague , we are not
fashioning a presumption based on the mere coincidence in timing be-
tween the institution of the warning system and the union activity in find-
ing this violation Rather, applying the analysis of Wright Line, 251
NLRB 1083 ( 1980), enfd 662 F 2d 899 (1st Cir 1981 ), we find that the
General Counsel has established a prima facie showing of a violation
based on the various facts set forth above , which include timing , and that
the Respondent has failed to rebut the prima facie case
to punch his card , but within 2 weeks of the Re-
spondent 's knowledge of Salazar 's union activism,
the timecard problem , previously tolerated by the
Respondent , suddenly resulted in a written warning
that Salazar was required to sign in order to return
to work . Salazar refused to sign the warning and
told the Respondent 's official , Richard Mason, that
he could fire Salazar if he wanted . Mason initially
told Salazar he was fired , but moments later urged
Salazar to sign the warning and return to work.
When Salazar refused , Mason asked him a second
time to sign and on Salazar 's second refusal Mason
left to have Salazar's final check made out. After
instructing a secretary to make out the check,
Mason asked Salazar a third time to sign and Sala-
zar again refused . About an hour and a half later,
after Salazar had unsuccessfully attempted to get
other officials of the Respondent to overturn
Mason 's insistence on having the warning signed,
Salazar returned to Mason and said he would sign
the warning and return to work . Mason , however,
refused to take him back.
The judge found that "all the necessary ingredi-
ents exist for finding that Salazar ' s discharge was
,motivated by considerations which are illegal, i.e.,
retaliation for having engaged in union activities,"
yet he declined to find a violation because Salazar
repeatedly refused to acknowledge and sign a valid
disciplinary warning . Thus, the judge concluded
that if an employee repeatedly refuses to acknowl-
edge valid warnings and then repeatedly refuses
offers of reemployment , as did Salazar , he must
accept the danger that the employer may change
his mind , as did Mason.
Central to the judge's analysis is his finding that
the discharge occurred as a result of the refusal to
sign a valid disciplinary warning. As stated earlier,
however , we find the warning system is unlawful,
and any warning issued pursuant to it is therefore
invalid . Inasmuch as the discharge was based on
the application of an unlawful warning system, we
conclude that a prima facie case has been made
that the discharge is unlawful. We further find that
the Respondent failed to establish that the conduct
for which Salazar was given the warning was suffi-
cient to rebut the prima facie case. Thus, Salazar
was warned for failing to punch his timecard. The
Respondent did not initially determine that he
should be discharged for this infraction . It dis-
charged Salazar only after he refused to sign the
warning and then three times offered to reemploy
him if he would sign the warning The Respondent,
therefore, has not shown that it would, in any
event , have discharged Salazar for his failure to
punch the timecard . Nor can the Respondent estab-
lish that it would have discharged Salazar for re-
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
peatedly refusing to sign the warning even in the
absence of union activity because the warning
system itself was unlawfully instituted in response
to union activity. Accordingly, we find that Sala-
zar was discharged in violation of Section 8(a)(3)
and (1) of the Act.
As with Salazar, Robledo, a known union sup-
porter, was issued a written warning pursuant to
the unlawful warning system thereby establishing a
prima facie case that his warning was unlawful. We
further find that the Respondent failed to show it
would have issued the warning to Robledo in the
absence of union activity. The Respondent's super-
visor, George Marinakis, credibly testified that the
warning had been given after Robledo was late for
work four times in 1 week. However, Marinakis
conceded that his warning to Robledo was the first
he had issued in approximately 2 years even
though Robledo had been late on other occasions
during this period. Furthermore, he admitted other
employees arrived late for work at times, but had
not received warnings. The Respondent submitted
no other evidence in defense of its action. We con-
clude that the Respondent failed to rebut the Gen-
eral Counsel's showing that Robledo was issued a
warning in violation of Section 8(a)(3) and (1) of
the Act.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3.
"3. By interrogating employees concerning their
own or other employees' union activities, leanings,
or sympathies; engaging in surveillance of such ac-
tivities or by creating the impression among its em-
ployees that it was engaging in surveillance of such
activities; and soliciting grievances and impliedly
promising to remedy the same, the Respondent has
violated Section 8(a)(1) of the Act."
2. Redesignate Conclusion of Law 4 as Conclu-
sion of Law 5 and substitute the following for Con-
clusion of Law 4.
"4. By instituting a written warning system, issu-
ing written warnings to Enrique Robledo and Luis
Salazar, and discharging Luis Salazar to discourage
union activity, the Respondent has violated Sec-
tions 8(a)(3) and (1) of the Act."
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, it shall be ordered
to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act.
To remedy the discharge found unlawful herein,
the Respondent shall offer Luis Salazar immediate
and full reinstatement to his former position of em-
ployment or, if that position no longer exists, to a
substantially equivalent position , without prejudice
to his seniority or other rights and privileges, and
make him whole for any loss of earnings he suf-
fered as a result of the Respondent ' s unlawful ac-
tions. Loss of earnings shall be computed as pre-
scribed in F. W. Woolworth Co, 90 NLRB 289
(1950), plus interest computed in the manner and
amount prescribed in New Horizons for the Retard-
ed.7
Also, having unlawfully issued written warnings
to employees Salazar and Robledo, the Respondent
shall be ordered to remove from its records any
reference to such warnings and shall inform each
of these employees , in writing , that such references
have been removed and that the conduct found un-
lawful herein will not be used as a basis for further
personnel actions concerning any of them . Sterling
Sugars, 261 NLRB 472 (1982).
ORDER
The National Labor Relations Board orders that
the Respondent, Joe's Plastics, Inc., Los Angeles,
California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees concerning their
own or other employees' union activities, leanings,
or sympathies
(b) Engaging in surveillance of the union activi-
ties of their employees and creating the impression
among its employees that it was engaging in sur-
veillance of such activities.
(c) Soliciting grievances and impliedly promising
to remedy them if the employees refrain from se-
lecting a union as their collective-bargaining repre-
sentative.
(d) Issuing warnings to or discharging any em-
ployees for engaging in protected concerted activi-
ties.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Luis Salazar immediate and full rein-
statement to his former job or, if that job no longer
7 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after I January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
JOE'S PLASTICS 213
exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges; and make him whole, with interest com-
puted in accordance with the formula set forth
above in the remedy section, for any loss of earn-
ings he may have suffered as a result of his dis-
charge on 22 February
(b) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(c) Remove from its files any reference to the
warnings and discharge found unlawful herein, and
notify each of the individuals so warned and dis-
charged, in writing, that this has been done and
that evidence of the unlawful conduct will not be
used as a basis for future personnel actions against
any of those individuals.
(d) Post at it Los Angeles, California facility
copies of the attached notice marked "Appendix."8
Copies of the notice, shall be in English and Span-
ish, on forms provided by the Regional Director
for Region 21, after being signed by the Respond-
ent's authorized representative, shall be posted by
the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues, I would not find that
the Respondent unlawfully solicited and impliedly
promised to remedy employee grievances at the 30
March safety meeting On this date approximately
12 employees attended a meeting at the request of
the Respondent's president, Joe LaFountain. La-
Fountain asked the employees if there was any-
thing the employees needed to do their work. Sev-
eral employees responded, stating they needed
more earplugs and work gloves and that some
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
forklifts leaked oil. LaFountain wrote down their
comments and told the employees more meetings
would be held in the future. The Respondent had
very legitimate business reasons for seeking the em-
ployees' comments on safety matters. Certain prob-
lems arose regularly, e.g., employees not wearing
or improperly using safety gear, and the Respond-
ent reasonably wanted to ensure that the safety
issues discussed at the regular supervisory meetings
were understood by the employees. The Respond-
ent was not obligated to ignore operational prob-
lems affecting employee safety and productivity
just because an organizing campaign was in
progress. Under these circumstances, I would not
find that LaFountain's questions constituted an un-
lawful solicitation of grievances. Further, there is
no evidence to support a finding that the Respond-
ent impliedly promised to address the employees'
complaints. LaFountain merely took notes during
the meeting, which is insufficient in itself to create
a reasonable belief in the employees that their re-
quests would be granted. Therefore, I would find
that the Respondent did not unlawfully solicit em-
ployee grievances or promise to remedy them, and
I would dismiss these complaint allegations.
While I agree with my colleagues that the com-
plaint sufficiently alleges that the Respondent vio-
lated Section 8(a)(3) and (1) by establishing a writ-
ten warning system, I cannot agree with their con-
clusion that the system was instituted or "revital-
ized" because of the employees' union activities.
The record discloses that the Respondent had no
formal disciplinary system and no written guide-
lines on when to administer discipline. Employees,
were advised verbally by their supervisors of vari-
ous work rules or policies, e.g., drinking or gam-
bling on the premises, attendance, and punching in
or out. Verbal warnings and at least one written
warning had been issued prior to February 1982.
At that time, the Respondent's officials determined
that a system of written warnings was necessary to
document employee disciplinary problems At this
same time, the employees' initial organizing cam-
paign was getting underway.
On Monday, 22 February, employee Luis Sala-
zar, the plant's leading union adherent, was given
the first written warning under the system for fail-
ing to punch out on the previous Friday. When
Warehouse Supervisor Richard Mason gave Sala-
zar the warning slip to sign, Mason told Salazar
that he had been told many times to punch in and
out and the written warning would remind him to
do it. Production Supervisor George Marinakis ad-
vised Salazar that the Respondent had new rules
and if Salazar did not punch his timecard, he
would be given a warning.
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Contrary to my colleagues, I would find the
General Counsel has failed to sustain her burden of
establishing that the warning system was imple-
mented because the employees engaged in union
activities. The majority's finding is based wholly
on circumstantial evidence and the inferences
drawn therefrom. Such evidence does not support
a finding, let alone an inference, that the Respond-
ent was unlawfully motivated by the employees'
union activities.
As the judge noted, the Respondent's plan to im-
plement its written warning system coincided with
the organizing campaign. I will not presume that
by the mere coincidence of timing the Respondent
violated the Act.' The majority's reliance on such
a presumption is untenable particularly in light of
the judge's finding, with which I agree, that the
application of the warning system was not pretex-
tual.
Therefore, I would find that the Respondent did
not violate Section 8(a)(3) and (1) by instituting
and maintaining a written warning system as al-
leged. Accordingly, I would, for the reasons stated
by the judge, find that the Respondent did not vio-
late Section 8(a)(3) and (1) by issuing a warning to
Salazar and Robledo and subsequently discharging
Salazar.2
I See my concurring and dissenting opinion in Adams Super Markets,
274 NLRB 1334, 1336-1337 (1985), in finding that the General Counsel
has failed to establish a prima facie case
2 Regarding the 8 (a)(l) allegations involving Supervisor Mendoza, I
agree with the majority that his presence at the union meeting in the park
outside the plant constituted unlawful surveillance in agreement with the
judge, however, the majority further found that Mendoza's response,
when asked what he was doing at the meeting, that he had his source of
information , also created an unlawful impression of surveillance I find it
unnecessary to pass on whether Mendoza's response created the impres-
sion of surveillance, finding the violation would be cumulative and would
not affect the Order
I further agree with the majority that Mendoza's alleged threat to Ra-
mirez in the park was not fully litigated and this complaint allegation
should be dismissed However, even assuming the issue was fully litigat-
ed, I would find Mendoza's statement to be too ambiguous to constitute a
threat of reprisal Because Mendoza and Ramirez were friends and went
to the park together, the statement on its face could refer to any subject
the two men had been discussing Mendoza did not specifically refer to
the Union when he told Ramirez not to get "involved" nor did he identi-
fy the "problems" that would ensue The judge merely speculated that
Mendoza was threatening Ramirez that involvement with the Union was
fraught with problems Such speculation is not sufficient to support find-
ing the statement a threat Accordingly, on this basis, I would find that
Mendoza's statement was not unlawful and would dismiss this portion of
the complaint
Finally , I disagree with my colleagues decision , sua sponte , to require
the Respondent to post copies of the notice in English and Spanish In
the absence of a request by any party that the notice be posted in English
and Spanish , I would not disturb the judge 's order in this regard
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.
WE WILL NOT interrogate you about your own
or other employees' union activities, leanings, or
sympathies.
WE WILL NOT keep your union activities under
surveillance or create the impression that we are
doing so.
WE WILL NOT solicit your grievances and im-
pliedly promise to remedy them in order to induce
you to oppose a union.
WE WILL NOT issue warnings or discharge you
because of your activities in support of a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Luis Salazar immediate and full
reinstatement to his former position of employment
or, if his job no longer exists, to a substantially
equivalent position, without prejudice to his senior-
ity and other rights and privileges previously en-
joyed.
WE WILL remove from our files any reference to
the warnings issued to Luis Salazar and Enrique
Robledo and to the discharge of Luis Salazar, and
notify these employees in writing that this has been
done, and that evidence of these unlawful actions
will not be used by us as a basis for future person-
nel actions against such employees.
JOE'S PLASTICS, INC.
Salvador Sanders, Esq, for the General Counsel.
Michael A . Hood, Esq. (Paul, Hastings, Janofsky &
Walker), of Costa Mesa, California , for the Employer.
DECISION
STATEMENT OF THE CASE
FREDRICK C. HERZOG, Administrative Law Judge. On
February 25, 1982, Luis Salazar, an individual, filed a
charge in Case 21-CA-21045 On August 24, 1982, the
Regional Director for Region 21 of the National Labor
Relations Board filed a complaint based on Salazar's
charge, alleging, in general, that the Respondent has en-
gaged in various conduct in violation of Section 8(a)(1)
of the Act, including threats, surveillance, and interroga-
tion, and that Salazar had been illegally discharged in
JOE'S PLASTICS
violation of Section 8(a)(1) and (3) of the Act. By its
answer, Respondent denied that it had engaged in
wrongdoing.
On May 7, 1982, the charge in Case 21-CA-21245 was
filed by United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO-CLC (the Union)
against Joe's Plastics alleging that Enrique Robledo had
been discharged in violation of Section 8(a)(1), (3), and
(4) for having supported the Union and in retaliation for
his participation in a related R-case proceeding, when he
had been subpoenaed to appear as a witness on behalf of
the Union.
On September 29, 1982, the Regional Director for
Region 21 of the National Labor Relations Board issued
an order consolidating cases, consolidated amended com-
plaint, and notice of hearing in both cases. The com-
plaint alleged that the Respondent violated Section
8(a)(3) of the Act by issuing a written warning of disci-
pline to employees Salazar and Robledo pursuant to a re-
cently instituted written warning policy, by discharging
Salazar on or about February 22, 1982, and by transfer-
ring Robledo on or about April 23, 1982, to more oner-
ous work duties In addition to the various allegations of
8(a)(1) violations previously mentioned, the consolidated
complaint alleged that employee grievances were solicit-
ed and that promises to remedy them were held out to
the employees By its answer Respondent denies all
wrongdoing
Accordingly, this case was tried before me at Los An-
geles, California, on January 19, 20, and 21, 1983. At the
trial, all parties were afforded the right to participate, to
examine, and cross-examine witnesses, and to adduce evi-
dence in support of their positions. In addition, the par-
ties were afforded the right to file briefs and make all ar-
gument at the conclusion of the trial.
Based on the record thus compiled, plus my consider-
ation of the briefs filed by the parties, I make the follow-
ing
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The consolidated complaint alleges, and Respondent's
answer admits, that at all times material, Respondent, a
California corporation, has been engaged in the manufac-
ture and distribution of plastic raw materials from a facil-
ity located in Los Angeles, California, that Respondent
annually purchases and receives goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California, and that Respondent is
an employer engaged in commerce in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act I so find and conclude.
IT. THE LABOR ORGANIZATION
The consolidated complaint alleges, and the Respond-
ent's answer, as amended at the hearing, admits that the
Union is, and has been at all times material, a labor orga-
nization within the meaning of Section 2(5) of the Act I
so find and conclude.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
215
1. Whether Respondent terminated the employment of
Luis Salazar on February 22, 1982, for discriminatory
reasons, in violation of Section 8(a)(3) and (1) of the
Act?
2. Whether Respondent transferred Enrique Robledo
to more onerous work duties based on discriminatory
considerations in violation of Section 8(a)(3) of the Act?
3. Whether Respondent issued warnings to Salazar and
Robledo based on discriminatory consideration in viola-
tion of Section 8(a)(3) and (1) of the Act?
4. Whether Respondent violated Section 8(a)(1) of the
Act by threatening employees, or by soliciting griev-
ances from the employees and promising remedial action
thereon, by interrogating employees, by surveilling em-
ployees' union activities, or otherwise?
B. "Union Activities, " "Knowledge, " and Certain
8(a)(1) Violations
1 Facts
The Respondent, in furtherance of its business of man-
ufacturing plastic products, purchases scrap plastic mate-
rials from manufacturers of plastic products, grinds the
material and turns them into pellets, and in turn sells the
pellets back to the manufacturers Respondent's co-
owners are Ron Matik and Joe LaFountain. They consti-
tute Respondent's management team, together with Rich-
ard Mason, who has specific charge of shipping and re-
ceiving, warehouse operations, and maintenance, and
George Marinakis, who has charge of production Addi-
tionally, Respondent has three production supervisors,
Alberto Martinez, Gilberto Mendoza, and Alfredo Cano
Each reports to Marinakis. Martinez has charge of the
first (day) shift, Mendoza, the second (swing) shift, and
Cano, the third (night) shift i On March 3, 1982, the
Union filed a petition for a Board-conducted election
among Respondent's production, maintenance, and jani-
torial employees Pursuant to a stipulation for consent
election the Board held an election on April 15, 1982.
The results were that, of approximately 34 eligible
voters, 12 cast ballots in favor of the Union and 17 case
ballots against the Union, with 4 challenged ballots.
As is common, the dissatisfaction of one more employ-
ee coincided more or less with the advent of the Union
on the scene. Thus, in August and September 1981 Sala-
zar and other employees spoke, in the Respondent's cafe-
teria area, of their dissatisfaction over the failure or Re-
spondent to give them pay raises While discussing this
topic with 10-12 other employees, Salazar told them that
i While it is admitted that the three shift supervisors are supervisors
within the meaning of Sec 2(11) of the Act, Respondent argues in its
brief that they should not be considered members of Respondent's man-
agement, and are not possessed of the same authority as Matik , LaFoun-
tain, Mason, or Marinakis Indeed, Respondent denominates the three as
"working foremen" and as "low level supervisors " In the case of two of
these production supeivisors, Martinez and Mendoza , Respondent notes
that they are mere conduits for information passed between management
personnel, who speak only English, and the work force , which ranges in
size from 22 to 34 employees
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he intended to go to Mason and inquire about raises for
all of them, as he had done in the past S
Salazar had a conversation with Martnakis in late Oc-
tober 1981, telling him that the employees wanted a pay
increase. Martnakis promised to speak to LaFountain
about the matter
In late November 1981, Salazar approached Mason
and told him that employees were asking for a pay raise.
Mason responded that he had already talked to LaFoun-
tain and learned that the Respondent was not in a good
economic situation. Mason said he would talk it up with
LaFountatn once more, but the employees would just
have to wait until the situation changed
Also in late November 1981 Salazar called the Union3
and eventually spoke to its district director, Tony Rodri-
guez, about the possibility of organizing Respondent's
employees. Rodriguez took no action at the time, but
later4 mailed about 40 authorization card forms to Sala-
zar for execution by the employees.
Shortly after the new year Salazar and Rodriguez ar-
ranged for a meeting between the Union and the employ-
ees. The meeting was held on January 20, 1982, at the
Union's hall Approximately 10-13 employees, including
Robledo, attended and met with Rodriguez and another
representative of the Union named Perez. Rodriguez
asked them to select a spokesman. Salazar was named by
the men Rodriguez explained to the employees that he
would mail authorization cards to Salazar, and how they
were to go about joining the Union and filing out the au-
thorization cards. Before the meeting ended, they ar-
ranged for another meeting to be held on Saturday, Feb-
ruary 6, 1982.
After receipt of the cards on January 24, Salazar
began distributing them to other employees He did this
after the first shift ended at 3.30 p m , meeting employees
about half a block away from Respondent's facility. Over
the course of about 5 days he succeeded in getting ap-
proximately 18 cards filled out and executed Robledo se-
cured another four or five signatures of employees on
authorization cards. After work on Friday, February 5,
1982, Salazar was with a group of eight or,nine fellow
employees, helping two of them fill out an authorization
card. They were by Salazar's automobile, about half a
block from Respondent's facility. While there Salazar
saw LaFountain drive by very slowly, looking at the
group. No authorization cards were visible as he passed,5
as they would have been hidden.
2 While there was some question about just how much effort Salazar
expended on obtaining raises for anyone besides himself, it is nonetheless
conceded by the Respondent's main witness on this point, Mason, that
Salazar did, in fact, seek raises for at least two other employees
3 Actually, he called the Union's affiliated local union For brevity's
sake i use the term "Union," when referring to either
" Just how much later is unclear, as Salazar testified that he received
the cards on January 24, 1982, after the meeting between employees and
Rodriguez of January 20, 1982 1 find the discrepancy unimportant, but if
I were to resolve this factual matter I would find Salazar's version more
credible than Rodriguez'
5 LaFountain admitted seeing employees gathered around a car parked
a few feet away from the facility, in apparent reference to the same inci-
dent He was not asked what he had observed Next day he instructed
Mason to make sure employees were not standing around drinking beer
after work I find no violation in this incident
About noon of the next day, Saturday, February 6,
1982, prefatory to meeting with the Union's representa-
tives, Salazar and approximately 8 to 10 employees gath-
ered at a park about 2 blocks away from Respondent's
facility Salazar noted that Supervisor Mendoza was also
present.6
Mendoza, after initially indicating that he had merely
happened on the employees' gathering in the park on
February 6, 1982, admitted he had overheard Robledo
and another employee talking of the gathering , and that
he stopped at the park specifically to learn what the em-
ployees were doing. He admitted that he stayed even
after Salazar's challenge for about another 10 minutes,
and (going further than even Salazar 's testimony) that he
asked Salazar when he was going to start the meeting.
He stated that he arrived with one Ramon Ramirez
Salazar asked Mendoza what he was doing there, and
. . he told me he had his source of information.
So then the rest of the companions were feeling
nervous because he was there.
Then, as the employees were leaving for the meeting, Sa-
lazar told Ramon Ramirez to come along , only to hear
Mendoza tell Ramon Ramirez
Don't get involved, because there are problems that
you're going to get in. We better leave.
At that Mendoza and Ramon Ramirez left together.
Mendoza's version of these (and relevant surrounding
facts) not only fails to contradict Salazar's version, but
confirmed and fleshed out the factual scenario furnished
by Salazar. Thus, as examples of Mendoza's testimony
bearing on the questions of Respondent's "knowledge"
of the union activities of Salazar and the Respondent's
surveillance of employee union activities, creating the
impression thereof, or interrogation of employees about
their union activities, the following are noted by me:
(1) Mendoza, second shift supervisor admitted
that he and the other supervisors knew by late Jan-
uary or early February, 1982 that union organizing
was underway, and that it had been initiated by em-
ployees from the first shift As to whether or not
higher management officials also were possessed of
actual knowledge , he claimed ignorance , though he
ventured the opinion that they did not; but he was
definite in his admission that he and other supervi-
sors knew that both Salazar and Robledo were in-
volved with the Union
(2) Mendoza admitted that on the way home
from the gathering in the park on February 6, 1982
6 Mendoza admitted his presence at the employees ' meeting in the
park , and, a fortiori , his knowledge that Salazar and others were engaged
in activities on behalf of the Union Indeed , he went further and admitted
that he had heard of an organizing effort as early as a Christmas party in
1981, and that , among others , Salazar and Robledo had both then been
involved in the talk he overheard Further, Mendoza admitted that
around February 1, 1982, he observed Salazar attempting to bring author-
ization cards into the facility , he instructed Salazar that if he wanted to
do that he would have to do so outside As no violative conduct is al-
leged in this last connection , I make no finding
JOE'S PLASTICS 217
he asked employee Ramon Ramirez if he was inter-
ested in the Union, that he also asked why Ramirez
had come to the meeting, and that he also asked
whether Ramirez had signed an authorization card
Mendoza testified that Ramirez was a "personal"
friend of his, though not one who he socialized
with and that Ramirez denied to him that he had
any interest in the Union besides curiosity
(3) Mendoza admitted that on Monday, February
8, 1982 he talked to Salazar and Robledo, asking
them how many signed authorization cards ob-
tained Further, he admitted that despite Salazar's
rejoinder that it was none of his business how many
cards they'd obtained, he went further and asked
how their meeting had gone and what they'd talked
about to again be met by Salazar's evasive answer
of "nothing "
On March 3, 1982, the Union's petition for representa-
tion rights was filed As part of the investigation of the
petition's validity the Regional Director of the Board
scheduled a hearing for March 23, 1982 Robledo was
subpoenaed as a witness for the Union He attended the
hearing after showing the subpoena to LaFountain in
order to be excused from work.
2 Conclusions
Respondent argues vigorously that Mendoza, as well
as the other two first-line foremen, are not true supervi-
sors in the sense that their knowledge should not be
viewed as binding on the Respondent I disagree. Not-
withstanding the fact that Salazar had a somewhat
unique situation, taking him out of the "chain of com-
mand," it cannot be seriously contended from this record
that all three foremen had, and regularly used, various
powers mentioned in Section 2(11) of the Act Indeed, it
was judicially admitted at the trial that, regarding Men-
doza, the only "foreman," whose supervisory status is
now questioned, and who would have an impact on the
decision of this case, he is a supervisor of Respondent
within the meaning of Section 2(11) of the Act and is an
agent of Respondent within the meaning of Section 2(2)
and (13) of the Act
Taking Mendoza's candid testimony into account there
can be no doubt that at least some of Respondent's su-
pervisors gained knowledge by late January or very
early February 1982 that union organizational activities
were under way among the employees and that Salazar
was the leader of the effort, with Robledo and others not
far behind. Despite the unanimity of Respondent's wit-
nesses in denying that Respondent's management officials
were informed of these activities by Mendoza, or that
they learned of them by other means before the filing of
the petition, not only is there no clear warrant for failing
to apply the normal rule, which permits me to impute
the knowledge of a supervisor to the Respondent's man-
agement officials, but I would find that the facts, includ-
ing the small size of the Respondent's plant and the de-
monstrable case of communication there,7 preponderate
in favor of an opposite conclusion
The trial itself furnished ample evidence that neither
management officials nor rank-and-file workers are so
isolated by a language barrier, as portrayed by Respond-
ent's arguments I reject the contention that the "fore-
men" are, by virtue of being bilingual, utilized not as
true supervisors, but as mere conduits of information,
which must necessarily pass from time to time between
worker and manager. Throughout this trial the evidence
showed many and varied instances where, when commu-
nication was desired, it was immediately effected, even
without the need for an interpreter
Thus, when Mendoza questioned Salazar, Robledo, or
Ramirez, he violated the Act For, even under the prin-
ciples announced in Rossmore House, 269 NLRB 1176
(1984), it is required that employees be open and partisan
in their activities, or that the supervisor refrain from
overt threats, or other coercive conduct such as engag-
ing in surveillance or the impression of surveillance
I conclude that Mendoza, however innocent in his
intent, allowed his curiosity too much leeway, and that it
led to his violation of Section 8(a)(1) of the Act by inter-
rogating employees, by creating the impression of sur-
veillance by responding coyly to Salazar that he had his
sources; by going out of his way to attend a gathering of
employees who were considering the Union; by persist-
ing in watching the assembled employees despite an ob-
jection being voiced to his presence; and by actually
threatening Ramirez with "problems" if he "got in-
volved."8
C. The Warning System
It is alleged that in February 1982 Respondent institut-
ed, and has since maintained, an employee warning
system, and that it thereafter issued written warnings to
employee Salazar on February 19 and to employee Rob-
ledo on March 17 and May 5, 1982, because the employ-
ees engaged in union or other protected concerted activi-
ties
Inasmuch as it is not alleged that the establishment of
the warning system was, in and of itself, violative of the
Act, but only that application of the allegedly new warn-
ing system to employees Salazar and Robledo was viola-
tive of Section 8(a)(3) and (1) of the Act, specific discus-
sion of the facts relating to either case would seem best
reserved to the portion of this decision dealing with each
such alleged discrimmatee. Due to the way the evidence
was presented, however, and the difficulty in separating
the evidence, a description of the system and its oper-
ation is appropriate at this point
In the course of Salazar's testimony concerning events
occurring on the day of his discharge, he was questioned
at some length about Mason's insistence that he sign
some paper that Salazar himself denominated at various
' See Coral Gables Convalescent Home, 234 NLRB 1198 (1978), Friend-
ly Markets, 224 NLRB 967, 969 (1976), Hadley Mfg Corp, 108 NLRB
1641 (1954)
8 Although the depth of the friendship between Ramirez and Mendoza
seems slight, no personal relationship would permit interrogation if ac-
companied by such a threat
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
times as a "warning" or an "arrest." Acknowledging that
both Mason and Martnakis attempted to get him to sign
the paper, and that they assured him that he could go
back to work if he did so, as well as the fact that he re-
fused to sign, Salazar was ultimately directed toward a
conversation he had with Marinakis. He responded that
Marmakis had, in attempting to convince him to sign the
paper, explained to him, "Look, Luis, these are the new
rules in the company. Now, if you miss or you don't
punch a card, they're going to give you a warning." Fur-
ther, Salazar testified that he had never been told by
anyone of the existence of a system of written warnings
by the Respondent prior to that time
LaFountain initially testified that the Respondent insti-
tuted no new rules early in 1982 and posted no new
rules. He stated, instead, that the rules were in existence,
but were merely "organized" at the time. He admitted
that they had never been disseminated to employees, at
least in written form In explanation, he testified that
Mason and Marinakis were aware that the Respondent
had rules against drinking on the premises , gambling,
horsing around, etc , but that in February 1982 employ-
ees were informed of such rules through word of mouth
from Mason and Martnakis At a later point in his testi-
mony, LaFountain stated that there had been a meeting
among Matik, Marinakis, and himself prior to Salazar's
discharge. He said that, while he could not recall the
exact wording of the conversation, he did remember that
he told the group that the Respondent needed to have a
system-of written warnings and a system so that, when
they had a problem, they had a file to go back to. He
recalled that this conversation was occasioned by Mason
telling him that he had a problem with Salazar, and in
being unable to find out where Salazar was located, and
failing to punch out on the time clock He acknowledged
that prior to this time, no instructions had been given to
supervisors about giving written warnings to employees.
Finally, regarding LaFountain's testimony, it was clear
that LaFountain gave an affidavit prior to the trial to a
representative of the Board's regional office. Suffice it to
say that the-affidavit calls LaFountatn's initial testimony
on this point'into serious question confirming an already
poor impression I have formed from his demeanor
Thus, I have no hesitancy in determining that the
warning "system" was, in fact, "instituted," coincident
with the Respondent's observation of the need therefore
during the organizational campaign of February 1982.
Although Marinakis testified that he had caused a supply
of warning forms to be purchased as far back as 1980, it
is obvious from the testimony of both Mason and Marin-
akis, both of whom I found to be generally credible wit-
nesses, that no systems or guidelines on when to adminis-
ter discipline, such as discharge, existed prior to Salazar's
discharge, and that there were no firm policies regarding
written warnings prior to that time.
D. Salazar's Discharge
1. Facts
Salazar was employed by Respondent from April 1978
until his discharge on February 22, 1982. Working on the
day shift, he was classified as a mechanic and was pri-
marily used to paint and repair trucks or forklifts.
Throughout his tenure, apparently, Salazar was thought
of as a skilled and valued employee by Mason, the man-
ager, who seemed to have worked most closely with
him.
These sentiments were held by Mason notwithstanding
his further view that Salazar's (a) repeated failure to
have his timecard properly punched, and (b) absences
from work caused recurrent problems. Mason testified
that he reminded Salazar on an average of twice per
month that he was required to punch his timecards so
that Respondent could have a proper basis for figuring
his pay. And, recalled Mason, Salazar's habit was to
thereafter improve, but only for a short period of time
before requiring yet another reminder.
Summarizing , according to Mason, Salazar should be
viewed as a valuable, albeit troublesome, employee, one
who tried the patience of management officials. For ex-
ample, recounted Mason, Salazar demanded a raise of $2
per hour in January 1982 and threatened to quit if he did
not get it. Mason later told LaFountain and Matik of Sa-
lazar's demand, but recommended a raise of only 25
cents per hour. Management agreed on a 25-cent raise
and Salazar, true to his word, quit.
Subsequent discussions in late January 1982 involving
Mason, Matik, LaFountain, and Salazar led to Salazar's
reinstatement and acceptance of the 25-cent-per-hour
raise. Mason, moreover, promised to review his position
in 30 days, leaving open the possibility that Salazar
would then be given another raise of 25 cents per hour,
provided Salazar showed improvement in punching the
timeclock and in his attendance. Salazar agreed Mason
was admittedly rankled that Salazar had succeeded in
going "over his head" and "undermining his authority."
According to Mason, however, he was angrier yet be-
cause it was necessary for him to "speak to" Salazar sev-
eral more times regarding "forgetfulness" between Janu-
ary 26 and February 19, 1982.
On Friday, February 19, 1982, Salazar was at work,
and due to having a fever, sought to go home. Mason
was not there, so he spoke to one Bill Stephens, a driver-
salesman who had been left in charge. Stephens readily
granted the request to go home an cautioned Salazar to
punch out on the timeclock. Salazar then left.
A few minutes later, however, Stephens walked out-
side the office and observed Salazar talking to Marinakis.
So he said to him that he had thought he was going
home and asked if he had punched out yet. Martnakis re-
sponded, saying that Salazar was first going to run an
errand for him. Stephens then agreed, but again cau-
tioned Salazar to punch out and leave when the errand
was completed.
Later that afternoon Stephens was touring the plant
and was told that Salazar had gone home. On checking
to see the time of Salazar's departure, however, he noted
that Salazar had not punched out. Stephens pulled Sala-
zar's card from the rack and later, having explained the
events to LaFountain, was instructed by LaFountain to
write out a warning to Salazar.9 Stephens did so, filling
9 LaFountain admitted these facts
JOE'S PLASTICS 219
out a form entitled "Employee Reprimand " and check-
ing a box entitled , "Leaving Work Without Permis-
sion." t °
The next day, a Saturday, while at Mason's son's wed-
ding, LaFountain mentioned to Mason Salazar had left
work the day before without punching out and that Ste-
phens had written him a warning notice . LaFountain
told him to give it to Salazar on the following Monday.
Mason agreed , but, reminding LaFountain that he had al-
ready repeatedly talked to Salazar , asked for clarification
of his authority. LaFountain said he would leave it up to
Mason, and that, if necessary, he could fire Salazar.
On Monday morning, February 22, 1982, Mason called
Salazar into an office and said he understood that he had
left without punching out, that he had been told to do so
many times, and that he had a written warning notice to
remind him of it . Salazar questioned why he was being
given the warning , questioned why Stephens made it out,
and why Mason had not made it out. Eventually, howev-
er, Mason asked Salazar to sign it. Salazar refused re-
peatedly, and ultimately told Mason that "I 'm not goint
to sign it. You can fire me if you want." i t
Mason obliged, saying "You're fired."
However, moments later , Mason relented and said,
"Luis [Salazar], why don't you sign it? Go back to work
and we'll forget it." Salazar replied , "No, you fired me,
that's it ." Mason asked Salazar once again to change his
'a The form had no box for "failing to punch out " Nor did it have
any other box that might have labeled Salazar 's offense more accurately.
It did , however , have a space provided for an explanation of the offense;
Stephens made no entry in this space.
" In all areas of conflict I have determined to credit Mason 's testimo-
ny over that of Salazar . Salazar denied this , as well as having many other
conflicts with Mason 's testimony , including the claim by Mason that
there had been repeated warnings regarding his attendance and failure to
punch the timeclock in early February 1982. 1 have considered the de-
meanor of both men carefully, as well as the seeming probability , or lack
thereof, of the facts in their testimony . I have determined to credit
Mason in any area of conflict with Salazar . Among the factors I have
used , separate and in addition to demeanor , in determining to credit
Mason 's testimony over that of Salazar , is the fact that Salazar pleaded
guilty to and was convicted of having, on August 31, 1976, committed
second -degree robbery Additionally , on October 9, 1980 , Salazar pleaded
guilty and was convicted of the felony of illegally obtaining welfare ben-
efits . I am aware that Respondent had knowledge of at least one such
conviction , and that it aided Salazar , but it does not follow that I am free
to ignore such convictions in making a credibility assessment . Both con-
victions rest on dishonest conduct , rather than violence that might result
from causes having little to do with honesty or veracity See Scott Glass
Products, 261 NLRB 906 , 916 (1982), for a fuller discussion of the proper
use of such testimony in evaluating a witness ' credibility.
Having acknowledged that Salazar 's prior felony convictions appear to
me to fall within the scope of Fed R Evid 609(a ), and that they are,
therefore, both admissible and probative of impaired credibility on his
part , it should be emphasized that in assessing his credibility this was but
one of several factors considered , and that his demeanor was a separate
and distinct consideration
As an example of the "inherent probabilities" indicating that either
Mason 's or Salazar's testimony should be considered superior to the
others is my observation during trial that Salazar does, indeed , engage in
the very short of conduct attributed to him by Mason At one point
during his testimony Salazar became angered at the questions directed at
him and announced ". . . I am dust going to leave " (Tr 157) It proved
necessary for counsel for the General Counsel to speak to Salazar in pri-
vate in order to persuade him to stay and proceed with the trial . Thus, I
do not find it improbable that Mason encountered conduct such as re-
peated threats to quit from Salazar, and that , in the end, he simply
became fed up with them
mind and sign the warning and Salazar again refused.
Mason then left to have Salazar's final check made out.
After instructing a secretary to make out a check for
Salazar, Mason for the third time asked Salazar to sign
the letter. Salazar refused . Mason said he was making a
big mistake and that he should forget it and go back to
work. Mason told Salazar that his check would be ready
in about half an hour.
Salazar then left, but returned in about an hour and a
half. Apparently during this hour and a half Salazar
sought out and talked to both Marinakis and Matik, but
proved unsuccessful in having Mason 's insistence that the
warning notice be signed , overturned. Thus, Salazar, on
his return , told Mason he would now go ahead and sign
the warning notice and return to work. Mason responded
that he was now refusing to take him back.
2. Conclusions
As shown above , I have found that the Respondent
knew of Salazar 's activities on behalf of the Union well
in advance of when its officials were willing to admit. I
have also found that the warning system was, at the
least, "dusted off' and revitalized because of Salazar's
activities . I have also found that the Respondent, while
not mounting a campaign against unionism , which would
accurately be called either forceful or vitriolic, did,
nonetheless , commit some violations of Section 8(a)(1) of
the Act.
Accordingly, I believe that all the necessary ingredi-
ents exist for a finding that Salazar's discharge was moti-
vated by considerations that are illegal , i.e., retaliation
for having engaged in union activities . And, had the facts
here shown simply a naked discharge, or one artfully
cloaked with pretext, I might well have reached that
finding.
But I find I am unable to do so. This was not a simple
discharge of a union adherent at the first chance present-
ed. Nor was there much of a pretext credibly presented,
for I have not relied on LaFountain 's testimony regard-
ing either the prior existence or usage of a "disciplinary
system" that provided for "warnings."
Instead , I have discounted much of what both La-
Fountain and Salazar testified to, finding their credibility
to be far inferior to that of Mason's.
And, if Mason is credited, as he is by me, the entire
matter becomes far less sinister. True, there was both
knowledge of Salazar 's activities and violations of Sec-
tion 8 (a)(1). But my impression of the overall evidence in
this case was that Respondent, whether acting through
Mendoza, LaFountain , or Matik was not so much a con-
scious and deliberate lawbreaker as a bumbler . And, al-
though I recognize the very limited impact such a find-
ing should have on allegations of 8(a)(1) violations, I find
it of some moment when deciding what the Employer's
intent or motive was, as required in allegations of viola-
tions of Section 8(a)(3) such as this.
I am convinced that Mason's account of his repetitive
changes of heart with Salazar was essentially true. That
account received partial corroboration from Marinakis,
another credible witness . That being so, I find myself un-
willing to substitute my own judgment for that of
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mason's. Although one person's sense of when "enough
is enough" may legitimately differ from another's, and
while there are clearly suspicious circumstances sur-
rounding and leading up to Salazar's discharge , I do not
find that the facts here are sufficiently strong to belie
Mason's testimony. There are no rules that require an
employer to repeatedly reoffer a position to one who has
been discharged , regardless of the merits of a discharge
For if the employee repeatedly -refuses to acknowledge
valid disciplinary warnings , and still later refuses repeat-
ed offers of reemployment, all of which I find that Sala-
zar did , he must accept the danger that at some point the
employer may well change his mind , and close the door
permanently , as I find Mason did.
Accordingly, I find and conclude that it has not been
proven that Salazar's discharge was violative of the Act.
E The Meeting of March 30
1. Facts
The complaint alleges that on or about March 30,
1982, the Respondent, through LaFountain and Matik,
solicited employee grievances , promised to remedy them,
and promised increased benefits after a Board -conducted
election was completed.
At the trial, employee Ivan Ospina was led through
testimony that he attended meetings at the Respondent
during which the Union was discussed, that the first of
two or three such meetings occurred on March 30, 1982,
that he was notified of the meeting by a notice in the
lunchroom , and that the notice termed the meeting a
"safety" meeting. He recalled that he went to the meet-
ing around 9 o'clock in the morning and found that the
Respondent was represented by LaFountain and some-
one , named Ron, presumably the other owner, Ron
Matik. He stated that there were about 12 employees
present , all from the morning shift He recalled that La-
Fountain stated that coffee and donuts were available for"
those who wished them . Ospina stated that no such re-
freshments had been offered at any prior meetings, and
admitted that he could not recall what was said, though
he estimated the length of the meeting at an hour to an
hour and a half. He did later recall that LaFountain said
that he was going to talk about the Union and that those
employees who did not agree could leave No one left.
He recalled LaFountain speaking of the disadvantages of
the Union , and saying that, if the Union came in, it
would demand more from the Respondent than it could
afford, and that there would have to be a strike. LaFoun-
tain was quoted as having stated that if they had a strike
the Respondent would continue operations With
prompting, Ospina recalled that employee Robledo asked
LaFountain what the meeting had to do with safety since
the only item of discussion was the Union Ospina then
gave a somewhat confused account of LaFountain an-
swering that the employees were to tell the Respondent
what they needed to have in order to be able to work
better; the employees were instructed to write it down.
Through an interpreter , the employees responded to La-
Fountain and stated that they needed the forklift trucks
not to spill oil, that some employees needed more light
with which to do their work, while others needed work
gloves or ear protectors.
Ospina readily admitted to understanding practically
no English, but that LaFountain has spoken in English
and that LaFountain's words had been translated.
Employee Robledo testified that he was present at the
same meeting with Ospina, attended by personnel from
the morning shift on March 30, 1982. He recalled La-
Fountain being there and speaking through an interpreta-
tor named Montalvo Like Ospina, he recalled coffee and
donuts being made available, unlike any other meeting
conducted by the Company. He recalled LaFountain
speaking about the Union and, further, that he asked La-
Fountain why he was speaking about the Union in light
of the fact that the notice of the meeting had stated only
that it would deal with safety He said that LaFountain
told him that he could leave if he wished to do so. Rob-
ledo, unlike Ospina, stated that Ospina asked LaFountain
the same question But, like Ospina, he recalled LaFoun-
tain asking what it was they needed to do their work and
that the employees responded that they needed work
gloves and hearing protectors. Finally, unlike Ospina,
Robledo testified that Matik also spoke at this meeting;
according to Robledo, Matik said that there would be no
pay increase until after the election was over.
LaFountain readily admitted that such a meeting was
held, as did Matik. Indeed, LaFountain went further and
admitted that a second meeting was held for the second
shift and much of the same points were made to the em-
ployees at the time
LaFountain recalled that the meeting lasted about an
hour, that he told the employees through an interpreter,
Montalvo, that those who wanted to stay could do so
and that those who wanted to leave could also do so He
recalled that none of the approximately 10 employees
left. He acknowledged the essential accuracy of Roble-
do's testimony that at one point Robledo asked why they
were talking about the Union when this was supposed to
be a safety meeting According to LaFountain, he re-
sponded that they were going to talk about both items
LaFountain acknowledged employee problems relating
to such items as forklifts and grinders These were dis-
cussed and employee comments regarding safety prob-
lems were solicited. LaFountain told the employees simi-
lar meetings would be conducted in the future Though
LaFountain claimed such meetings had been conducted
in the past, he could not recall any specifics
Matik's testimony was not markedly different It
should be noted that he was not asked about, and there-
fore did not deny, that he told the employees that no
raise could be given until after the election
2 Conclusions
I conclude from the above that such meetings were, in
fact, unusual and had not previously involved employees
to the extent shown by the testimony. I am dubious
about the reliability of Ospina's testimony due to my im-
pression that he had a very poor understanding of what
was actually occurring, due perhaps to his language diffi-
culties, or perhaps, to a vague recollection
JOE'S PLASTICS
In light, however, of the partial corroboration supplied
by Robledo, and the fact that the major details of these
meetings were essentially uncontroverted by either. La-
Fountain or Matik, I find that they occurred essentially
as described by Ospina.
Accordingly, I find that the Respondent did indeed
grant the benefit, however minimal it may seem, of re-
freshments at a meeting of employees to discuss safety.
In fact, the meeting turned out to be primarily concerned
with the Union, and resulted in employees being solicited
to list their employment needs, some of which had to do
with increased safety Such matters constituted griev-
ances of the employees, and their solicitation and implied
promise of remedial action on the part of the Respond-
ent, which I also find to have occurred, was violative of
Section 8(a)(1) of the Act.
F Allegations Concerning Robledo
1 It is alleged that on or about April 13, 1982, Marina-
kis interrogated Robledo and threatened him with repris-
als for supporting the Union
Robledo's version was as follows- Around April 12,
1982, as he was leaving the plant at the end of this shift,
Marmakis asked him if he was going to be the Union's
observer in the election scheduled for April 15. Robledo
replied that he was prompting Marmakis to say that he
was making a big mistake and that he would probably
have a big problem if the Union did not win Robledo
nonetheless stated his intention to go ahead and support
the Union, which provoked another warning from Mar-
makis that it would prove to be a problem for him.
Marinakis' version is as follows According to Marina-
kis it was Robledo who started the conversation Rob-
ledo simply told him that he would be the Union's ob-
server at the upcoming election, since Salazar was no
longer employed there. Further, he recalled that Rob-
ledo volunteered that, if the Union lost the election, he
would probably resign Marinakis claimed that he cut the
conversation short, explaining to Robledo that he was
not allowed to discuss the matter with him.
2. It is further alleged that on or about April 15, 1982,
Marinakis asked Robledo if he was going to quit work-
ing for the Respondent, since the Union has lost the
Board-conducted election earlier that day.
Robledo's version was as follows. The NLRB's elec-
tion was conducted on a payday Between 3.30 and 4
p.m., after the voting was over and the Union had lost
the election, Robledo was on his way out of the Re-
spondent's facility and stopped by Marmakis' office to
ask him about his paycheck Marmakis asked him if he
wanted two checks. Robledo inquired as to why Marma-
kis would ask that question. Marinakis responded that,
since Robledo had previously told him that if the Union
did not come in he was going to look for another job, he
thought that Robledo might be quitting. Robledo stated
that Marmakis insisted on attempting to hand him two
checks thereafter. Robledo asked Marmakis if he was
being fired, and Marmakis replied negatively, saying only
that Robledo had told him that he would not return if
the Union did not succeed in securing representation
rights Finally, Robledo told Marmakis that he would
accept two checks only if he was being fired, but if he
221
was not being fired, Marinakis should simply give him
the check for the week he had worked and that he
would show up for work the following day At that,
Marmakis went to the office, got Robledo's check, and
gave it to him without any further statement.
Marmakis' version was as follows- Mannakis readily
admitted that Robledo came to him and told him before
the election that he was going to be the Union's observer
at the election. Marmakis also acknowledged that follow-
ing the election on April 15, 1982, as he was giving Rob-
ledo his check, he asked him if he wanted both checks,
and that he did, in fact, refer to their previous conversa-
tion (wherein Robledo had told him that he would quit if
the Union was not successful).
3 It is alleged that the Respondent issued written
warnings to Robledo on March 17 and May 5, 1982, be-
cause of his engagement in union or concerted protected
activities
Having previously dealt with the general subject
matter of the way in which the "warning system" was
instituted, I shall now detail the way in which it was ap-
plied to Robledo
According to Robledo it was not during March that
he received his first written warning, but sometime in
May 1982. As he recalled it, Marinakis simply presented
him with a piece of paper to sign that warned him for
having arrived late three times that same week He
signed it. He admitted that he had arrived late three
times, that week, though he claimed that he was late by
only a minute or two each time, that such tardiness had
previously been tolerated, and that he had never been
previously warned either in writing or verbally
Robledo testified that his second warning was received
sometime in June or July 1982 from Alfredo Cano,his
foreman According to Robledo, Cano checked a paper,
handed it to Robledo, and told him to sign it. On looking
at it, Robledo saw that it was a warning for having being
absent from work the day before Robledo protested
that, while he had been absent, he had a good excuse,
and that he had given notification 2 days before that he
was going to be absent. He explained that the reason he
did not come to work was that his car had broken down
and that he had nothing to get around in. Robledo and
Cano then went to Marmakis' office, where Marinakis
asked him why he could not get a ride into work. Rob-
ledo explained that he had not wanted to bother his
neighbors to bring him in late at night. Ultimately, Mar-
makis told him that he did not feel that he had a good
excuse. Robledo then signed the warning.
Marmakis' version- Marmakis acknowledged that he
issued a written warning to Robledo for having arrived
late for work He acknowledged that this was the first
warning that he had issued to any employee since some-
time in 1980 or 1981. He further acknowledged that
other employees arrived late for work sometimes Marm-
akis stated that the warning was given on the date as-
signed it by the complaint, rather than in May as Rob-
ledo had recalled it He also explained that the warning
had been given after Robledo was late for work four
times in one week, rather than the three times acknowl-
edged by Robledo. He explained that sometime before
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that time, on a weekend, he spoke to Robledo and urged
him to report on time, but that other times when he tried
to talk with Robledo , Robledo would just walk away
from him.
4. It is alleged that on or about April 23, 1982, Re-
spondent transferred Robledo from the day shift to the
night shift and assigned him more onerous duties
According to Robledo , he was notified by Marinakis
of a change in his shift about 2 to 3 weeks after the elec-
tion Robledo stated that he was told of the change in
shift on a Friday and advised to begin on the following
Monday, and that it was explained by Marinakis that he
had orders to make the change because Robledo had less
seniority than other forklift drivers . Robledo said that he
then protested that he had greater seniority than another
employee, whereupon Marmakis stated that he was
unsure and would check it. As a result Robledo was, in
fact , transferred to the night shift and given, for the next
several weeks, duties of feeding material into a grinder.
Although Robledo received a pay raise as a result of this
shift change it seems to be true that he did not like the
change.
Marinakis , on the other hand , testified that it was nec-
essary to transfer someone to the night shift because an
employee from that shift was being moved to the day
shift to take Salazar 's place following Salazar's termina-
tion . He further testified that a management meeting was
conducted and, as a result of the meeting , it was deter-
mined that Robledo 's experience best qualified him for
the tasks a worker would encounter at night Marinakis
claimed that , generally speaking, when transferring em-
ployees the Respondent attempted to observe seniority,
but that sometimes it proved impossible Marinakis testi-
fied that , in this case , as he normally does , he spoke to
Robledo before the transfer was effected. On this subject
Marmakis testified as follows.
He didn't really object . He didn ' t really agree.
He really didn 't say he didn't want to .
Q. What did you say to him on this occasion?
A I told him, "I need you on our third shift
right now We're having a few problems . Bear with
me." You know, "I need you."
Q. What did he say?
A. He didn ' t say too much . He really didn't
argue with me or anything . "Okay."
Q. Why was he the choice as opposed to some-
body else? ,
A. He is very knowledgeable in the plastics
Q. Did he have more knowledge than someone
else might have?
A. No. Let me explain this to you
You have your guys on the machines. They run
basic materials and stuff. The guys in the grinding
room might be-styrine [ph] over here, polyetho-
lene [ph] over here, key resin over here You know
what I mean? They don't really know the differ-
ence. When this material goes through the lines, it
goes in the machine they run. But this material goes
through the line, gets mixed with other materials. It
could be a problem of 10, maybe 12, maybe more,
thousands pounds. And Ricky [Robledo] being
there, he woud know the operation . And know the
material that's going to those machines. And we
need this Cano was good , but as far as knowing the
material itself, he's a better man for the job.
Q And was Ramon Figueroa a good man for
that job as well?
A. He was . He was a pretty good man, too.
Q But then he was transferred?
A. Yeah To the mechanics
Robledo recalled no such conversation with Marinakis,
but when asked if he never complained about being
transferred to the night shift, he could only point to a
conversation with Marinakis , LaFountain , and Ron
Matik some 4 to 6 weeks after being transferred to the
night shift . According to Robledo , he asked him why he
was changed over to the night shift , and why they did
not lay him off and give him his papers so that he could
collect unemployment He said that he no longer felt
needed by the Company and that he did not want to
work for them any longer
Although details are not known , it is clear that Roble-
do's employment with the Respondent ended shortly
thereafter for reasons having nothing to do with this
case. No claim has been advanced that Robledo's em-
ployment was unlawfully ended , or that he was con-
structively discharged.
5. Conclusions Regarding Allegations Concerning
Robledo
I am unpersuaded that the General Counsel has
proven any element of her case on the allegations having
to do with Robledo. In each instance where conflict be-
tween Robledo and the Respondent existed, it came
about as a result of differing recollections of events be-
tween Robledo and Marmakis In this case I make all
such resolutions in favor of Marmakis ' credibility and
against Robledo. Marinakis gave every appearance of at-
tempting to answer truthfully and straightforwardly,
even admitting a number of items that had an apparently
damaging effect He projected an impression of truthful-
ness as he testified.
On the other hand, Robledo's testimony was flawed in
an overall sense He was repeatedly vague about items
one would except him to remember It was repeatedly,
and quite apparently , necessary for counsel for the Gen-
eral Counsel to lead him on important points, despite my
admonitions to refrain therefrom
It seems clear that if Marmakis' testimony is credited
over Robledo's as it is, each of the instances of alleged
violation testified to by Robledo must fall I so find and
conclude
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act, I shall recommend that Respondent cease ad
desist therefrom and take certain affirmative action nec-
essary to effectuate the policies of the Act
JOE'S PLASTICS 223
CONCLUSIONS OF LAW
1. Respondent , Joe's Plastics, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the
Act by interrogating employees concerning their own or
other employees ' union activities , leanings, or sympa-
thies, by engaging in surveillance of such activities or by
creating the impression among its employees that it was
engaging in surveillance of such activities; by threatening
reprisals against employees for having engaged in union
or other protected concerted activities, by granting bene-
fits; and by soliciting grievances and impliedly promising
to remedy the same
4. Respondent has not violated the Act except as spe-
cifically found above.
[Recommended Order omitted from publication ]