Kolkka Tables & Finnish-American Saunas

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 844 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
John Kolkka, d/b/a Kolkka Tables and Finnish-
American Saunas, a Sole Proprietorship and
Carpenters Union Local 2236, and the Bay
Counties District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Cases 20–CA–27284, 20–
CA–27287, 20–CA–27302–2, 20–CA–27312, 20–
CA–27394, 20–CA–27398, 20–CA–27409, 20–
CA–27415, 20–CA–27419, 20–CA–27422, 20–
CA–27545, 20–CA–27570, 20–CA–27592, 20–
CA–27606, 20–CA–27702, 20–CA–27756–1
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On May 15, 1998, Administrative Law Judge James
M. Kennedy issued the attached decision. The Respon-
dent and the General Counsel each filed exceptions and
supporting briefs, the Charging Party filed a brief joining
in the General Counsel’s brief on exceptions, and the
Respondent filed a brief answering the General Coun-
sel’s exceptions.
The Board has considered the decision and the record in
light of the exceptions and briefs, and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2 only
to the extent consistent with this Decision and Order.
As discussed below, although we affirm the judge’s
decision in substantial part, we find merit in certain of
the General Counsel’s exceptions. We conclude, contrary
to the judge, that the Respondent threatened to discharge,
and unlawfully discharged 15 employees on May 13,
1996, because of their protected strike activity. In this
regard we overrule Kerrigan Iron Works, Inc., 108
NLRB 933 (1954), affd. sub nom. Shopmen’s Local 733
v. NLRB, 219 F.2d 874 (6th Cir. 1955), cert. denied 350
U.S. 835 (1955), and cases following it to the extent they
are incompatible with current case law. In addition, we
disagree with the judge and find that the Respondent
unlawfully suspended employee Efrain Ramos Tena on
August 23, 1996, due to his exercise of Section 7 rights.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance 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 affirming the judge’ finding that the Respondent did not unlaw-
fully discharge the four Barajas brothers, we rely on the Respondent’s
good-faith, reasonable perception of its legal obligations under the
Immigration Reform and Control Act of 1986 and the requirements of
the Social Security Administration. Accordingly, we find it unnecessary
to address the judge’s interpretation of the relevant legal obligations.
See sec. III,C,2 and D of the judge’s decision.
The General Counsel excepted to the judge’s failure to consider an
alleged 8(a)(1) threat involving employee Rodrigo Cuevas’ use of
union stickers in the workplace. We find it unnecessary to pass on this
allegation. Even if we were to find a violation and order a cease-and-
desist remedy, it would merely be cumulative of the 8(a)(1) violation
found by the judge concerning union stickers on Efrain Tena’s toolbox
and the judge’s recommended remedy for this violation.
I. BACKGROUND
The Respondent is a sole proprietorship engaged in the
design and production of metal furniture and saunas in
Redwood City, California. John Kolkka is the owner, and
he operates the business with Stephanie Kolkka, his wife.
John Butters is the manager of furniture production. The
Respondent employs 45 to 50 workers at the Redwood
City location, who staff a day shift and an evening shift.
As more fully detailed in the judge’s decision and be-
low, a dispute between the Respondent and its produc-
tion workers arose in mid-May 1996 regarding “piece
rates” paid to employees.3 In the wake of this dispute, 15
employees4 did not appear for work on May 13 and 14.
The judge found that because of this absence, which he
found to be protected strike activity, on May 15 the Re-
spondent unlawfully discharged 2 employees, unlawfully
suspended a third, Efrain Ramos Tena, and issued unlaw-
ful warnings to the remaining 12. No exceptions were
filed to the judge’s findings and we adopt them.
As a result of the “piece rate” dispute, the employees
contacted the Union in order to consider collective-
bargaining representation. The Union initiated an orga-
nizing campaign in late May and the Board conducted an
election on August 9. The Union won the election, and
was ultimately certified by the Board as the employees’
collective-bargaining representative in January 1997.
The judge found that during the organizing campaign,
the Respondent committed numerous unfair labor prac-
tices designed to induce and coerce the employees to
vote against the Union. The judge found that the Re-
spondent violated Section 8(a)(1) of the Act by: threaten-
ing to close or move its business if the employees chose
the Union; threatening to refuse to negotiate a collective-
bargaining agreement if the Union was chosen; offering
employment benefits to induce employees to abandon
their support of the Union; threatening employees with
unspecified retaliation if they selected the Union; solicit-
ing grievances and impliedly promising to remedy them
in order to undermine union support; and by threatening
employees with loss of benefits and wage reductions if
they voted in the Union. The judge also found that in
3 All dates are in 1996 unless otherwise noted.
4 We correct the judge’s finding that 14 employees were involved in
this incident.
335 NLRB No. 69
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 845
late August, after the Union won the election, the Re-
spondent violated Section 8(a)(1) by ordering employee
Tena to remove union stickers from his own toolbox. The
Respondent did not file exceptions to these findings and
we adopt them.5
We also affirm the judge’s findings that the Respon-
dent violated Section 8(a)(5) and (1) by unilaterally
changing certain working conditions following the elec-
tion, and by refusing in early 1997 to provide the Union
with requested information relevant to collective bargain-
ing. Although the Respondent excepted to the judge’s
findings, it relied solely on its then-pending court chal-
lenge to the Board’s Order requiring the Respondent to
bargain with the Union based on the Board’s certification
of the Union as the employees’ exclusive collective-
bargaining representative. The court, however, has since
enforced the Board’s bargaining order. NLRB v. Kolkka,
170 F.3d 937 (9th Cir. 1999), enfg. 323 NLRB 958
(1997). Accordingly, we find no merit in these excep-
tions.
The judge dismissed several other unfair labor practice
allegations, and the General Counsel filed exceptions to
some of the dismissals. For the reasons discussed below,
we find merit in these exceptions concerning two mat-
ters: the May 13 mass discharge of the 15 employees
who engaged in a “piece-rate” wage protest, and the Au-
gust 23 disciplinary suspension of employee Tena.
II. THE “PIECE-RATE” INCIDENT
A number of the Respondent’s production workers
were paid on a “piece-rate” basis, i.e., the Respondent
would pay a worker a specific “price” for production of a
furniture item. In many cases, the employees did not
know the exact prices of the items they produced, and the
Respondent traditionally was not forthcoming in making
the prices available. This led to the employees’ suspi-
cion that the prices the Respondent paid them for com-
pleted work were not consistent, and that the prices were
changed periodically without notice. The price issue had
been a point of friction between the employees and the
Respondent for at least 2 years prior to May 1996.
Friday, May 10, was a payday, and the price problem
came up again at the beginning of the evening shift. A
group of employees, thinking that their piece-rate pay-
checks were short, demanded to speak to John Kolkka
about it. Kolkka did not agree to talk to them, but he con-
ferred for 2-1/2 hours with Manager John Butters and a
supervisor about the matter. During this time the em-
ployees stood by their equipment without working and
waited for the conference to end. Ultimately, the supervi-

5 At the hearing the Respondent conceded the 8(a)(1) violations
committed during and after the organizing campaign.
sor offered to provide some information concerning
prices, but the employees decided it was insufficient.
They told the supervisor they were going home, and he
acceded. No production work was done that night.
Over the weekend, word of what had happened spread
to day-shift employees. On Monday, May 13, the day-shift
workers showed up at the Respondent’s facility at 8 a.m.,
the usual time for work. They did not go to work, how-
ever. They demanded to speak with John Kolkka, and
made clear that they would not begin work until a meeting
had been arranged. Kolkka had not planned to be at the
plant that day. After Butters called, Kolkka arrived at
about 10 a.m. By that time, the group of employees de-
manding to speak with him had grown to about 45; appar-
ently it included some off-duty, evening-shift workers.
The employees followed Kolkka to an area just outside
the plant office, insisting that he meet with them en
masse. John and Stephanie Kolkka, Butters, and em-
ployee Rigoberto Moreno, who was perceived as a leader
of the employees, conferred inside the office, while the
rest of the employees waited outside. After a time,
Stephanie Kolkka emerged and spoke to the group in an
angry tone. Employee Tena tape recorded what she said,
and the audio recording was transcribed and placed in
evidence at the hearing. The following is the relevant
portion of that transcript:

Stephanie Kolkka: Okay you have a choice. I will
talk to you one at a time, I’m not gonna to talk to
you like this, if you don’t want to do that, you can go
home and I’m closing down the shop. You under-
stand? You understand? I know you understand
George. . . . Okay, so, that is your choice. So, if you
want to talk in your little mob scene, I’m gonna to
close down the shop and I will do it. You want to
talk to me one at a time, I will do it. I expect the rest
of you to go back to work while I am talking to the
other people. If you’re not willing to do that, I will
close down the shop. So, what do you want to do?
(inaudible male voice, approximately 4–5 words).
Because you speak English, that’s why.

. . . .

[pause during which inaudible background discussion
occurs]
Stephanie Kolkka: Would you please repeat this
please? I will talk to everyone one at a time and I
expect other people to go back to work [pause dur-
ing which translation presumably occurs]. If they
are not willing to do that, then I am closing down the
shop [pause during which translation presumably
occurs] [followed by unintelligible voices speaking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
together, some Spanish, some English]. I will not be
brow-beaten like this, and you’re gonna lose your
jobs, you’re gonna lose your job over it, and I am
not fucking around.
[Partially intelligible discussion occurs].
John Kolkka: Okay, one at a time, because eve-
rybody’s gotta a little different situation here. You
guys. Some of you guys have a problem with your
paychecks. I know some you guys don’t have a
problem with your paychecks. The other guys are
just hanging around for the party. Okay.
Stephanie Kolkka: It’s no game and it is no party.
And I will close down the shop and you will lose
your jobs if you do not do what I tell you to do, and I
am not fucking around here. So, it’s up to you, one
at a time, or nothing. And I expect the rest of you to
go back to work while I am talking to the other peo-
ple. And I want to talk to you first.
[Person believed to be Efrain Ramos Tena asks
in Spanish if David [Palacios] can translate; a trans-
lation seems to begin but John Kolkka interrupts.]
John Kolkka: The guys that want to go, they
go. The guys that stay, stay. . . . One at a time or
nothing.
Efrain Ramos Tena: Nothing.

At that point, 15 employees left the plant, and about 30 de-
cided to go to work.
On Wednesday, May 15, the 15 employees returned to
the plant seeking to go to work. At that time, the Re-
spondent formally discharged Moreno and Guillermo
Cortez, another perceived employee leader. Tena was
suspended for 3 days, and the other 12 employees re-
ceived warnings before being permitted to return to
work. As indicated above, the judge properly found
these actions unlawful, and the Respondent has not filed
exceptions to his findings.
In addition to these unlawful warnings, discharges, and
suspension, the General Counsel alleges that Stephanie
Kolkka’s threatening statements on May 13 interfered
with the employees’ exercise of Section 7 rights, in vio-
lation of Section 8(a)(1). We agree, for the reasons that
follow.
The General Counsel further contends that by Stepha-
nie Kolkka’s statements, the Respondent effectively dis-
charged the 15 workers who subsequently left the prem-
ises. The General Counsel alleges that the discharges
were unlawful, and that accordingly, these employees
were entitled to backpay for the time they were not per-
mitted to work between May 13 and 15. The judge re-
jected this contention, finding that the employees who
left the plant, like their coworkers on Monday and the
previous Friday, had voluntarily withheld their labor.
Thus, in the judge’s view, the 15 were not discharged on
Monday; rather, they were continuing a strike off the
premises, which had begun earlier within the plant. Rely-
ing on the principle that an employer may require em-
ployees who concertedly refuse to work to conduct their
strike off the property, the judge interpreted the Kolkkas’
statements to the employees outside the office as simply
a lawful exercise of that right. He also indicated that, at
worst, these statements constituted permissible “tactical
threats” designed to get the employees back to work,
rather than a discharge.
The issue here, then, is the proper characterization of
the nature and effect of Stephanie Kolkka’s statements.
We reject the judge’s analysis in this regard. In agree-
ment with the General Counsel, we find that the 15 em-
ployees were not only unlawfully threatened by the
statements, but were also unlawfully discharged.
The Board recently summarized the applicable legal
principles in North American Dismantling Corp., 331
NLRB 1557 (2000):

The Board has held that the fact of discharge
does not depend on the use of formal words of fir-
ing. Hale Mfg. Co., 228 NLRB 10, 13 (1977), enfd.
570 F.2d 705 (8th Cir. 1978). It is sufficient if the
words or action of the employer “would logically
lead a prudent person to believe his [her] tenure has
been terminated.” NLRB v. Trumbull Asphalt Co.,
327 F.2d 841, 843 (8th Cir. 1964).

See also Flat Dog Productions, 331 NLRB 1571 (2000);
Dublin Town, Ltd., 282 NLRB 307, 308 (1986); and
Ridgeway Trucking Co., 243 NLRB 1048 (1979), enfd.
622 F.2d 1222 (5th Cir. 1980). Under this analysis, the
determination of whether there was a discharge is judged
from the perspective of the employees, and is based on
whether the employer’s statements or conduct “would
reasonably lead the employees to believe that they had
been discharged.” NLRB v. Hilton Mobile Homes, 387
F.2d 7, 9 (8th Cir. 1967). See Brunswick Hospital Center,
265 NLRB 803, 810 (1982)(“In determining whether or
not a striker has been discharged, the events must be
viewed through the striker’s eyes and not as the employer
would have viewed them”). Moreover, the employer will
be held responsible when its statements or conduct create
an uncertain situation for the affected employees:

If [the employer’s] . . . acts created a climate of ambi-
guity and confusion which reasonably caused strikers
to believe that they had been discharged or, at the very
least, that their employment status was questionable
because of their strike activity, the burden of the results
of that ambiguity must fall on the employer.

KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 847
North American Dismantling Corp., supra at fn. 4, quoting
from Brunswick Hospital Center, supra.
Here, Stephanie Kolkka’s statements to the striking
employees outside the plant office were not limited to
stating that the Respondent would not bargain with them
en masse, that it instead would deal with each of them
individually. Rather, she also stated that in the meantime
they should either get back to work or go home. Further,
she identified the consequences if the employees did not
follow her instructions. Thus, she referred to “closing
down the shop” four times, and twice emphatically stated
that the employees would lose their jobs if they did not
cooperate. Thus, for example, at the end of her speech,
she said: “. . . I will close down the shop and you will
lose your jobs if you do not do what I tell you to do, and
I am not fucking around here. So, it’s up to you, one at a
time or nothing.”
Given these statements, we find that it was reasonable
for the 15 employees who chose not to abandon their
concerted protest to believe that their choice meant they
were discharged for engaging in protected concerted ac-
tivity, i.e., for continuing their concerted protest and fail-
ing to “get back to work or go home.”6 At the very least,
it was reasonable for them to perceive their employment
status as questionable. John Kolkka, although speaking
in a more temperate manner, appeared to endorse his
wife’s remarks. Certainly he neither disavowed them, nor
clarified any confusion her remarks may have created.
Accordingly, we find that the 15 employees who left on
May 13 were discharged. By threatening to discharge
them, and by discharging them because of their protected
protest concerning piece-rate prices, the Respondent vio-
lated Section 8(a)(1).
In finding to the contrary, the judge relied in signifi-
cant part on an early line of cases where the Board char-
acterized discharge threats made to strikers as a lawful
management tactic in certain circumstances. The most
prominent of these cases is Kerrigan Iron Works, Inc.,
108 NLRB 933 (1954), affd. sub nom. Shopmen’s Local
733 v. NLRB, 219 F.2d 874 (6th Cir. 1955), cert. denied
350 U.S. 835 (1955). In Kerrigan, a divided Board

6 We reject our dissenting colleague’s finding that this was not a threat
of discharge for striking. Although they were on the plant premises at the
time, Stephanie Kolkka gave the employees only two choices: go back to
work or go home. Whatever their right to continue their concerted protest
on the premises, see Cambro Mfg. Co., 312 NLRB 634, 635–636 (1993),
the employees surely had a protected right to continue their protest out-
side the plant. Thus, contrary to our dissenting colleague, “going home”
was not the only alternative to what the employees were doing. In light of
the threats of plant closure and discharge, the employees reasonably
perceived the options that Stephanie Kolkka presented to them as a
Hobson’s choice of “either continuing to work or forgoing rights pro-
tected by the Act.” Intercon I, 333 NLRB 223 (2001), quoting Multimatic
Products, 288 NLRB 1279, 1348 (1988).
agreed that the employer’s threat to terminate strikers
who did not return to work by a certain date was “an
unlawful strike-breaking technique . . . designed to co-
erce the strikers to abandon the strike.” 108 NLRB at
935. Nevertheless, a Board majority concluded that the
unlawful threat did not amount to an unlawful discharge
of the strikers, because after the stated date the employer
reinstated strikers who wished to return to work. Id. As
later explained in Crookston Times Printing Co., 125
NLRB 304, 317 (1959), the Board in Kerrigan and other
cases essentially:

concluded that in strike situations employers go
through the motions and state that they are terminating
or discharging the strikers for the purpose of breaking
the strike or dissuading the employees from striking but
without meaning to refuse reinstatement when re-
quested by the employees. Under this type of tactical
discharge there is customarily found to be a violation of
Section 8(a)(1) of the Act since the employer has inter-
fered with the exercise by the employees of their rights
under Section 7; however, the determination of whether
or not there has been an actual discharge and a viola-
tion of Section 8(a)(3) is dependent upon the particular
facts and whether the employer refuses to reinstate the
strikers upon request and the reason therefor. [Citations
omitted.]

Thus, under the Kerrigan line of cases, in determining
whether an unlawful threat of discharge is a tactical maneu-
ver or an actual, unlawful discharge, the Board focused on
the employer’s intent behind the threat, manifested by its
subsequent conduct, particularly its willingness to reinstate
strikers who wished to return to work. Id.
In essence, the Kerrigan line of precedent holds that an
employer may unlawfully threaten discharge to bluff
strikers back to work, or to cow them from striking in the
first instance, as long as the employer later reinstates
strikers if the ruse fails. In our view, these cases improp-
erly allow an employer to use an admittedly unlawful
threat to intimidate employees in the exercise of their
right to strike. Such a result is clearly inimical to the ex-
ercise of Section 7 rights and therefore inconsistent with
the purposes and policies of the Act.7
Further, the Kerrigan analysis suffers from a basic
misconception: the belief that the meaning of the em-
ployer’s unlawful threat of discharge of strikers can be
further assessed when the employees attempt to return to
work following the strike. However, the Board has con-
7 As the dissenting Board Members in Kerrigan pointed out, later re-
instatement of tactically discharged employees “does not alter the ille-
gal character of the original discharge, but only eliminates the need for
a reinstatement order for them.” 108 NLRB at 938.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
sistently ruled over the last 20 years that discharged
strikers have no obligation to request reinstatement. As
stated in Naperville Ready Mix, 329 NLRB 174, 185
(1999), enfd. 242 F.3d 744 (7th Cir. 2001), citing Abili-
ties & Goodwill, 241 NLRB 27 (1979), enf. denied on
other grounds 612 F.2d 6 (1st Cir. 1979):

The fact that the employees were then on strike does
not preclude a finding of unlawful discharge, with enti-
tlement to backpay commencing at that point. When
strikers are unlawfully discharged, they are not required
to request reinstatement since, by discharging them, the
employer has signaled that he does not regard them as
strikers entitled to reinstatement upon request.

Thus, if striking employees believe, as a result of the em-
ployer’s threat of discharge, that they have been discharged,
they would quite likely not request reinstatement. And if
they in fact do not request reinstatement, there is no way to
meaningfully evaluate, under the “tactical discharge” analy-
sis, the employer’s subsequent failure to reinstate them.
Finally, the analytical framework of the Kerrigan
cases is also incompatible with the “reasonable em-
ployee” analysis applied by the Board in North American
Dismantling, supra, and the other cases cited above. The
former focuses on the employer’s intent, to ascertain
whether an unlawful discharge threat is sufficiently seri-
ous to constitute an unlawful discharge. The latter de-
termines whether an unlawful discharge has occurred
based on the striker’s reasonable understanding of the
employer’s conduct, even where the employer may not
have actually intended to discharge the employee. See
Dublin Town Ltd., 282 NLRB at 311. In our view, the
“reasonable employee” analysis, which focuses on what
employees would reasonably believe the employer meant
by its words and conduct, is more consistent with the
Act’s purpose of protecting employee Section 7 rights,
and is therefore the proper approach. Accordingly, to the
extent the Kerrigan “tactical discharge” line of cases still
survives,8 we overrule those cases.9

8 The Kerrigan line of cases has apparently fallen into disuse. It was
last cited in Cargill Poultry Co., 292 NLRB 738 fn.10 (1989), and there
simply to describe an employer’s legal position. It was last applied in
finding no discharge in Highland Plastics, Inc., 256 NLRB 146, 157
(1981). It is thus apparent that over the past two decades, the Kerrigan
analysis has been effectively superceded by the “reasonable employee”
rationale and the doctrine set forth in Abilities and Goodwill.
9 Our dissenting colleague suggests that our decision to overrule the
Kerrigan cases is “injudicious.” However, as we have explained above,
this line of cases is inconsistent with the Act’s policies and purposes;
incompatible with later, better-reasoned precedent; and has fallen into
disuse. Nevertheless, the judge relied on it as if it were sound case law.
In these circumstances, it is entirely appropriate that we overrule these
cases in the interest of consistency and coherence of Board precedent.
Even were we to apply the Kerrigan precedent, how-
ever, we would reach the same result in this case. When
the 15 strikers attempted to return to work on May 15,
the Respondent formally discharged 2 of them, sus-
pended another for 3 days, and issued disciplinary warn-
ings to the remaining 12 before reinstating them. We
agree with the judge that all of these actions violated the
Act. Thus, the Respondent’s subsequent conduct did not
consist simply of reinstating those who wished to return;
rather, the Respondent compounded its discharge threats
with these additional unfair labor practices against the
strikers. Further, the judge’s findings indicate that the
Respondent’s actual perception was that the strikers had
abandoned their jobs on May 13, and that it was a matter
of the Respondent’s choice on May 15 whether to reem-
ploy them or not. This does not suggest that the May 13
discharge threats were a tactical measure. Rather, it indi-
cates that the Respondent in fact considered the strikers
terminated when they walked out.
III. TENA’S AUGUST SUSPENSION
During the morning of August 23, 2 weeks after the
Board election, Production Manager Butters was in em-
ployee Tena’s work area. He noticed several union stick-
ers on the toolbox Tena used. Butters mistakenly be-
lieved that the toolbox was company property; in fact, it
belonged to Tena. Butters began removing the stickers
himself, and then he ordered Tena to remove the rest.10
Tena refused, insisting that the toolbox was his personal
property. Butters directed him three more times to re-
move the stickers, and Tena refused each time. Reacting
to what he perceived as Tena’s excessive hostility,11 But-
ters told him he was suspended and to go home. Tena
refused to leave. Butters called the police, who escorted
Tena from the property. Tena’s suspension for insubor-
dination was for the remainder of that day. According to
Butters, the entire incident, including Tena’s departure,
occurred over a period of about 15 minutes.
As mentioned in the “Background” section above, the
judge found that Butters’ demand that Tena remove the
union stickers from his personal toolbox violated Section
8(a)(1). Nevertheless, the judge found that Butters’ sub-
sequent suspension of Tena for refusing to comply with
his unlawful order to remove the stickers did not violate
Section 8(a)(3). The judge found that Tena had re-
10 Butters’ own August 23 memorandum to Tena’s personnel file, in
evidence, states that Butters first removed some stickers himself.
11 The judge found that Tena “hotly” and “defiant[ly]” refused Butters’
orders to remove the stickers, and that Butters deemed Tena’s response to
be excessively hostile. There are no exceptions to these findings and we
therefore adopt them. However, as discussed infra, there is no direct
evidence in the record that Tena’s response included any threats, profan-
ity, or other remarks demeaning Butters as a supervisor.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 849
sponded in a defiant way by repeatedly refusing to com-
ply with Butters’ order to remove the stickers; that refus-
ing to comply with a direct order as he did was insubor-
dinate; that Tena also refused to leave the plant when
directed to do so by Butters; and that Tena’s insubordina-
tion outweighed Butters’ interference with Tena’s Sec-
tion 7 rights. We reverse.
As an initial matter, we find that Tena’s refusal to
comply with Butters’ unlawful order to remove the stick-
ers did not constitute “insubordination” justifying disci-
pline. As stated in London Memorial Hospital, 238
NLRB 704, 709 (1978):

An employer is not free to evade liability through the
device of utilizing a rule prohibiting activity protected
by Section 7 of the Act and by then basing its discipline
on the fact that the employee has violated the rule,
thereby being insubordinate . . . .

See also Simplex Wire & Cable Co., 313 NLRB 1311, 1315
(1994); Cooper Tire and Rubber Co., 299 NLRB 942, 953
(1990) (refusal to comply with unlawful rule or order pro-
hibiting activity protected by Section 7 does not constitute
insubordination justifying discipline).12
Here, as indicated above, the judge found that Butters’
order to remove the stickers interfered with Tena’s Sec-
tion 7 rights, in violation of Section 8(a)(1) of the Act.
The Respondent has not excepted to this finding and we
adopt it. Further, we perceive nothing in the manner of
Tena’s refusal to comply with Butters’ unlawful order
that would constitute insubordination. Contrary to the
judge, we do not find it significant that Tena repeatedly
refused to comply with Butters’ unlawful order each time
Butters repeated that order. A refusal to comply once
with an unlawful order to cease engaging in Section 7
activity is not transformed into insubordination simply
because the refusal is repeated each time the unlawful
order is reiterated. Finally, while Tena’s successive re-
fusals put him in conflict with a supervisor, there is no
direct evidence in the record that Tena made any threat-
ening comments or gestures, directed any profanity at
Butters, or made any other remarks demeaning Butters as
a supervisor.13 Accordingly, we find that Butters’ sus-

12 Grand Rapids Die Casting, 279 NLRB 662, 667 (1986), cited by
the Respondent, is distinguishable. In that case, the employer simply
ordered the union steward to return to work. Although the steward was
engaged in processing a grievance at the time, the judge found the
evidence insufficient to establish that the steward was not really needed
back on the job or that the order was given to provoke his refusal. Id. at
fn. 22. Under these circumstances, the judge found that the steward’s
refusal to return to work was insubordinate, and the Board adopted the
judge’s finding.

13 Cf. Felix Industries, Inc. v. NLRB, 251 F.3d 1051 (D.C. Cir.
2001), remanding 331 NLRB 144 (2000) (court remanded for Board to
pension of Tena for refusing to remove the stickers was
unlawful.
Moreover, even assuming arguendo, as the judge found,
that the manner of Tena’s refusal to comply with Butters’
unlawful order did constitute insubordination, we find that
Tena did not thereby forfeit the protection of the Act. In
evaluating Tena’s behavior, the judge failed to accord suf-
ficient weight to the Respondent’s unlawful conduct.
When an employee’s purported insubordination relates to
his exercise of protected rights and is provoked by the
employer’s unfair labor practices, the employee’s conduct
must be evaluated by comparing “the seriousness of the
employer’s unlawful conduct with the extent of the em-
ployee’s reaction.” Caterpillar, Inc., 322 NLRB 674, 678
(1996), decision vacated pursuant to a settlement by un-
published order dated March 19, 1998.14 “‘The more ex-
treme an employer’s unlawful provocation the greater
would be the employee’s justified sense of indignation and
the more likely its excessive expression.’” Caterpillar,
322 NLRB at 678, quoting NLRB v. M. & B. Headwear
Co., 349 F.2d 170, 174 (4th Cir. 1965).
Here, we find that Tena’s refusal to comply with But-
ters’ order, however it was perceived by Butters, was
entirely understandable. As discussed above, the imme-
diate provocation for Tena’s response was Butters’ abuse
of his personal property by removing stickers from his
toolbox and Butters’ unlawful order directing him to re-
move the remaining stickers. Such direct interference
with an employee’s fundamental Section 7 rights is a
serious violation of the Act. See, e.g., Escanaba Paper
Co., 314 NLRB 732 (1994), enfd. 73 F.3d 74 (6th Cir.
1996). Further, it is also, in our view, highly likely to
provoke a hostile or defiant response. The toolbox was
Tena’s personal property, after all, and he had a legally
protected right to put union stickers on it. While Butters
believed—albeit mistakenly and despite Tena’s protesta-
tions—that the toolbox was company property, this does
not minimize the impact his conduct would reasonably
tend to have on an employee.
Moreover, Respondent’s earlier unlawful conduct also
cannot be ignored in evaluating Tena’s response. Thus,
as discussed above, on May 13, Tena and 14 of his co-
workers were unlawfully discharged for engaging in a
protected protest over their employment conditions.
When Tena tried to return to work with the others on
May 15, the Respondent unlawfully gave him a 2-day
suspension before accepting him back. As outlined
above, from mid-May until the August 9 election, the

further consider whether terminated employee lost protection of the Act
by denouncing supervisor in obscene, personally denigrating, and in-
subordinate terms).
14 See Caterpillar, Inc., 332 NLRB 1116 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
Respondent also committed numerous other unfair labor
practices designed both to restrain Tena and the other
employees from exercising their rights and to coerce
them to vote against the Union. In this context, it is rea-
sonable to conclude, and we do, that Tena’s refusal to
comply with Butters’ unlawful order was provoked by
these earlier unfair labor practices as well as by the
unlawful order itself.
In sum, we find that Tena’s refusal to comply with
Butter’s order, even assuming that refusal was insubordi-
nate, did not deprive Tena of the protection of the Act.
And we so find regardless of whether Tena’s refusal is
balanced solely against Butters’ conduct on August 23 or
against both that conduct and the Respondent’s earlier
unfair labor practices.
As indicated above, in finding no violation, the judge
also considered Tena’s refusal to comply with Butters’
direction to leave the plant following his suspension.
However, Tena’s refusal to leave the plant was clearly
provoked by the Respondent’s unlawful order to remove
the stickers and his unlawful suspension.15 Contrary to
the judge, we therefore find that Tena’s refusal to leave
the plant also did not deprive him of the Act’s protection.
See Cone Mills Corp., 298 NLRB 661, 667 (1990).
For all the foregoing reasons, we conclude that Tena’s
suspension violated Section 8(a)(1) of the Act. In light
of this conclusion, we find it unnecessary to address the
General Counsel’s allegation that the suspension also
violated Section 8(a)(3), since a finding of that additional
violation would not materially affect the remedy. See,
e.g., NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964);
Webco Industries, 327 NLRB 172 (1998), enfd. 217 F.3d
1306 (10th Cir. 2000); Durham Transportation, 317
NLRB 785, 786–787 (1995).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set out in full below, and orders that the
Respondent, John Kolkka, d/b/a Kolkka Tables and Fin-
nish-American Saunas, a sole proprietorship, Redwood
City, California, his agents, successors, and assigns, shall
1. Cease and desist from
(a) Warning, suspending, discharging, or otherwise dis-
ciplining employees who engage in concerted protected
activity for their mutual aid and protection, such as par-
ticipating in a lawful strike to protest working conditions.

15 As discussed above, it is reasonable to conclude that Tena’s re-
fusal to leave was also provoked by Respondent’s earlier unlawful
conduct.
(b) Threatening that employees will lose their jobs be-
cause of their participation in such concerted protected
activity.
(c) Threatening to close or move the business in the
event the employees select the Union as their collective-
bargaining representative.
(d) Threatening to refuse to negotiate a contract with
the Union in the event it became the employees’ Section
9(a) representative, thereby telling employees that having
a collective-bargaining agent is a futile act.
(e) Offering employees promotions and/or raises to in-
duce them to abandon their support for the Union and to
induce them to persuade employees to vote against union
representation.
(f) Threatening employees with unspecified reprisals if
they select the Union as their representative.
(g) Soliciting grievances and thereby impliedly prom-
ising to correct them in order to undermine the employ-
ees’ support for the Union.
(h) Telling employees that they would lose some of
their current benefits or suffer wage reductions if the
Union became their representative.
(i) Ordering employees to remove union stickers from
their personal property such as privately owned tool-
boxes.
(j) Unilaterally, and without notice to the Union and
without giving it the opportunity to bargain, changing
significant working conditions, such as the release time
of paychecks or other mandatory bargaining subjects.
(k) Refusing to provide to the Union, after the Union
makes a proper request, information relevant and neces-
sary to the Union’s performance of its duties as the col-
lective-bargaining representative of its employees, such
as: plans the Respondent may have regarding subcon-
tracting work; a copy of any company policy handbook;
a list of current bargaining unit employees, including
their wage rates, job classifications, dates of hire, and
benefits; and company policies regarding job descrip-
tions, terminations, layoffs, promotions, vacations, sick
leave, scheduled pay increases for 1997, and merit or
bonus pay plans.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Rigoberto Moreno full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 851
(b) Make whole Rigoberto Moreno, Guillermo Cortez,
Rodrigo Cuevas, Raul Alaniz, Roberto Barajas, Sergio
Barajas, Carlos Bracamontes, Jose Chavez, Jesus Cortez,
Jorge Garcia, Jorge Rocabino, Mario Torres Sandoval,
Jose L. Tena, Efrain Ramos Tena, and Luis Vega for any
loss of earnings and other benefits suffered as a result of
their unlawful discharges on May 13, 1996, in the man-
ner set forth in the remedy section of the decision.
(c) Make Efrain Ramos Tena whole for any loss of
earnings and other benefits suffered as a result of his
discriminatory suspensions of May 15–17 and August
23, 1996, in the manner set forth in the remedy section of
the decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to: the unlawful discharges of
Rigoberto Moreno and Guillermo Cortez; the unlawful
discharges of, and the unlawful warnings given to, Rod-
rigo Cuevas, Raul Alaniz, Roberto Barajas, Sergio Bara-
jas, Carlos Bracamontes, Jose Chavez, Jesus Cortez,
Jorge Garcia, Jorge Rocabino, Mario Torres Sandoval,
Jose L. Tena, and Luis Vega; and the unlawful discharge
and unlawful suspensions of Efrain Ramos Tena; and
within 3 days thereafter notify the employees in writing
that this has been done and that the discharges, suspen-
sions, and/or warnings will not be used against them in
any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records necessary to ana-
lyze the amount of payment due under the terms of this
Order.
(f) Immediately provide the Union with plans the Re-
spondent may have regarding subcontracting work; a
copy of any company policy handbook; a list of current
bargaining unit employees, including their wage rates,
job classifications, dates of hire, and benefits; and com-
pany policies regarding job descriptions, terminations,
layoffs, promotions, vacations, sick leave, scheduled pay
increases for 1997, and merit or bonus pay plans.
(g) Immediately rescind its practice of releasing pay-
checks at 4 p.m. on paydays and return to its previous
practice of releasing them at 2:30 p.m.
(h) Within 14 days after service by the Region, post at
its office in Redwood City, California, copies of the at-
tached notice marked “Appendix.”16 Copies of the notice,

16 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
in English, Spanish or any other foreign language
deemed appropriate by the Regional Director for Region
20, on forms provided by the Regional Director, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by Respondent at any time since
May 13, 1996.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps Respondent has taken to comply.

CHAIRMAN HURTGEN, dissenting in part.
I agree that the employees engaged in a strike on May
13.1 My colleagues find that Respondent unlawfully
threatened to discharge them for striking, and that the
threat was tantamount to an unlawful discharge. I dis-
agree on both counts.
First, the threat was not a threat to discharge them for
striking. The threat was to discharge them if they con-
tinued their conduct of “sitting in” on premises in order
to force a group meeting with Respondent. As discussed
above in footnote 1, they had no statutory right to remain
on the premises. And, although they had a Section 7
right to seek a group meeting, Respondent had no obliga-
tion to comply with the request.2 The employees none-
theless remained on the premises in order to force com-
pliance with their demand. Respondent’s threat to termi-
nate the employees if they persisted in their conduct was
thus not unlawful.
My colleagues note that the Respondent gave the em-
ployees the alternative of “going home.” From this, my
colleagues infer that Respondent took away the lawful
alternative of protesting outside the plant. In my view,
this is quite a stretch. “Going home” was the alternative
to what the employees were doing, i.e., physically occu-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 However, the strikers did not have a right to remain on Respon-
dent’s property. Thus, if Respondent had simply ordered them to leave,
that order would have been lawful.
2 The Union was not yet the representative, and thus there was no
obligation to deal collectively with the employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
pying the plant and performing no work. There is not the
slightest suggestion that a protest outside the plant would
be punished with discharge.
Further, even assuming arguendo that Respondent
threatened to discharge the employees for striking, and
further assuming arguendo that the threat was unlawful
under Section 8(a)(1), an unlawful threat is not the same
as an unlawful discharge. Nearly 50 years of Board and
court law support my view.3 My colleagues would over-
rule this body of law. I would not do so.
In the first place, no party seeks to overrule this body
of law, and thus the issue has not been litigated or
briefed. It is injudicious to overrule precedent and ad-
versely affect a party in these circumstances.
Second, there is no empirical showing that current law
has led to instability or injustice. Absent such a showing,
there is no warrant for such a change by an administra-
tive agency.
Third, the current law is not unjust. In the face of such
a threat, the employees can continue their strike. If the
strike is at least partially in protest of the threat, the strik-
ers are unfair labor practice strikers and cannot be re-
placed. Further, if the threat becomes a reality, i.e., if
they are discharged, they can file a charge. Finally, they
can also cease their strike, and promptly file a charge and
challenge the threat.
The instant case disproves the proposition that a threat
to discharge is a discharge. Respondent threatened em-
ployees with discharge but Respondent did not say that
they were discharged, and (with two exceptions), they
were not in fact discharged.4 Accordingly, I would not
convert a 8(a)(1) threat into a discharge. To do so is con-
trary to law, logic, and common sense.
Concededly, there are cases where employer conduct
reasonably leads employees to believe that they have
been discharged. In such circumstances, I would find the
discharge. Thus, in Flat Dog Productions, 331 NLRB
1571 (2000), the employer told employees that they were
terminated for not ending their strike, and the employer
later referred to these strikers as former employees. I
agreed that there was a discharge. By contrast, I dis-
sented in North American Dismantling, 331 NLRB 1557
(2000). In that case, the employer gave the employees
the option of working for him at a rate below that which
they sought or seeking other employment. The employ-
ees then voluntarily left the premises. In my view, they
were not discharged.
In the instant case, the Respondent threatened to dis-
charge the employees if they continued to remain on the

3 Kerrigan Iron Works, Inc., 108 NLRB 933 (1954), affd. sub nom.
Shopmen’s Local. 733 v. NLRB, 219 F.2d 874 (6th Cir. 1955).
4 I agree that the actual discharges were unlawful.
premises in order to force a meeting with Respondent.
The employees promptly left the premises, and thus the
condition precedent for discharge did not occur. Accord-
ingly, there was no reason for the employees to believe
that they had been discharged.
My colleagues say that an employee who believes that
he has been discharged would not likely seek reinstate-
ment. The speculation is unwarranted. Indeed, in the
instant case, the employees believed that they were dis-
charged (according to my colleagues) and yet they
sought to come back to work.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT warn, suspend, discharge, or other-
wise discipline employees who engage in concerted pro-
tected activity for their mutual aid and protection, such as
participating in a lawful strike to protest working condi-
tions.
WE WILL NOT threaten that employees will lose their
jobs because of their participation in such concerted pro-
tected activity.
WE WILL NOT threaten to close or move the business
because you selected a union as your collective-
bargaining representative.
WE WILL NOT threaten to refuse to negotiate a con-
tract with Carpenters Union Local 2236, and the Bay
Counties District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL–CIO,
which is now your exclusive collective-bargaining repre-
sentative, and WE WILL NOT tell employees that hav-
ing a collective-bargaining agent is a futile act.
WE WILL NOT offer employees promotions and/or
raises to induce them to abandon their support for the Un-
ion.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 853
WE WILL NOT threaten employees with unspecified
reprisals because they selected the Union as their
representative.
WE WILL NOT solicit grievances from our employees
and imply that we will correct them in order to under-
mine your support for the Union.
WE WILL NOT tell employees that they will lose
some of their current benefits or suffer wage reductions
because they selected the Union as their representative.
WE WILL NOT order employees to remove union
stickers from their personal property such as privately
owned toolboxes.
WE WILL NOT, without giving the Union the oppor-
tunity to bargain, change significant working conditions,
such as the release time of employees’ paychecks, or any
other mandatory bargaining subjects.
WE WILL NOT refuse to provide to the Union, when
the Union makes a proper request, information relevant
or necessary to the Union’s performance of its duties as
your collective-bargaining representative, such as plans
we may have regarding the subcontracting of work; cop-
ies of any company policy handbook; a list of current
bargaining unit employees, including their wage rates,
job classifications, dates of hire, and benefits; company
policies regarding job descriptions, terminations, layoffs,
promotions, vacations, sick leave, scheduled pay in-
creases for 1997, and merit or bonus pay plans.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Rigoberto Moreno full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make whole Rigoberto Moreno, Guillermo
Cortez, Rodrigo Cuevas, Raul Alaniz, Roberto Barajas,
Sergio Barajas, Carlos Bracamontes, Jose Chavez, Jesus
Cortez, Jorge Garcia, Jorge Rocabino, Mario Torres
Sandoval, Jose L. Tena, Efrain Ramos Tena, Luis Vega
for any loss of earnings and other benefits resulting from
their discharges, plus interest.
WE WILL make Efrain Ramos Tena whole for any
loss of earnings and other benefits resulting from his
unlawful suspensions of May 15-17 and August 23,
1996, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Rigoberto Moreno and Gui-
llermo Cortez; to the unlawful discharges of, and the
unlawful warnings given to, Rodrigo Cuevas, Raul
Alaniz, Roberto Barajas, Sergio Barajas, Carlos Braca-
montes, Jose Chavez, Jesus Cortez, Jorge Garcia, Jorge
Rocabino, Mario Torres Sandoval, Jose L. Tena, and
Luis Vega; and to the unlawful discharge and unlawful
suspensions of Efrain Ramos Tena and WE WILL,
within 3 days thereafter notify each of them in writing
that this has been done and that the discharges, suspen-
sions, and/or warnings will not be used against them in
any way.
WE WILL immediately provide the Union with the
material it asked for on January 3 and February 27, 1997,
as it is relevant to the Union’s ability to act as your col-
lective-bargaining representative.
WE WILL immediately rescind our practice of releas-
ing paychecks at 4 p.m. on paydays and return to our
previous practice of releasing them at 2:30 p.m., unless
the Union has agreed to such a change.
JOHN KOLKKA, D/B/A KOLKKA TABLES
AND FINNISH-AMERICAN SAUNAS, A
SOLE PROPRIETORSHIP

Amanda Alvarado Ford and Shelley Brenner for the General
Counsel.
Mark R. Thierman (with Donald G. Ousterhout on brief), of
San Francisco, California, for the Respondent
Paul Supton Van Buurg (Weinberg, Roger & Rosenfeld), of
Oakland, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried in San Francisco, California, on 18 trial days
beginning April 1, 1997, and ending July 1, 1997. It is based
on a second amended consolidated complaint issued on
March 17, 1997, by the Regional Director for Region 20 of the
National Labor Relations Board. During the course of the hear-
ing, another complaint was consolidated with it (Case 20–CA–
27756–1). All of the charges were filed by Carpenters Union
Local 2236, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO. The complaints allege that Respondent,
John Kolkka, d/b/a Kolkka Tables and Finnish-American Sau-
nas has committed a broad range of violations of Sections
8(a)(1), (3), and (5) of the National Labor Relations Act.1
Issues
For organizational purposes the allegations may be placed in
four sequential patterns. In the first, beginning approximately

1 The following paragraphs of the second amended consolidated
complaint were withdrawn during the course of the hearing: 8(b),
21(b), 25(a), 25(f), 25(g), 25(h), 25(l), 25(m), and 25(n). By a footnote
in its brief, the General Counsel has asked for permission to withdraw
paragraphs 8(c), 12(d), 12(e), 12(I), 14(g), 14(i), 15(a), 18(a), 18(b),
and 20(a). That request is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
May 10, 1996,2 all of Respondent’s welders and some painters
engaged in a 2-day walkout to protest what they perceived to be
unfair pay calculation procedures. The complaint asserts that
Respondent’s treatment of these individuals violated Section
8(a)(1). The second stage began when the employees sought
representation by the Charging Party starting about May 15 and
lasting through January 1997. The third, somewhat overlap-
ping the second, is the allegedly unlawful discharge of four of
the Barajas brothers, Francisco, Moises, Roberto, and Sergio on
December 30. The complaint asserts that these individuals
were discharged because of their union activities; Respondent
contends that it had discovered that they did not possess correct
social security numbers and were likely to be undocumented
aliens, not entitled to employment in the United States. Fur-
thermore, it asserts that these individuals were not discharged
initially, but were given an opportunity to correct their paper-
work but never did so. They were separated when they did not
present corrected paperwork. The fourth concerns the treat-
ment of Moises Estrada in April and May 1997, and was added
during the hearing. For organizational purposes it belongs with
stage two.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally and to file briefs. The General Counsel
and Respondent have filed briefs which have been carefully
considered. The Charging Party has adopted the brief of the
General Counsel. Based upon the entire record of the case, as
well as my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that at all material times it has been the
sole proprietorship of John Kolkka and is engaged in the manu-
facture of metal furniture and saunas at its plant in Redwood
City, California. It further admits that during calendar year
1995, in the conduct of its business operations it sold and
shipped goods valued in excess of $50,000 directly to custom-
ers located outside California. It therefore admits that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Charging Party is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent John Kolkka is the sole proprietor of this business.
He, together with his wife, Stephanie Kolkka, has operated it for
several years. Although the business does manufacture saunas,
the portion of the business with which this case is principally
concerned is furniture manufacturing. The furniture is made
entirely of metal and the individuals fabricating the pieces must
utilize metal bending and welding skills. After the furniture
piece is built, it must be polished or “grinded” (sic) and then

2 Unless otherwise indicated all dates are 1996.
painted (finished). The actual fabrication of furniture occurs in
Respondent’s plant located on the corner of Kaynyne Street and
Bay Street in Redwood City. The offices are in that building as
well. The finishing or paint shop is located in a separate building
some distance to the rear of the fabrication shop.
John Kolkka regards himself principally as a furniture de-
signer and in recent years, has delegated plant operations to a
manager. The current manager is John Butters, who was hired
during the summer of 1995, approximately 8 months before the
incidents involved here began. In addition there are several
foremen (supervisors) of various departments and shifts. Hec-
tor Pedraza has been the day-shift welding supervisor since
September 1995 and had been in charge of the grinders even
before that. The night-shift welding supervisor was Fernando
Flores; the paint shop supervisor was Jessie Souza.
The welding bays are located roughly in the center of the
main plant. John Kolkka’s office is located only a few feet
away from that area. As the Company’s principal designer, he
often utilizes the welding machines to fabricate models, to
work on prototypes or oversee a welder working on a piece
which he has designed. At the opposite end of the building are
the business offices. There are three or four managers/clericals
located there, including Stephanie Kolkka, John’s wife, and
Alicia Williamson, Stephanie’s sister. Although both are ad-
mitted to be supervisors and agents for Respondent, their duties
are somewhat undefined. Stephanie Kolkka acts as an execu-
tive and Williamson seems to serve as John Kolkka’s assistant.3
Also in that location are the bookkeeper, Sherry Jones, who has
a separate office, and some other office personnel.
Respondent employs about 45–50 individuals in its factory.
During the days it has a full complement of welders, grinders,
and finishers. In the evenings, it has a smaller number of weld-
ers, one or two grinders and no finishers. According to Butters,
Respondent tries to operate primarily on a “production basis,”
meaning that each of the workers is to make parts and fabricate
standard pieces of furniture, tables, and beds. It is not uncom-
mon, however, to receive a “custom” order. Custom orders are
usually deviations from a existing design, meaning the length
or height needs to be adjusted, but not the general style. John
Kolkka is usually involved with the special changes and may
provide a handwritten design to the fabricator, together with the
appropriate measurements. He also provides work on proto-
types, if he chooses to assign that work to a welder instead of
himself.
Respondent has traditionally paid its welders on a “piece-
rate” basis, meaning that each standardized type of furniture
which is fabricated has a specific “price” to be paid the work-
men. Until 1997, the finishers were also paid on a piece-rate
basis; they are now hourly. Grinders, however, have always
been paid on a hourly basis. Furthermore, there were often
times when the welders and finishers received payment on a
hourly rate as well. One of the difficulties with the piece-rate
was that the worker did not always know what the “price” was
and Respondent was generally not very forthcoming in telling
the individual what the price was either. Respondent utilizes a
3 She was mistakenly described by the Union in its election petition
as a “plant clerical.”
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 855
three slip work order form to keep track of each item in produc-
tion. Thus, when given an assignment, the employee would
receive one copy of the slip and would fill it out to report his
completion of the task, but would not always know what he
was going to receive for that work. Employees came to be-
lieve, with some rationality, that from time to time Respondent
changed the prices without informing them. I am not certain
that the proof actually supports their conclusion, but clearly
they had come to believe there was a problem in that regard.
Some of that belief may have been engendered by the language
barrier, some by Respondent’s reticence on the subject for valid
business reasons, some of it based upon employee suspicion.
The language problem arises because many of Respondent’s
employees speak only Spanish while others are only partially
fluent in English.
B. May 10-15; the Walkout and Response
According to the General Counsel’s evidence, there were
four individuals who raised concerns about the “price” on a
frequent basis. These were Guillermo Cortez (Cortes in the
complaint),4 Rigoberto Moreno, Efrain Ramos Tena, and Jose
Zepeda. Cortez and Zepeda were employees of the paint de-
partment while Rigoberto Moreno and Ramos Tena were weld-
ers. Without attempting to detail the evidence, I think it is fair
to say that these four, as well as others, did indeed raise ques-
tions about the consistency of the prices being paid. Moreover,
those questions had arisen fairly frequently since 1994. It was
during a meeting in 1994 where Rigoberto Moreno first asked
for a price list from John Kolkka. Subsequently, in 1995 Cor-
tez also asked for a price list during meetings. Additionally,
Zepeda and several other employees asked for such a list from
S. Kolkka. In December 1995 Ramos Tena advised Butters
(who had only been manager for a few months) that S. Kolkka
had once told them that she would show them a price list but
that she never had. In addition, Zepeda in January 1996 says
the employees in the paint department noticed a reduction in
paychecks and all of them asked Paint Department Supervisor
Souza about the problem. Price problems were not resolved on
the whole, although Respondent usually corrected what it re-
garded as errors. Respondent did allow two employees to read
a handwritten price list as it stood in 1995, but they were unable
to copy the entire list.
Of course, the question of whether or not Respondent actu-
ally paid the correct prices to these employees during this time
is not before me. The only question is whether the employees
were engaging in a form of concerted protected activity in pur-
suing that information on May 10 and 13. The complaint does
not allege that any of these instances prior to those dates trig-
gered an unlawful response.
On Friday, May 10, a payday, the night-shift welders became
concerned that their paychecks were short. In a group they
went to Night Supervisor Fernando Flores and demanded to
speak to John Kolkka about the question. Manager Butters
observed the group talking to Flores and momentarily inquired

4 At the hearing Cortez spelled his name Cortes, although he had
trouble spelling it. He said “Cortis.” The payroll records show it to be
“Cortez.” I shall use that spelling here as it comports with company
records.
regarding what was going on. Because they were piece work-
ers, he assumed that the only reason that their paychecks were
smaller was because they had not produced as much as they
usually did. He left and the matter remained with Flores. Flo-
res acceded to the employees’ request that he speak to John
Kolkka on their behalf. One of the employees, Sergio Barajas,
asked if they could sit in while Flores talked to Kolkka, but
Kolkka insisted on speaking with Flores and Butters in his of-
fice. Through the office window, the employees could see
Flores, Butters and Kolkka all conversing. The conference
lasted approximately 2-1/2 hours.
In the meantime, the workers simply stood by their equip-
ment and awaited the outcome of the meeting. They did not
engage in any production that night. When Flores returned to
them, he advised that he had a solution to their problem of not
knowing the piece rates. He told them that in the future Re-
spondent would write down the piece rate on the goldenrod
copy of the work orders which they normally received after
they had completed their particular piece of work, but which
had not previously shown the price. This was a significant
change from Respondent’s practice in the past. Yet, the work-
ers were not satisfied because they wanted to know the prices
before they began work. Even so, this information for the first
time allowed them to calculate on their own the gross pay
which they were to receive in a pay period. Displeased, they
told Flores that they wanted to leave work and go home. Flores
observed that they hadn’t really begun work that night anyway
and it was pretty much a lost evening, so he granted permission
for them to leave. He told them to return to work on Monday.
The entire shift then left.
Over the weekend word of the encounter was transmitted by
word of mouth from the night-shift employees to the day-shift
employees. On Monday, May 13, the day-shift welders deter-
mined they would not work. They were joined that day by
some, if not all, of the day-shift painters. There is also testi-
mony that some of the night-shift welders appeared in a show
of unity. Sergio Barajas, one of the night-shift welders, testi-
fied that over the weekend the workers had “agreed that all of
us would go at 10 o’clock on Monday to speak with John
Kolkka about the prices.”
Before describing what occurred on Monday, May 13, it
should be noted that the General Counsel’s complaint asserts
that as a result, Stephanie Kolkka told employees that they were
fired; and that Respondent “terminated or suspended” the em-
ployees involved in that incident including (but not limited to)
Cortez, Rigoberto Moreno, Efrain Ramos Tena, Zepeda, Rod-
rigo Cuevas, Jose Chavez, Jorge Garcia, Francisco Barajas, and
others unknown to the General Counsel.
At approximately 8 a.m. that morning, the workers arrived as
usual. Although some may have begun preparing their areas to
perform work tasks, none of them actually went to work. The
word had spread that the workers wanted to meet with John
Kolkka and would not begin work until such a meeting had
been arranged. Jose Zepeda testified that on the morning of
May 13, a coworker named Jorge came to him and told him that
it was time to leave; time to “go on strike.”
Unknown to them, John Kolkka had not planned to come to
the plant that morning. He had earlier told Butters that he would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
not be in until Wednesday. When Butters arrived at approxi-
mately 8 a.m. on Monday, he observed the welders milling
around and he tried to find out what was happening. At one point
he went to the paint shop and by then a number of individuals
had come from both plants, perhaps in part to purchase coffee
and snacks from a snack truck which normally serviced the area.
Although there is some variance regarding what occurred, again
perhaps due to the language barrier, employees demanded that
they be allowed to speak to John Kolkka. When he learned they
wanted to speak to John Kolkka, Butters told them that he was
the boss, that they could speak to him. He also told them that if
they wanted to speak to Kolkka, they would have to come back
on Wednesday morning, aware, of course, that Kolkka did not
plan to return to the plant until then. His remark was later inter-
preted by some employees to mean that they could not come
back until Wednesday.
In any event, Butters returned to the office and reported the
occurrence by telephone to John Kolkka. About 10 a.m., John
Kolkka did appear at the plant and the approximately 45 em-
ployees who were waiting followed him into an area adjacent to
his office. He said that he would meet with one of them to
discuss their problems but they insisted on speaking to him en
masse. His conversation did not get very far before Stephanie
Kolkka strode up to the group from her office area and, singling
out Rigoberto Moreno, took him into John Kolkka’s office.
That office has a window which opens on to the plant floor.
She, John Kolkka, Butters, and Moreno then had what appears
to be a relatively heated exchange during which she accused
Moreno of being the leader and demanding that he direct eve-
ryone to return to work. Rigoberto Moreno denied being the
leader of the work stoppage.
The General Counsel asserts that Stephanie Kolkka physi-
cally assaulted Rigoberto Moreno during the discussion. While
she was certainly animated during the confrontation, she never
struck Moreno or injured him in any way. It would be an exag-
geration to conclude that a physical assault occurred. I find that
it did not.
Eventually Stephanie Kolkka came out of the office and be-
gan speaking to everyone in an angry fashion. Welder Efrain
Ramos Tena surreptitiously recorded her words and the words
of some of the individuals in response. A copy of the recording
is in evidence as General Counsel’s Exhibit .8. A corrected
transcript is also in evidence as General Counsel’s Exhbit 7(b).
The tape itself is about 4 minutes long but S. Kolkka does not
begin speaking until the second minute. At the end she is
joined by John Kolkka, who made some remarks. Much of the
recording is either unintelligible or unintelligible Spanish. The
portions of the transcript spoken by Stephanie Kolkka and John
Kolkka are set forth in the footnote, but do not reflect the
pauses, the initial reasonableness of tone or the later angry tone
demonstrated by Stephanie. Nor do they reflect the relatively
calm tone used by John Kolkka in conclusion.5

5 Stephanie Kolkka:
Okay you have a choice. I will talk to you one at a time, I’m not
gonna to talk to you like this, if you don’t want to do that, you can go
home and I’m closing down the shop. You understand? You under-
stand? I know you understand George. . . . Okay, so, that is your
It can be seen from the transcription, and heard via the tape,
that at the end of the meeting, John Kolkka specifically asked
for individuals to speak to him (or perhaps Stephanie) one at a
time “or nothing.” Efrain Ramos Tena, apparently speaking for
the entire group, says “nothing” and at that point all of the peo-
ple who did not wish to speak to the Kolkkas on an individual
basis left. That was about 14 people. Approximately 30 other
employees elected to stay and resumed work.
The individuals who left gathered in a nearby park for a short
while, then visited a community group lawyer. They decided to
do two things. First they decided to return to work on Wednes-
day, supposedly relying on John Butters’ earlier direction that
they return on Wednesday. They also decided to contact the
Carpenters District Council to seek representation.
On Wednesday, May 15, all the employees who had chosen
to leave on May 13 returned seeking to work. The General
Counsel estimates that somewhere between 17 to 20 workers
had actually left. Yet, the evidence shows 12 individuals re-
ceived some sort of warning as a result of their refusal to work,
and two were subsequently discharged. That suggests only 14
individuals were actually involved in the refusal to work.6

choice. So, if you want to talk in your little mob scene, I’m gonna to
close down the shop and I will do it. You want to talk to me one at a
time, I will do it. I expect the rest of you to go back to work while I am
talking to the other people. If you’re not willing to do that, I will close
down the shop. So, what do you want to do? (inaudible male voice,
approximately 4–5 words). Because you speak English, that’s why.
. . . .
[pause during which inaudible background discussion occurs]
Stephanie Kolkka: Would you please repeat this please? I will talk
to everyone one at a time and I expect other people to go back to work
[pause during which translation presumably occurs]. If they are not
willing to do that, then I am closing down the shop [pause during which
translation presumably occurs][followed by unintelligible voices speak-
ing together, some Spanish, some English]. I will not be brow-beaten
like this, and you’re gonna lose your jobs, you’re gonna lose your job
over it, and I am not fucking around.
[Partially intelligible discussion occurs].
John Kolkka: Okay, one at a time, because everybody’s gotta a little
different situation here. You guys. Some of you guys have a problem
with your paychecks. I know some you guys don’t have a problem
with your paychecks. The other guys are just hanging around for the
party. Okay.
Stephanie Kolkka: It’s no game and it is no party. And I will close
down the shop and you will lose your jobs if you do not do what I tell
you to do, and I am not fucking around here. So, it’s up to you, one at a
time, or nothing. And I expect the rest of you to go back to work while
I am talking to the other people. And I want to talk to you first.
[Person believed to be Efrain Ramos Tena asks in Spanish if David
[Palacios] can translate; a translation seems to begin but John Kolkka
interrupts.]
John Kolkka: The guys that want to go, they go. The guys that stay,
stay. . . . One at a time or nothing.
Efrain Ramos Tena: Nothing.
6 The individuals who received warnings were: Rodrigo Cuevas (a
night-shift employee for missing May 10, 13, and 14); Raul Alaniz (a
day-shift worker for missing May 13 and 14); Roberto Barajas (a night-
shift worker for missing May 10, 13, and 14); Sergio Barajas (a night-
shift worker for missing May 10, 13, and 14); Carlos Bracamontes (a
day-shift worker for missing May 13, and 14); Jose Chavez (a day-shift
employee for missing May 13, and 14); Jesus Cortez (a night-shift
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 857
The General Counsel also asserts that Respondent has exhib-
ited special animus toward the concerted activity because the
night-shift workers were warned for the May 10 absence, even
though Butters and Flores had given them permission to leave
that evening. I am not certain that I can reach that conclusion
because the fact is that although they were permitted to leave,
they still performed no work that evening. It is probably better
to analyze the matter in the overview by observing that both on
May 10 for the night-shift employees alone and on May 13 for
the day-shift employees and those night-shift employees who
joined them, that they were all engaged in a concerted refusal to
perform work. That is, they were engaging in a strike. Liberty
Cork, 96 NLRB 372, 374 (1951). Cub Branch Mining Co., 300
NLRB 97 (1990). Thus, to the extent that the activity was pro-
tected by the Act, the warnings that were levied upon them for
unexcused absences were unlawful. Indeed, I find that those
warnings were issued in violation of Section 8(a)(1) of the Act.
Robbins Engineering, 311 NLRB 1079 (1993); MCI Mining
Corp., 283 NLRB 698, 704 (1987).
The General Counsel also asserts that these individuals were
“suspended” between May 13 and 14 prior to their return. The
General Counsel’s basis for that conclusion is its assertion that
the individuals had been threatened with loss of their jobs and
had been told at the end of the meeting upon May 13 that they
should leave. In fact, what they were finally told was that they
could meet with John/Stephanie on an individual basis or
“nothing.” The job loss threat was not carried out during the
strike. Indeed, based upon Efrain Ramos Tena’s remark, they
chose “nothing” and left. Clearly, an employer is entitled to
insist that workers, who choose neither to work or talk about it,
leave the premises. It is true that in her frustration Stephanie
said some things which warrant scrutiny. She said that if indi-
viduals were not willing to return to work she was going to
close down the shop, that she would not be brow-beaten and
that individuals were “gonna” lose their jobs, punctuating that
with a expletive.
Nonetheless, a reasonable interpretation of her words, as fol-
lowed by the deeds, was that the individuals who would not
return to work were to leave the premises. The Board has long
held there is nothing unlawful about such a statement made to
strikers. Wilson & Co., 77 NLRB 959, 979 (1948), other parts
of case revd. 173 F.2d 979 (5th Cir. 1949); Electric Auto-Lite
Co., 80 NLRB 1601, 1605–1606 (1948); Crookston Times
Printing Co., 125 NLRB 304, 316 (1959).
The General Counsel, however, interprets that remark as be-
ing either a discharge or suspension. Yet, Stephanie’s reference
to closing the shop, in context, simply meant that if everyone
left that day she would be obligated to close the shop for the
day, as no work could be performed.7 Even so, all of that was

employee for missing May 10, 13, and 14); Jorge Garcia (a day-shift
employee for missing May 13 and 14); Jorge Rocabino (a day-shift
employee for missing May 13 and 14); Mario Torres Sandoval (a night-
shift employee for missing May 10, 13, and 14); Jose L. Tena (a night-
shift employee for missing May 10, 13, and 14); Luis Vega (a night-
shift employee for missing May 10, 13, and 14).
7 Stephanie’s remark made in heat (“you’re gonna lose your jobs”)
was not so much a threat of discharge as it was an effort to persuade the
employees to stay. Such a remark only rises to the level of a tactical
overridden by John Kolkka’s willingness to talk to the indi-
viduals, insisting that the conversations be one at a time. When
the fourteen employees, led by Efrain Ramos Tena, said “noth-
ing” and walked out, the employees who left the premises must
be considered to have been on strike, rather than having been
discharged or suspended. Therefore, the General Counsel’s
contention that these individuals were suspended and entitled to
pay for the 2 days for which they were on strike is unsupported
by the evidence. They were neither discharged nor suspended
on May 13. Their decision to remain off work until Wednesday
was voluntary. Whether they stayed out due to their interpreta-
tion of what Butters had said earlier or whether they simply
chose to stay out for 2 days before returning is of no moment.
Strikers are entitled to concertedly withhold work until they
choose to return. The choice is theirs, not the employer’s. No
decision of the employer comes into play until the strikers offer
to return. That occurred on May 15 and the individuals were
treated as described above.
In fact two returning strikers were fired on May 15. These
were Rigoberto Moreno and Guillermo Cortez. On that day
Respondent also suspended Efrain Ramos Tena.
According to Butters, when he came to work on May 15, he
discussed the situation with John and Stephanie Kolkka and
learned that they had decided to discharge Rigoberto Moreno,
Guillermo Cortez, and Efrain Ramos Tena. He testified that he
did not have any problems with the discharge of Moreno or
Cortez, but that he believed that the discharge of Tena was
unwarranted and he argued in favor keeping Tena. As a result
of his intervention, the Kolkkas reconsidered and decided to
keep Tena. These three individuals will be discussed individu-
ally. In addition, Jose Zepeda’s subsequent separation will be
analyzed.
1. Guillermo Cortez
As noted previously during the morning of May 15 all of the
individuals who had left on May 13 and who returned on
May 15 were scheduled during the day for meetings with mem-
bers of management. Cortez was called into the office about
10:30 a.m. where he spoke to Butters, Stephanie Kolkka and
Hector Pedraza. Pedraza was the translator as Cortez is only
marginally capable in English. Moreover, I have certain reser-
vations about Cortez’ credibility generally. At the time he testi-
fied he was incarcerated in a state penal institution having been
convicted of a felony for the sale of illegal drugs. Beyond that,
his demeanor on the witness stand suggested that he was not
fully interested in telling the truth. He wished to ingratiate
himself in some respects, and also wanted to shade and argue.
His credibility on a related matter, dealing with Respondent’s
employment of undocumented aliens, is significant to the Gen-
eral Counsel’s case in that area.
With respect to Cortez’ discharge on May 15, Respondent
does not really contest its illegality. Instead, it asserts that Cor-

threat, if anything. See Woodlawn Hospital, 233 NLRB 782, 788
(1977); Matlock Truck Body & Trailer Corp., 217 NLRB 346 (1975).
Moreover, her words were overridden by owner John Kolkka who told
them to go to work and talk to him one on one or “nothing.” The em-
ployees chose “nothing.” Certainly no discharge was effected on
May 13.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
tez is not entitled to reinstatement because during the course of
that discharge interview he threatened “to get” Stephanie
Kolkka.
Although Cortez testified about the conversation in some de-
tail, it is not necessary to describe it here as Stephanie Kolkka
testified that Butters simply told Cortez, “On May 13, you
abandoned your job, and we’re choosing not take you back.”
Stephanie then testified that Cortez argued that he was a very
good worker, although Butters disagreed, and when Cortez
finally realized that the company’s decision was final, he
leaned forward into Stephanie’s face, pointed his finger and
said, “I’ll remember this, Stephanie. I’m going to get you.”
The meeting ended at that point and Butters told Cortez that he
could pick up his check later in the day.
Cortez denies making such a threat, but frankly based upon
his demeanor, I am unable to credit him. Even so, the threat is
vague and appears to have been made in the heat of the mo-
ment. If anything, it may have manifested itself later in a non-
violent way with reference to the undocumented alien issue. I
do not find it sufficient to warrant changing the standard rem-
edy relating to an incarcerated felon.
2. Rigoberto Moreno
As noted earlier, Rigoberto Moreno was the individual
whom Stephanie Kolkka believed to be the leader behind the
walkout of May 13, having singled him out earlier and taken
him to John Kolkka’s office. Rigoberto Moreno had been in-
volved in earlier incidents regarding the price list issue. He is
outspoken and sometimes abrasive, but is also a highly skilled
welder who had fabricated some of the molds or “jigs” which
Respondent used in its production procedures. Because he had
fabricated them, he believed he had a possessive interest in
them, although Respondent had paid him both for the work and
for the devices. He nonetheless viewed them as his personal
property.
On May 15, when he returned, he found himself discharged.
He was unable to describe the discharge interview, not under-
standing the General Counsel’s questions very well. He
seemed more interested in the post-discharge issues relating to
the demand for the jigs. Even so, there is little dispute over
what he was told. Butters says he told Rigoberto Moreno that
on May 13 he had refused to work, had walked out and had
abandoned his job. “As far as we were concerned, he was no
longer employed there, and we elected not to take him back.”
As with Cortez, there is really no dispute about Rigoberto
Moreno’s discharge. Clearly he was being discharged because
he had participated in the walkout. In addition, he had recently
had been perceived by Stephanie as being the leader of the
walkout. Again, Respondent does not really contest the allega-
tion that the discharge was unlawful, but does assert that Mo-
reno’s behavior immediately following the discharge warrants a
denial of reinstatement.
According to Butters, Moreno mumbled something about
how he didn’t want any problems for himself or his son,8 and

8 Rigoberto’s son is Frederico Moreno, an occasional translator and
an individual who later became a supervisor on September 13, 1996. It
is apparent that sometime in the past, Rigoberto and Frederico had
become estranged, the estrangement having occurred as early as 1994.
told Butters, “I want to take my stuff with me.” Butters told
him that he could take his personal materials, but company
property had to be left behind. At that point, according to But-
ters, Rigoberto Moreno began demanding his molds. An argu-
ment ensued during which Moreno told Butters that if he
couldn’t take them he would destroy them. As a result of that
exchange Butters asked Stephanie Kolkka to call the police.
They arrived a short time later. In the meantime, Moreno
cooled off, and began organizing himself for departing. After
obtaining his personal items, he then collected the molds/jigs
which he had stored in various places, including his tool box,
his locker, and some along the ceiling. During the process,
according to Butters, he slammed a few items on the floor. It
does not appear that anything was actually damaged. In gen-
eral, the jigs are made of heavy metal (although there are
lighter ones) and the tools apparently withstood the maltreat-
ment. My impression of it all is that Moreno was expressing
his anger over the discharge, but did not actually exceed the
bounds of civil behavior. Nonetheless, Rigoberto Moreno did
testify that had he not been restrained, he would have destroyed
the jigs with his blowtorch.
Since his departure from the company, he has declared him-
self to be totally disabled, having filed a claim to that effect
shortly after his discharge. Accordingly, Respondent argues
Moreno is not entitled to an offer of reinstatement because he is
permanently disabled.9 That issue will be dealt with in the
remedial order.
3. Efrain Ramos Tena
As noted earlier, Butters had persuaded the Kolkkas not to
discharge Efrain Ramos Tena. Ramos Tena did meet with But-
ters and Stephanie Kolkka in the afternoon of May 15 and was
informed that he was being suspended until Friday, May 17. A
memo to Ramos Tena’s personnel jacket signed by Butters
describes the circumstances:

On Monday, 5/13/96, Efrain refused to work and left the
work place and did not return until Wednesday 5/15/96.
The insubordinate attitude Efrain displayed toward
Stephanie Kolkka and the unexcused absence compelled
us to administer a three day suspension, effective 5/15/96
and including 5/16 and 5/17/86.
A copy of this memo will be kept in Efrain’s personnel
file.

As can be seen, the suspension is aimed at Ramos Tena’s
having engaged in the strike. It does reference a nondis-
criminatory motive, the supposed “insubordinate attitude” dis-
played towards S. Kolkka. Nevertheless, there is no real evi-
dence that he displayed any insubordinate attitude toward

Rigoberto’s expressed concern for Frederico seems mildly misplaced in
the circumstances.
9 Respondent also contends that Rigoberto Moreno does not possess
a valid social security number and is likely an undocumented alien not
entitled to reinstatement. A comparison of Moreno’s social security
number as shown on his payroll ledger sheet with the valid range estab-
lished by the Social Security Administration (R. Exh. 28) shows it to be
presumptively valid. The number he uses begins with 559, within the
valid range of 001 through 587. See further explication, infra. Accord-
ingly, this defense is rejected.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 859
Stephanie or anyone else either during the May 13 walkout or
during the conversation of May 15. Accordingly, the only rea-
son for the suspension was because he had engaged in a strike.
I note that he was not discharged nor was he simply given a
warning like the others; for some reason Respondent chose to
follow some intermediate level of discipline, greater than a
warning, but less than a discharge. This suspension violated
Section 8(a)(1). Robbins Engineering, supra; MCI Mining
Corp., supra.
During the May 15 discussion with Butters and Stephanie
Kolkka, they did advise him that some changes were being
made in the manner in which he would perform his work. In
the past, he says, his only real “supervisor” was John Kolkka
himself and that his duties involved a great deal of “custom”
work for him. Ramos Tena testified that Stephanie told him
that he was no longer to take directions from John Kolkka, but
to take them only from Pedraza. The General Counsel asserts
this to be a significant change, but I do not find the facts to
support that allegation. Pedraza had become the day-shift
welding supervisor in September 1995 and had been Ramos
Tena’s supervisor since that time. In fact about a week before
the May 13 walkout, Pedraza had signed an accident report on
Ramos Tena’s behalf when he injured his foot. In May Pedraza
was not being newly assigned to supervise Ramos Tena as the
General Counsel contends. He had been Ramos Tena’s super-
visor all along.
I am unable therefore to conclude that Stephanie’s decision
to assign him, after his suspension, to Pedraza was any kind of
punishment. It was nothing more than to say that he was going
to be asked to take all of his assignments directly from Pedraza
rather than from John Kolkka. One of the concerns Butters had
was that although Ramos Tena reported for work at about 8
o’clock or thereafter he often did not begin performing actual
tasks until after speaking with John Kolkka. All Respondent
was really doing was to give Ramos Tena his assignments
somewhat earlier, thereby allowing him to begin working on
his pieces sooner. In reality this allowed Ramos Tena the op-
portunity to earn more for himself as well as to increase his
productivity insofar as the company was concerned. I cannot
find that Stephanie did anything, aside from the suspension,
during the May 15 meeting which constituted an unfair labor
practice or which was fundamentally unfair. Even so, she was
unhappy with him.
Ramos Tena testified without contradiction that she told him
that if he did not want to work for Respondent, he could use the
three day suspension to look for another job. He told her he did
not wish to do so as he enjoyed working for Respondent.
Accordingly, I find only that the three day suspension consti-
tuted a violation of Section 8(a)(1).
4. Jose Zepeda
Jose Zepeda was a piece rate finisher who worked on the day
shift. He had been involved, not as a leader, but as part of the
group in some of the earlier efforts by employees to obtain the
price list. In the May 13 incident, he was principally a fol-
lower, although he did speak to Butters shortly before John
Kolkka arrived. Zepeda principally speaks Spanish. His Eng-
lish is very poor. He is apparently able to formulate short Eng-
lish sentences, but cannot conduct a conversation in English.
He initiated a conversation with Butters saying they were wait-
ing for John Kolkka and wanted to speak to him but Butters had
no response for him. Later, when Kolkka did arrive, Zepeda
says that when everyone gathered around him, in front of his
office, Zepeda told him, “John, we want to speak with you.”
When Zepeda made the remark to John Kolkka, Kolkka looked
around and waited for someone to speak. No one did so. Ac-
cording to Zepeda, Kolkka then began to walk away. It was at
that point that Stephanie Kolkka arrived and the event previ-
ously described involving Rigoberto Moreno occurred. During
the remainder of the May 13 incident, Zepeda remained one of
the crowd. At the end, however, he joined those who left the
building.
On May 15, Zepeda returned, but asked for a few days ab-
sence due to a medical problem he was having with his eye. He
spoke to Jessie Souza, his supervisor, and asked for some addi-
tional days off to allow his eye to get better. Souza told him to
take whatever days he needed.
On May 20, the following Monday, Zepeda returned. By
then he had become aware that Rigoberto Moreno and Cortez
had been fired.
There are two distinct versions regarding what occurred on
May 20.
Zepeda says that he arrived at the plant at approximately 10
a.m. and went to Stephanie Kolkka’s office window. He
knocked and she turned around and saw him but did not let him
in. She came out and he asked her in English, “Stephanie, may
I return to my job?” According to him, she replied, “No more
job for you.” As a result, Zepeda left. He says he believes he
had been discharged.
Stephanie Kolkka testified that on May 20, she was in her of-
fice and sometime between 11 a.m. and noon, Zepeda came to
her sliding glass window. She opened it and the following
occurred:

Q. (by Mr. Thierman): And then what happened next?
A. (Stephanie Kolkka): The first thing he said to me
was “I quit.”
Q. Did he say it in English or Spanish?
A. In English.
Q. What did you say, if anything?
A. I said, “What? You quit?”
Q. And what’d he say?
A. He said, “I quit.”
Q. And then what happened next?
A. I walked out into the hall, and I said, “Do you
know what you are doing?” . . . and he said—“I want my
check.”
Q. And what’d you say?
A. I said, “Well, you’ll have to”—that was a Monday,
I said, “Payroll’s Friday. You’ll have to get your check on
Friday.”
Q. And what else happened? Anything?
A. I said “You need to go to your supervisor.”
Q. And who is his supervisor?
A. Jessie Souza.
Q. What happened after that, did he leave or—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
A. He left, and he said, “Okay.” He left, and I went
back into the office.

Later that day, she says Souza submitted a handwritten inter-
office memo (GC Exh. 6) which was directed to bookkeeper
Sherry Jones. In the memo Souza said, “Please be advised that
Jose Zepeda has tendered his resignation as of today’s date.
Please arrange for his final paycheck including any accrued
vacation pay.” The memo’s date box shows the date
“05/20/96.” The subject line says in what appears to be Souza’s
handwriting, “Jose Zepeda.” Underneath that line, also in
Souza’s handwriting, was the word “Resignation” followed by
Zepeda’s signature.
Zepeda testified that on May 24, when he returned for his
paycheck he spoke to Souza, who gave him the check, but then
asked him to sign a blank piece of paper. Zepeda did so asking
why he should. Souza explained that Zepeda was simply ac-
knowledging receipt of the paycheck.
The paper which Zepeda actually signed (GC Exh. 6), is
really not a blank piece of paper, but is a commonly used memo
form called “rapid memo” with boxes and lines.
Nonetheless, Zepeda denies that he ever told Souza or
Stephanie Kolkka that he was quitting. He also denies that he
knows what the English word “resignation” means. The parties
stipulated that Zepeda never described the circumstances of
signing the blank paper in the affidavit which he gave the
Board investigators.
Based on Zepeda’s testimony, the General Counsel asserts
that Zepeda was fired by Stephanie Kolkka on May 20 and was
later tricked by Souza into signing a resignation letter. The
General Counsel points to Rigoberto Moreno’s similar testi-
mony, that Sherry Jones asked him to sign a blank piece of
paper when he was given his check. Respondent argues that
Moreno, while in the hearing room, had heard Zepeda’s testi-
mony to that effect and had fabricated his own to support
Zepeda. Like Zepeda, Rigoberto Moreno did not include such
a description in the affidavit which he presented to the Board
investigator.
Frankly, I have serious doubts about the testimony of both
Zepeda and Rigoberto Moreno regarding the presentation of
blank papers to sign. If employees are being paid by check, no
written acknowledgment or receipt is necessary. Their en-
dorsement is perfectly adequate and Respondent would know
that. The procedure seems to me to be entirely unlikely.
More to the point is the fact that Zepeda appeared between
10 a.m. and noon on May 24, some 2 to 4 hours after his regu-
lar starting time. Had he wished to go to work, he would have
reported at his usual 8 a.m. start time and gone directly to
Souza. The mere fact that he was aware of the discharges of
Moreno and Cortez would not deter him from reporting to his
normal work location. Moreover, if Respondent had wished to
fire him, it would have taken advantage of the sick leave which
he had taken between May 15 and May 20 to arrange for that.
Checks would have been prepared and would have been given
to him at the time he arrived to return to work. No such checks
were ready and it seems entirely unlikely that Stephanie Kolkka
discharged him on May 20.10
Accordingly, I find that the General Counsel has failed to
prove that Respondent discharged Zepeda on 20; the proof
instead demonstrates that Zepeda voluntarily quit on that day
for reasons of his own. Zepeda’s testimony regarding the entire
matter is not consistent with his affidavit or general probability.
I do not find it to be credible. This allegation will be dismissed.
C. The Union Organizes Respondent
1. An overview
During the employees’ May 13 and 14 strike, they decided to
seek union representation. They eventually contacted the
Charging Party, and organizers Jay Bradshaw and Luis Solares
were assigned to organize Respondent.
As will be seen, during the election period and thereafter Re-
spondent did indeed commit numerous violations of the Act.
Despite Respondent’s conduct, the Union had no difficulty in
obtaining sufficient authorization cards to support an election
petition. Indeed, the petition in Case 20–RC–17168 was filed
on May 29 only 14 days after the walkout ended. The Stipu-
lated Election Agreement was approved by the Regional Direc-
tor on June 18 and the representation election was conduct on
August 9. There were some challenged ballots which were
determinative of the outcome of the election and the Employer
filed some objections to conduct affecting the outcome of the
election. On September 19 the Regional Director issued a re-
port and recommendation on those matters and the Board, on
December 16, overruled the challenges and directed that some
of the ballots be counted. The revised tally of ballots was is-
sued on December 31. That tally showed that 25 votes had
been cast for the Union, while 18 were cast against representa-
tion. As a result of that tally, on January 8, 1997, a Certifica-
tion of Representative was issued in favor of Carpenters Local
2236 and the District Council.
It is against that background that most of the remaining alle-
gations are seen. One matter which transcends the first two
stages is the alleged constructive discharge of Efrain Ramos
Tena. Another matter which passes through and becomes the
third stage, is the separation from employment of the Barajas
brothers on December 30. Ramos Tena and all the Barajas
brothers were, to some extent, involved in circumstances relat-
ing to the union organizing. Other employees were equally
involved.
2. Social security and IRCA intrude
On May 23, only 10 days after the concerted activity walkout
and 6 days before the union filed its petition for an election, the
Social Security Administration, Office of Central Records Op-
eration, in Baltimore, sent Respondent a form letter. It advised
that more than 10 percent of the forms W-2 which Respondent
had filed with the Internal Revenue Service for employees for
the tax year 1995 showed names or social security numbers
which did not agree with SSA records. Among other things,

10 California law requires an employer to pay a discharged employee
for all his time on the day of the discharge. Respondent had followed
that law on May 15 with Cortez and Moreno and was well aware of the
requirement.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 861
that office advised that under the Internal Revenue Service
Code, the IRS could charge a $50 penalty each time Respon-
dent did not furnish a correct social security number and could
also levy a similar fine against the employee for failing to fur-
nish a correct SSN.
In addition, the SSA letter stated: “Before you file your next
annual wage report, please make sure your employment records
and the Form W-2 you report have your employees’ correct
names and SSNs.” It set forth some “tips” to follow to ensure
that the SSNs were correct. First, it suggested that the em-
ployer ask its employees to check their forms W-2 against their
social security cards and make any corrections which were
necessary. It further stated if the card was incorrect, to advise
the employee to request a corrected card from the nearest So-
cial Security office. The letter noted that a way to determine
whether an SSN was correct was to check the first three digits
to determine whether they fit the combinations which the SSA
had listed in the letter. It went on to say that any SSN contain-
ing numbers other than those listed were not valid.
Another tip was to ask to see each employee’s social security
card and record both the name and number exactly as shown on
the card. Seeing the card, according to the SSA, would help to
ensure that all the records were correct.
Although the letter contained some additional material, it
concluded by setting forth a toll-free number which the em-
ployer could call to answer other questions.
Upon receiving that letter, Respondent, particularly book-
keeper Sherry Jones, realized that not only were IRS problems
being raised by the invalid social security numbers, there were
other equally serious problems. Since SSNs are often utilized
as one of the “identifiers” on the I-9 forms required under the
Immigration Reform and Control Act of 1986 (IRCA), false
SSNs could lead to sanctions under that statute as well. Those
sanctions are both civil and criminal.
Jones then tracked the social security numbers of at least
some of the employees. She determined that nine employees
did not have SSNs that fell within the range described by the
SSA. Based upon that information, Respondent, beginning on
May 29, and lasting through June 7,11 delivered letters to each
of the nine employees. An example is a letter delivered to Vin-
cente Medina on May 29. The letter advised that pursuant to
information provided by the Social Security Administration that
his SSN was invalid. It further stated: “In order for you to
continue your employment with this firm you must contact the
local social security office and obtain a written verification of
your valid social security number.” Pending resolution of that
problem, the employee was not permitted to work. After a
short absence, eight of the nine employees returned. Seven of
those, Julio Flores, Robert Hurtado, Moises Barajas, Jose A.
Tena, Jose L. Tena, Juan Tena, and Miguel Tena, all came back
within a few days. Medina returned on July 22, some 6 weeks
later than the others. One, Mario Mendez never returned. All
of those who returned presented SSNs which fell within the 3-
digit range prescribed by the Social Security Administration.

11 Respondent stipulated that on June 7, it hand delivered copies of
the letter to the rest of the individuals who had not already received
one.
Butters testified that their quick return did cause some suspi-
cion. Although the letters to the employees had said that they
needed to have written confirmation from the Social Security
Administration, that requirement was not enforced. Once the
first three digits of the new card fell within the range of num-
bers which were acceptable, Respondent allowed them to return
to work.
The General Counsel argues that because of a font variance
that appears on the face of the newly presented social security
cards (see GC Exhs. 129 through 133, and R. Exh. 25), Re-
spondent knew or should have known that they were false,
particularly when presented as quickly as they were. Further-
more, the General Counsel points to the testimony of Guillermo
Cortez to the effect that in 1990 or 1991, he observed Stephanie
Kolkka tell two employees to get some money from the book-
keeper to allow them to purchase false documents. Together,
the General Counsel argues, that evidence supports the conclu-
sion that Respondent knows that many of its employees are
illegal aliens, not entitled to work in the United States and that
it was taking advantage of their illegal status and using the
social security card problem as a excuse to discharge individu-
als who were believed to have been engaged in union activity.
In particular, that argument comes to the fore infra, in dealing
with the Barajas brothers’ separation in December.
However, as noted in a previous section, I simply do not be-
lieve Cortez. He is not a reliable witness, not only because of
his felony conviction, but because of his general demeanor and
presentation. Furthermore, there is a substantial likelihood that
Respondent believed these individuals had worked their prob-
lems out with the Social Security Administration and simply
chose, as it was obligated by IRCA to do, not to look beyond
the face of the documents,12 their suspicion notwithstanding.
Moreover, there is no evidence that Respondent did compare
the cards’ fonts or that it would have meant anything if it had.
The photocopies of the cards are no doubt separately kept in the
respective personnel files of each employee.
Furthermore, as Butters testified, Respondent had become
sensitive to the social security number issue in an unfair labor
practice context. Once it wrote the letters to the employees in
May and June, the letters drew unfair labor practice charges
from the Charging Party, Cases 20–CA–27302–1, filed on
June 12 and 20–CA–27302–3, filed on July 1. Eventually both
of those charges were dismissed by the Regional Director, but
they gave Respondent pause. From its perspective it did not
know how to proceed. On the one hand, the Social Security
Administration had directed it to correct a greater than 10-
percent error problem with its social security numbers, by giv-
ing directions to its employees to make corrections. Without
the corrections IRCA barred them from working. On the other
hand, when it tried to follow the IRCA mandate,13 unfair labor
12 See discussion at sec. IIID and fn. 32, infra.
13 I shall not attempt here to describe in detail the various activities
which are barred by the Immigration and Naturalization Act and its
amendments, including IRCA, but observe that 8 U.S.C. § 1324(a)
describes the criminal penalties for bringing in and harboring certain
aliens or for utilizing those aliens for purposes of commercial advan-
tage. Depending on the fact pattern, an individual such as Respondent
might find itself criminally liable for felonies for which the penalty
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
practice charges were filed asserting that such conduct violated
the National Labor Relations Act.
The General Counsel does not give much weight to this par-
ticular dilemma, but in fact it is quite real. That is so even
though the Regional Director had dismissed the two charges in
question. Respondent, advised by counsel, undoubtedly didn’t
know which risk to take. In fact, if one looks at the financial
liabilities, discharging an individual in the face of a Section
8(a)(3) would create for larger financial liability than the $50
fine from the Internal Revenue Service. However, the fines
levied by the INS under IRCA can be substantial and if the INS
asserts that an employer is engaging in a pattern and practice of
hiring illegal aliens, that could create substantial criminal liabil-
ity. Respondent assessed its principal risk as being from the
Board, and decided to halt the social security number review,
although it had not yet fully inquired about the validity of all its
staff members’ social security numbers. After all, its most
immediate problem was dealing with the upcoming NLRB
election.
3. Early organizing and some 8(a)(1) conduct
I now turn to a series of allegations involving Section 8(a)(1)
which occurred in connection with the Union’s organizing ef-
forts as well some which occurred after the election, but during
the processing of the objections and challenges. Some of these
8(a)(1) allegations involve suspensions.
Actual union organizing began on May 25 when organizer
Bradshaw conducted a meeting at the Redwood City Commu-
nity Center. There were about 35 employees in attendance and
most signed union authorization cards. They formed an orga-
nizing committee consisting of about seven or eight individuals,
later expanding that number to nearly anybody who wanted to
belong. As a result of that meeting, on the following Tuesday,
May 27, at the 4:30 p.m. shift change, Bradshaw appeared at
the plant together with the committee and spoke to John
Kolkka.14 He told Kolkka that the workers had joined the Un-
ion and he wanted to talk about negotiating a contract. Kolkka
ordered him off the property and said if the workers didn’t get

ranges from 5 to 1 years in prison. Furthermore, an employer who
knowingly hires at least 10 individuals while having actual knowledge
that those individuals are illegal aliens is subject to a 5-year imprison-
ment term as well. In addition, in both circumstances, significant
criminal fines may also be imposed under Title 18 of United States
Code. IRCA itself provides for both criminal and civil penalties. See 8
CFR § 274(a)(10). In the case of a pattern or practice of violation of
that act, an employer can be fined up to $3000 for the hire of each
unauthorized alien as well as a 6-month prison term for engaging in the
pattern or practice. And, an employer found to have knowingly hired
an illegal alien can also be subject to civil penalties ranging from $250
to $2000 for the first offense, $2000 to $5000 for a second offense, or
from $3000 to $10,000 for additional offenses. Finally, assuming that
the appropriate employment verification requirements had not been met
when the illegal aliens were hired, an employer would be subject civil
penalty ranging from $100 to $1000 for each of those violations.
14 The General Counsel asserts that Francisco Barajas and Sergio
Barajas were standing with Bradshaw during the May 27 discussion
and must have been perceived as being the forefront of the organizing
effort. Assuming that they were standing there, it does not follow that
they were perceived as being any more active than the rest of the 15 or
18 individuals who were present at the time.
back to work, they were going to be fired. Bradshaw protested
that the individuals were engaging in activity protected by the
National Labor Relations Act and that discharges might result
in Kolkka being liable. He then left a recognition form with
him, but Kolkka wouldn’t take it. Bradshaw says Kolkka be-
came very agitated and “got right in my face.” At that point the
night-shift workers put on their “Union Yes” buttons and
started their shift, while Bradshaw and the day-shift workers
met outside and held a short rally.
Two days later, the election petition was filed. Also on that
day, the Union sent a letter to Kolkka asking for voluntary rec-
ognition.
Subsequently, on June 4, Bradshaw and the committee again
met outside the plant during the afternoon shift change. Prior to
the second meeting Bradshaw had generated a petition with the
signatures of some 35 employees on it. It was in Spanish and
simply stated their reaffirmation of their support for the Union.
It also asked that Respondent reemploy workers who had been
discharged based on their participation in union activities. The
only individuals affected at that point were two of the persons
whose social security cards had been found to be irregular.
Bradshaw decided not to go into the plant and instead asked
Roberto Barajas to try to deliver the petition to Kolkka.
Roberto Barajas did not testify although Bradshaw says he
received a report from Efrain Ramos Tena that it had been re-
fused. Subsequently, it was faxed to the company. In the
meantime, Bradshaw led a rally of about 20 day-shift employ-
ees in front of the office.
A week later on June 14, Bradshaw conducted another rally
shortly before 4 p.m., consisting of both day and night-shift
Kolkka workers as well as 60 unrelated union members. There
is some evidence that John Kolkka and some other managers,
including Butters and Alicia Williamson, observed that rally.
Similarly, another rally was conducted on June 21 led by
eight organizers and supported by 25 to 30 Kolkka workers.
Another meeting was conducted on July 15. It was during that
period of time that Williamson prepared, distributed and posted
a flyer with a photocopied photograph of Bradshaw and his
bullhorn. The message on the remainder of the flyer refers to
that individual as a “Unionius goonis,” an endangered species.
If the flyer was an attempt at satire, it failed; it was only one
step away from vitriol. Yet, the flyer qualifies as speech pro-
tected by Section 8(c). It may have played a role in November,
together with another document, when Bradshaw was given a
citation based upon a citizen’s arrest generated by Williamson.
In addition to demonstrations in front of the plant, held
weekly and sometimes twice a week, the Union also engaged in
informational picket lines (perhaps best described as product
boycott picketing) at the stores of Respondent’s customers
through May 6, 1997.
On at least two occasions, prior to the August 9 election, Re-
spondent conducted a series of small meetings with plant em-
ployees. These were generally efforts to persuade the employ-
ees to vote against union representation. Although Respondent
is able to characterize at least some of this as permissible free
speech, it does not really contest many of the 8(a)(1) allega-
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 863
tions.15 There are problems of translation which Respondent
cannot effectively address and there may have been some over-
reach with which it will not quarrel. For that reason, I will
simply describe them by type. They run the gamut of familiar
preelection restraint and coercion. They include threats to close
the facility if the Union won, threats to move the facility to
another state if the Union won, statements that there would be
no future for employees if they voted for a union, threats to
institute stricter rules if the employees voted for the Union,
solicitation of grievances from employees and promises to rem-
edy them if the Union was not selected, interrogating employ-
ees about their union sympathies and the sympathies of co-
workers, threats of job loss if they supported the Union, threats
to reduce the piecework pay rate if they selected the Union,
threats of losing vacation requests if the Union won and threats
of “unspecified reprisals” because of their union activities.
All of these are violations of Section 8(a)(1) and need not be
detailed.16 Despite these systemic interrogations, threats, and
general coercive conduct, the Union obtained a majority in the
August 9 election, although the certification was delayed due to
the objections and the challenged ballots.

15 Respondent’s counsel, Thierman, in his opening statement of
May 28, 1997, basically conceded that it was not worth Respondent’s
while to attempt to refute 8(a)(1) statements. He said:
The other thing is I maintained throughout this trial, and I am
going to continue with that philosophy, is that there are miscellane-
ous 8(1) [sic] statements all over the place. Some may have hap-
pened. Some may have been mistranslated. Some may not have
happened. Penalties as the Board or Judge knows, is post[ing] the
notice. And the effort and energy expended when there is animus in
the air or statements that are floating around or whatever are also
going to be something I am going to consider as a cost benefit
analysis. And when you have one-on-ones on noncritical issues and
people talking to each other in hushed voices, sometime it’s best to
say, “fine” post a notice, and get on with life.
And so with all candor, I’ll tell you right now that I’m going
to try to keep this as short and sweet as possible. . . .
16 The following is a list of the 8(a)(1) allegations for which there is
factual support in the testimony of the listed witnesses. All were com-
mitted by John or Stephanie Kolkka unless a different supervisor’s
name is shown in the parentheses:
Threat to close or move the business if the Union won the
election: Francisco Barajas, Sergio Barajas, Jose Chavez, Rod-
rigo Cuevas, Moises Estrada and Mario Torres.
Threat to refuse to negotiate a contract with the Union, ren-
dering union organizing a futility: Sergio Barajas.
Interrogation of employees regarding their union sympathies
or how they intend to vote: Moises Barajas, Octavio Barajas, Jose
Chavez.
Offer of a bribe to an employee in the form of promo-
tion/wage increase to induce an employee to switch from pro-
union campaigning to pro-employer campaigning: Efrain Ramos
Tena.
Threats of unspecified reprisal if the Union won the election:
Moises Estrada, Moises Barajas.
Solicitation of grievances with an offer to fix them in order to
undermine the need for union representation: Rodrigo Cuevas,
Mario Torres.
Threats that employees would lose existing benefits or suffer
reduced wages if the Union won the election: Moises Barajas
(Pedraza); Francisco Barajas (Souza), Cuevas (Flores).
There is however one witness upon whom I do not rely at all.
He is Ariel De La Quintana. I have rarely experienced as an
administrative law judge a more intransigent witness. He was
called by the General Counsel to support some 8(a)(1) allega-
tions, but he demonstrated an uncooperative, truculent attitude
toward the Government attorneys. I granted their motion to
treat him as a hostile witness because he was even hostile in a
nonlegal sense. He repudiated his affidavit, asserting that he
was intoxicated when he signed it and had not read it. The
General Counsel urges that I accept his affidavit as true and
make findings pursuant to that sworn statement. Although the
rules entitle me to do that, I must decline. I am principally
concerned with Respondent’s inability to cross-examine such a
witness. He was not only hostile to the General Counsel, he
was hostile to the entire judicial process. Even assuming that
he was cooperative and attempting to tell the truth at the time
he wrote the affidavit, Respondent might well have been able to
effectively cross-examine him, had he been examinable in any
way. Certainly there is no evidence that Respondent procured
his attitude and that the affidavit should therefore be used
against it as some sort of sanction. Allowing this evidence
would simply permit the witness’ hearsay evidence to stand
unchallengeable. That, I can not bring myself to allow. More-
over, his affidavit smells of exaggeration.17
I now turn to issues raised by Respondent’s postelection
concern with union stickers. The stickers we are concerned
with are mostly small “Carpenters Local 2236” stickers but
there are some that say “Union Yes” in Spanish and there are
also some bumper stickers. Their size is not an issue here, nor
is the message. The stickers had appeared prior to the election
and were worn on individuals’ clothing and also applied to a
variety of items ranging from welding masks to tools, tool-
boxes, lockers, and other locations. There is no contention that
Respondent barred individuals from placing stickers on their
17 Page 2 of De La Quintana’s translated affidavit reads as follows:
There is no doubt that company knows that I am in favor of
the Union. Hector [Pedraza] saw my button and union hat and he
spoke to me frequently about the union. I remember that every
week, three or four times a week, Hector would speak to me about
the union. He told me if the union came in there would be no
breaks at work, we are going to loose [sic] workdays, and the em-
ployees would loose [sic] the opportunity to leave work to attend
court, or if their father or mother died. He told me this every
week during the months of June and August 1996 before the elec-
tion. After the election he spoke to me about the union two times
each week. He also told me that the union are thieves and it is no
good. . . . (Emphasis added.)
The frequency with which he describes Pedraza’s statements seem
most unlikely, unless Pedraza suffers some sort of antiunion obsession.
Frankly, in viewing Pedraza that seems unlikely. Moreover, De La
Quintana is only partly corroborated by Moises Barajas.
One question that might be asked of this witness is whether or not he
gave false testimony in his affidavit and went to great lengths to not
have to repeat the falsehoods during his live testimony. Whatever the
facts may be regarding why he did what he did, the account in his affi-
davit must be rejected and it should not be used in a substantive man-
ner. Accordingly, to the extent that the affidavit refers to lost work, lost
leave opportunities, and interrogations, poor future prospects or how he
intended to vote, it is unreliable. His entire participation in this pro-
ceeding is without value.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
persons, or wearing buttons or even apparel with a union, re-
lated message. Generally speaking, the facts as related below
deal with Manager Butters’ postelection directives to remove
the stickers from what he believed was company property. The
employees involved would not cooperate, sometimes on the
ground that it was their personal property, asserting Butters had
no right to issue such a directive. In at least one instance, a
toolbox, the ownership is disputed. From a company perspec-
tive, the issue was not one of stickers, as much as it was one of
insubordination demonstrated by a hostile refusal to follow the
directive.
Before discussing the facts, it is appropriate to be aware of
the Board’s law on the posting of stickers. In Malta Construc-
tion Co., 276 NLRB 2494 (1985), the Board observed that the
Supreme Court in Republic Aviation Corp., 324 U.S. 793
(1945), approved the Board’s holding that employees had the
right to wear union insignia and stated, “The right of employees
to wear union insignia at work has long been recognized as
reasonable and legitimate form of union activity. . . .” 324 U.S.
at 802 fn. 7. Malta then observed that in Kendall Co., 267
NLRB 963 at 965 (1983), the Board had said, “[A] rule that
curtails that employee right [to wear union insignia] is pre-
sumably invalid unless special circumstances exist which make
the rule necessary to maintain production or discipline, or to
ensure safety.” It then went on to hold in Malta that the em-
ployer’s rule prohibiting the placement of union stickers on
distinctive colored hard hats interfered with the right to wear
union insignia on personal apparel, even though the hard hats
had been supplied by the company and were not the property of
the employee.
Then, in Minette Mills, Inc., 305 NLRB 1032 (1991), enfd.
983 F.2d 1056 (4th Cir. 1993), the Board affirmed the adminis-
trative law judge’s dismissal of an allegation relating to the
posting of stickers on the wall of the facility. There the evi-
dence showed that employees had plastered approximately 150
stickers on the walls, windows, bathrooms, and bulletin boards
in the plant. These stickers were difficult to remove. They were
in such great quantity and so difficult to peel off that they con-
stituted defacement of company property. The administrative
law judge held that the threat of discharge over that conduct
was lawful because the company had a reasonable belief that its
employees were engaging in misconduct.
That can be contrasted with Orbit Lightspeed Courier Sys-
tems, 323 NLRB 380 (1997), which held that it was a violation
of Section 8(a)(1) of the Act for an employer to remove union
stickers from a lamppost on a public street outside the office.
However, no violation was found in Orbit when the employer
removed union stickers from bathroom walls and furniture in
the company’s offices. More recently, in Eastern Omni Con-
structors, 324 NLRB 652 (1997), the Board adopted the deci-
sion of an administrative law judge who rejected an employer’s
contention that so long as it permitted employees to wear union
buttons or stickers on their clothing, it could prohibit them from
wearing such items on a company supplied hard hat. The up-
shot of all this is that clearly the Board continues to draw a
distinction between employees wearing union messages on
their person and employees utilizing company property as a
semipermanent advertising sign.
Connected to that issue is the question of whether an em-
ployer violates Section 8(a)(1) by some sort of disparate en-
forcement. To some extent, the facts here suggest that Respon-
dent allowed other “stickers” to be posted on company walls
tools or machines which were not removed. Supposedly these
include a sticker from a radio station and a poster for a Mexican
movie. At the outset, it should be observed that the evidence
regarding these two matters is quite vague. There is no show-
ing where the radio station sticker was posted, whether on an
individual’s personal property or on a company owned item or
wall. Nor is there any testimony regarding how visible it really
was. Insofar as the movie poster is concerned, it seems that the
greater likelihood is that it has nothing to do with advertising,
but probably serves as some sort of decoration. One of the
employees also testified somewhat vaguely that he had put a
radio station sticker and a beer promotion sticker on a locker
and there were “some others” on a machine as well as some-
thing posted on some wood. His testimony is a little ambigu-
ous because it is unclear whether he was referring to the union
stickers or to other stickers.
The complaint attacks both Butters’ instructions to remove
the union stickers from employees’ personal belongings as well
as the punishment which allegedly followed.18
An amalgamation of the testimony of various individuals
leads to the conclusion that Butter’s directives all occurred on
Friday, August 23. They were given to three employees, al-
though one of them, Jorge Garcia, was not on duty at the time.
Jorge Garcia is an alien who has been authorized to work in
the United States. His permit must be renewed periodically. It
is undisputed that the permit expired on August 19 and that he
had been given, over the preceding weeks, several admonitions
to get it renewed, but he had not presented a renewal. He re-
ported for work on August 20. Shortly before 10 a.m., Butters
directed him to cease working until he obtained a renewal.
Garcia returned on the morning of Friday, August 23. Accord-
ing to Butters, he still did not have the permit and Butters told
him that there would be no work for him until he got it. Garcia
checked out at approximately 10 a.m. He appears to have been
slow to leave and got caught up in what followed.
Also that morning, Butters observed Efrain Ramos Tena’s
work area and noticed that there were four union stickers on
Tena’s toolbox. Tena admitted that he had approximately 20 or
30 such stickers in his possession. Butters, in the belief that

18 Butters testified that the company really had no policy regarding
stickers until June. His testimony:
At that time, the Union campaign was moving along towards
the election. Some of the anti-union people were putting up no-
tices on the bulletin boards and the union people said that they
didn’t like having those up. I said no one gets to use the bulletin
board, no one gets to put anything on the walls, no one gets to
have anything. I took down everything that had to do with any-
thing including bullfighting posters, letters, anything that the em-
ployees put up. . . . I had no policy about stickers on clothing.
According to him, the only policy dealt with stickers on company
equipment. He says that he advised his supervisors of the policy but
did not announce it generally. He is under the impression that his su-
pervisors told the employees themselves. The employees, however,
deny ever hearing of such a policy.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 865
the toolbox was company property, directed Tena to remove
them. Tena refused asserting that the toolbox was his personal
property. (He says it was a wooden toolbox which he had made
from scrap material provided by the Company.) Butters di-
rected him on at least four occasions to remove them, corrobo-
rated by the nearby Garcia, but Tena hotly refused to do so.
Butters, deeming Ramos Tena’s response to be excessively
hostile, told Tena to go home, that he was suspended. Ramos
Tena refused to leave and Butters called the police. Tena was
later escorted from the facility by the police department.
According to Garcia, Roberto Barajas had observed the con-
frontation and he chose to protest it. (As noted earlier, Roberto
Barajas was not called as a witness and we therefore do not
have his version even though he was the direct participant.)
Garcia asserts that Roberto Barajas made a cardboard sign
which said, “No discrimination” and hung it around his neck.
A short time thereafter, Butters observed the sign and, accord-
ing to Garcia, got into an agitated discussion about whether or
not Respondent discriminated against anybody. Butters asked
Roberto Barajas to remove the sign and according to Garcia,
Roberto refused. This, too, resulted in a direct refusal and But-
ters directed Roberto to leave. He refused and would not go
until after Butters called the police and they escorted him out.
Butters denies that he ever suspended Roberto Barajas on
August 23. He does say that he sent Roberto home that day,
when Roberto came and told him that he could not do the jobs
which had been assigned to him. He says Roberto told him the
company was out of stock on some parts for one of the projects
and he did not know how to do the other one. Hearing that,
Butters told Roberto that he had no more work for him to do
and that he should leave. Roberto refused. Butters did not
wish him to be standing around doing nothing, so he again
asked Roberto to leave the plant. Roberto continued to refuse.
As a result, Butters, well aware of his need to call the police to
remove Efrain Ramos Tena a few minutes before, decided to
call them back to remove Roberto Barajas. They did so.
A few minutes after Roberto Barajas was escorted out of the
plant, according to Garcia, Butters came to his work place and
observed that he had stickers on his bag and on other personal
possessions. On Butters’ request to remove those, he decided
to refuse as well. When Butters threatened to call the police to
remove him, Garcia agreed to go without the necessity of call-
ing the police. He says he wanted to “preserve his dignity.”
Butters denies the incident in its entirety with respect to Gar-
cia. He says that Garcia was not supposed to have been at work
that day anyway since he still did not have his work permit
renewed and he could not allow Garcia to work.
Garcia on the other hand flatly denies that he was off work in
mid-August for 3 or 4 days to renew his work permit. He
claims that he had already obtained an extension and therefore
was eligible to work beginning on August 20.
Butters, however, had placed a memo in Garcia’s personnel
file dated August 20 explaining his status. The memo notes
that Garcia had presented a letter from the INS indicating that
they had received an application for permanent resident status
and that Garcia was contending that it constituted a work per-
mit. Butters noted that he had told Garcia that he had to either
bring in a new work permit or a letter from the INS stating that
he was eligible to work.
Frankly, of the two versions, I find Butters’ the more logical
and more credible. Accordingly, his version is credited and I
find that Garcia was never suspended for anything involving
stickers.
In crediting Butters’ version here, I also note that Garcia is
the only person to have testified regarding the treatment of
Roberto Barajas, except for Butters. Why didn’t Barajas tes-
tify? Since I cannot credit Garcia on the one matter, I see no
reason to credit him on the other. Accordingly, I find that But-
ters’ version with respect to why he sent Barajas home to be the
more credible of the two.
In that regard, I note that even if Roberto Barajas had been
sent home, he came back a later that morning, apparently with
the assistance of Solares and/or Bradshaw. He spoke at that
time directly to John Kolkka and Kolkka put him back to work
that afternoon. He was only off work that morning from 10
a.m. to 1 p.m. Garcia, of course, came back to work the follow-
ing Monday, having presented appropriate evidence that his
work permit had been renewed. Had he simply forgotten to
bring it in earlier? That certainly seems likely.
Resolution of these two alleged suspensions, however, does
not resolve the issue of whether or not Butters improperly told
Efrain Ramos Tena that he had to remove the stickers from his
toolbox. It appears to me that Butters made a mistake here. I
accept Efrain Ramos Tena’s version that John Kolkka had
given him the scrap wood from which he had fabricated the
toolbox. Accordingly, he had every reason to believe that it
was his personal toolbox and it seems likely that it was. As the
toolbox was a personal item, Butters did not have the right to
insist that the stickers be removed from it. Accordingly, I find
that Respondent violated Section 8(a)(1) when it directed Ra-
mos Tena to remove the stickers.
It does not automatically follow, however, that one can
automatically conclude that since Butters suspended him fol-
lowing the discussion about the stickers that the suspension was
a violation of Section 8(a)(1) and (3). It is true that the trigger
incident was the stickers matter, and that Butters mistakenly
concluded that he had the right to order Ramos Tena to remove
them. Ramos Tena however responded in a defiant way. Re-
fusing to follow a direct order in the fashion that he did is an
insubordinate act. See Grand Rapids Die Casting, 279 NLRB
662, 667 (1987) [union steward who was engaged in the pro-
tected activity of writing a grievance, was insubordinate when
he refused to obey an order to return to work]. It seems to me
that Butters’ response to Efrain Ramos Tena’s refusal was
fairly tempered in the circumstance. He did not discharge
Tena, but only suspended him for one day. That seems to be a
relatively careful balancing of two competing rights. On the
one hand, an employer has the absolute right to expect obedi-
ence to a rule or directive even if that directive infringes upon a
protected right. The employee in that situation cannot be ex-
cessively insubordinate in defending what he knows to be his
protected right. There must be a clear balance between the
right of an employer to maintain order and discipline in the
plant (Kendall Co, supra) against the employees’ rights guaran-
teed by Section 7. Here, Ramos Tena defied Butters’ illegal
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
order by refusing to act upon it after having been given the
directive on four separate occasions. When he was directed to
leave the plant, he refused to go. At that point, the insubordina-
tion overrode the protected considerations. Ramos Tena knew
that the toolbox was his personal property and he also knew
that John Kolkka would back him up on the question. He
should have agreed to remove the stickers temporarily (after all,
he had 30 more), discussed the matter with Kolkka and re-
placed the stickers after having demonstrated that the toolbox
was his own. Instead, he became defiant and had to be re-
moved by the police.
The 1-day suspension which was imposed was a punishment
which fit the crime of insubordination. Furthermore, it was the
type of discipline which would be expected in any insubordina-
tion of this nature. Accordingly, I do not find that the General
Counsel has met his burden of proof required to demonstrate
that the suspension violated the Act.19
4. The alleged constructive discharge of Efrain Ramos Tena
The Departure
Efrain Ramos Tena is alleged to have been constructively dis-
charged in “mid-September 1996.” There is no dispute that he
resigned from employment. The only question is whether his
resignation was forced upon him because Respondent had made
conditions intolerable. In support of the contention that he was
constructively discharged, the General Counsel has set forth a
laundry list of incidents wherein Tena was supposedly mistreated
during 1996, ultimately resulting in his decision to resign.
There is no question that Efrain Ramos Tena had engaged in
a great deal of protected concerted and union activity beginning
with the May 13 walkout. There is, however, a substantial
question in my mind regarding whether he was any more visi-
ble in these activities than many other individuals. Even so, he
was visible as a union activist. He wore a union button and in
June he signed one of the petitions seeking better working con-
ditions including timely and correct pay.
I think it is fair to conclude that John and Stephanie Kolkka,
and perhaps Butters as well, had concluded that Efrain Ramos
Tena had leadership skills. They knew that he was articulate
and well spoken. At one point, recounted above, he had been
considered for discharge over the May 13 walkout but was not
fired as he was deemed to be a valuable asset. On June 20,
about 3 weeks after the Union’s petition was filed, he was
called to John Kolkka’s office where he spoke to both John and
Stephanie. He says that they attempted to recruit him to cam-
paign against union representation. He says John Kolkka asked
him to tell his coworkers that the union organizers were gang-
sters who only wanted the employees’ money. In addition, he

19 Efrain Ramos Tena was not the only individual who was disci-
plined for sticker-related insubordination that day. Miguel Tena, a
grinder and an individual who is specifically not alleged as a discrimi-
natee, had placed stickers on company equipment, walls and his ma-
chine. According to Butters, he was directed to remove them and re-
fused the direct order to do so. His response, according to Butters, was
“insubordinate, abusive, and he refused to do anything we told him to
do. . . .” Butters treated Miguel Tena’s refusal to remove the stickers as
a refusal to obey a direct order. Efrain Ramos Tena was not treated
differently from other insubordinate persons who refused direct orders.
says Stephanie offered him a manager’s position together with
“a very good salary.” According to him, this 2-hour meeting
was essentially a promise that if he took the company side in
the upcoming campaign, he would be rewarded with a signifi-
cant promotion and pay increase. Tena was suspicious of the
offer and in any event had been one of the individuals who had
urged union representation. Accordingly, he declined it. He
continued with his union activism, and served as the Union’s
election observer.
He says that after the election, he was told that his supervisor
would now be Butters, instead of John Kolkka. Although his
testimony is unchallenged here, the documentation does not
actually support it. His immediate supervisor still seems to
have been Pedraza. It is true that he continued to work with
John Kolkka on certain special projects, but Pedraza was at all
times his direct supervisor. Certainly Butters did not take the
time to perform that task. It should also be noted that Ramos
Tena, insofar as the performance of his actual work was con-
cerned, needed little supervision. He was highly skilled and
well understood the requirements of his job.
In fact, he had great pride in his skills and he did not believe
that either Butters or Pedraza was as skilled as he. He thought
the only welder in management who was his equal was John
Kolkka. However, he was entirely unaware that Pedraza had
reasonably good welding skills. Efrain Ramos Tena assumed
that because Pedraza had come from the grinding department to
become a supervisor, that he knew nothing about welding. In
fact, Pedraza had been the supervisor of both grinders and
welders and is a good welder.20 In addition, Butters himself
had welding experience including working on stainless steel
welds. However, Butters has not welded in over 20 years and
does not regard himself as current in the skill. Nevertheless,
Pedraza and Butters are clearly experienced and knowledgeable
about all matters relating to welding.
The General Counsel has asserted that the welding required
by Respondent is “sophisticated.” Butters does not agree. He
says it is relatively simply. Most of the welds are simply “spot”
or connecting welds on furniture legs and decorations. These
welds have nothing in common with truly sophisticated welds
such as those found in pressurized pipes or vessels, although
they must not undermine the beauty of the furniture.21
Thus, Efrain Ramos Tena’s assessment of Pedraza as his su-
pervisor is colored by either ignorance or some sort of profes-
sional jealousy. Certainly, he has no respect for Pedraza or
Butters, believing them not to be his equal.
The General Counsel asserts that Respondent constructively
discharged Efrain Ramos Tena because of the May 13 walkout,
and after his refusal to join in the company’s campaign against
the union, that it subjected him to constant, arbitrary and oner-
ous working conditions. These supposedly include the May 15
suspension previously discussed, the August 23 suspension
previously discussed, assigning Ramos Tena to a supervisor
20 Two of the General Counsel’s own witnesses, Jose Chavez and
Moises Estrada agree that Pedraza’s welding skills are pretty good.
21 Of course the welders also bend and shape metal parts under heat
using the jigs. That skill is similar to, but not the same as, making
metal connections as in a true weld.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 867
(Pedraza and later, Butters) who could not understand his work,
forcing him to perform duplicative work without compensation,
and reducing his wages.
Also included in the General Counsel’s list of Respondent’s
supposed mistreatment of Efrain Ramos Tena is an allegation
that tools were removed from his toolbox and placed in the
toolcrib, thereby depriving him of access to his tools. In actual-
ity, Efrain Ramos Tena’s tools were no different than the tools
used by every other welder. Shortly after Butters arrived in
1995, he realized that individuals were not sharing them. He
testified: “We had a limited number of tools, and a lot of the
employees would take the tools and stash them somewhere. . .
and we have two shifts, so the second shift might not have ac-
cess to those tools because the day-shift employee had stashed
them away somewhere. So I had to put in a toolcrib to monitor
what tools we needed to buy so that we had sufficient tools for
everyone and to kind of control who had what tools.”
From Butters’ point of view, Efrain Ramos Tena, by keeping
tools in his toolbox was not complying with the toolcrib policy.
His insistence on a uniform policy of tool distribution was a
reasonable one and it was not applied to Ramos Tena in a dis-
criminatory fashion, although Ramos Tena who was sensitive
to such issues, believed that to be so. His reaction to being told
to place his tools in the toolcrib was consistent with his belief
that he was being mistreated, but his belief that he held a spe-
cial position within the company contributed to his attitude of
noncooperation.
First, although I did find the May 15 suspension to be viola-
tive of Section 8(a)(1), the August 23 suspension was lawful as
discussed above. With respect to Respondent supposedly as-
signing him a supervisor who did not know what Tena did, the
evidence fails to support that claim. As noted above, Pedraza
knew his trade well enough and, if he made a mistake or two
regarding some drawings as Tena says, it hardly amounts to
much. Tena claims that as a result of the mistaken drawings, he
had to do the work over again and was not paid for it. He also
claims that his wages were “severely reduced.”
A review of his employee earnings record does not bear out
his testimony. Keeping in mind that welders in general are paid
on piece rate basis, and sometimes on a hourly basis where
their work did not lend itself to piece rate analysis, his pay was
in large part calculated by the amount of work he produced.
Thus, his pay rate fluctuates depending on the speed in which
he is able to produce products. In looking at the period of time
before the May 13 walkout, I observe that during each of the 2-
week pay periods beginning in the first of the year, he earned
between $622 and $854.22 The pay period ending May 19 cov-

22 Payroll period
end date:
Net pay:

December 31,
1995
$617.70
January 14, 1996 137.32
647.56
January 28, 1996 807.28
February 11, 1996 854.24
February 23, 1996 745.40
March 10, 1996 700.67
March 24, 1996 760.31
ered the period of time where Tena was off work because of the
May 13 walkout as well as his suspension which followed.
Nonetheless, for that pay period he received checks for $431.73
and another for $114.45 (a total of $646.18), actually exceeding
the paycheck for the previous pay period ($506.75). Thereafter
his paychecks remained in the same range as before the walk-
out. See the figures as set forth below.23 The only reduction
seems to be the pay period ending August 25, during which he
had the one day suspension found to be lawful. Even so, that
pay period slightly exceeded the pay period before it.
On September 1, Efrain Ramos Tena took his annual vaca-
tion, not returning to the facility until September 16. He says
that about 3:30 that afternoon, he arrived at the plant in order to
talk to John Kolkka. He found John Kolkka in the front office
where Stephanie Kolkka’s desk and bookkeeper Sherry Jones’
office is located. Finding John Kolkka there, Efrain Ramos
Tena told him that he wanted to quit the Company. When
Kolkka asked why, he responded, “Because I don’t want any
more problem [sic] with the company, and I don’t want any
more problem [sic] with the union. So I want to take a break. I
don’t want any more problems with anybody. I want to leave
because I have a lot of problems.”
Efrain Ramos Tena went on to say that Kolkka told him that
if he wanted to work the second (evening) shift or work part-
time, that was fine with him, but Efrain Ramos Tena replied
that he didn’t want any more problems with the Company and
he didn’t want to work with Kolkka any more.
On cross-examination, Efrain Ramos Tena repeated the same
reasons. He never asserted that his pay had been decreased,
undoubtedly because it had not been.
In the circumstances, I am unable to agree with the General
Counsel’s contentions that Efrain Ramos Tena was construc-
tively discharged. While it is true that he has suffered one in-
stance of an unlawful suspension in May, the remainder of the
General Counsel’s claims of maltreatment are not supported by
the evidence. Efrain Ramos Tena clearly over reacted to the
claims that he was being supervised by incompetent supervi-
sors, his suspension for insubordination was justified, and his
pay rate and earnings have never been affected in any signifi-
cant manner. To the contrary, if anything, his pay rate and his
take-home pay increased during the period of his supposed
maltreatment.

April 7, 1996 834.86
April 21, 1996 723.02
May 5, 1996 506.75

23 Payroll period
end date:
Net pay:

June 2, 1996 $ 754.35
91.55
June 16, 1996 874.37
June 30, 1996 917.20
July 14, 1996 899.78
July 28, 1996 1225.66
August 11, 1996 683.52
August 25, 1996 698.43

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
Crystal Princeton Refining Co., 222 NLRB 1068 (1976), es-
tablished the Board’s current rule with respect to the burden of
evidence required to establish a unlawful constructive dis-
charge. It stated at 1069:

First, the burden imposed upon the employee must
cause, and be intended to cause, a change in his working
conditions so difficult or unpleasant as to force him to re-
sign. Second, it must be shown that those burdens were
imposed because of the employee’s union activities.

Here, the General Counsel has not shown that there was
really any change in Efrain Ramos Tena’s working conditions.
It may be true that Efrain Ramos Tena perceived there to be
such changes, but objectively the only truly negative thing that
occurred which was connected to any kind of unlawful activity
on the part of the Company, was the May 15 suspension.
Moreover, even with the two suspensions, the one of May 15
and the one of August 23, Tena was able to maintain the same
level of earnings, despite being on suspension for 3 days in
May and 1 day in August. His claim that he was supervised by
individuals who did not understand his work is virtually non-
sense. Moreover, the fact that his pay remained at the same
rate or higher after the union organizing clearly suggests that he
had sufficient access to his tools even with the toolcrib policy
to perform his piecework in a timely, efficient manner. Cer-
tainly, the evidence does not show a change in his working
conditions which would be difficult or unpleasant. Respondent
imposed nothing upon him which was so difficult or unpleasant
as to force him to resign. It is therefore unnecessary to even
reach the second Crystal Princeton requirement that the bur-
dens were imposed because of his union activities. Since no
burdens were actually imposed upon him that issue is moot.
The General Counsel has failed to meet the requirements of
Crystal Princeton Refining Co. and Efrain Ramos Tena’s con-
structive discharge allegation will be dismissed.
The Alleged Blacklisting
The General Counsel next alleges that Respondent black-
listed Efrain Ramos Tena from working with other employers
because of the reference it gave him.24 First, it should be ob-
served that when Efrain Ramos Tena resigned, he agreed that
John Kolkka told him to use his name as a reference and that he
would give him a good reference. According to the General
Counsel, the opposite occurred.
On December 8, almost 3 months after Efrain Ramos Tena
resigned from Respondent, he filed a job application with the
Cagwin and Dorward Garden Center, a landscaping contractor
with an office in Daly City. Shortly after interviewing Ramos
Tena, Cagwin and Dorward account manager, Mario Egan, was
directed by one of his superiors to follow up on Ramos Tena’s
job application by making an inquiry with Respondent who had
been listed as a job reference. Egan called the number and

24 Par. 7(f) of the complaint, as amended, asserts that Respondent
sought to blacklist Ramos Tena by giving a prospective employer an
unfavorable reference about him. In this regard, the General Counsel
has asserted on the record that it does not seek a backpay remedy for
that act, if it occurred. Thus, the only remedy sought here is a cease-
and-desist order.
spoke to a woman, whose name he could not remember. He
remembers that she told him that Efrain Ramos Tena was a
good employee, was punctual and was a very intelligent person.
He said that she mentioned that he also tried to start a union. In
his pretrial affidavit, taken about 3 weeks before he testified,
Egan said, “She also said something to the effect that the only
problem we had with him was ‘because he tried to start a un-
ion,’ but I don’t recall the exact words that she used.” Egan
went on to say in his affidavit that he “didn’t care about that.”
He reconfirmed his lack of concern about Ramos Tena’s union
organizing in his live testimony.
Stephanie Kolkka says that she was the individual to whom
Egan spoke. Her testimony on the conversation in its entirety is
as follows:

Q. (By Mr. Thierman): What, as best as you can re-
call, did you say to Mario [Egan] and Mario say to you
about Mr. Tena?
A. Well, he said that he was calling to—you know,
that Efrain had applied for a job with the company that
Mario worked for, and I didn’t catch the company’s name,
so I wasn’t aware of the nature of the work. And he asked
if I would give Efrain a reference, and I said yes. And I
told him that I thought Efrain was very smart and edu-
cated, that he was not prompt, but I felt that he was re-
sponsible, and he had always done a good job for us.
Q. What else—did Mario ask you any questions or did
you—Mario say anything?
A. He asked me why he was no longer working for us,
and I said that the reason Efrain had given is he had prob-
lems with us and problems with the union, you know, our
company was in the middle of a—had been in a union
campaign, and Efrain felt he had problems with the union.

It appears, from an amalgamation of their testimony, that
Stephanie Kolkka’s and Egan’s recollections are not greatly
different. Indeed, given the fact that Efrain Ramos Tena had in
almost haec verba said to John Kolkka what Stephanie told
Egan, it is likely that she repeated fairly accurately what Efrain
Ramos Tena had told him when he quit: [“. . .Because I don’t
want any more problem [sic] with the company, and I don’t
want any more problem [sic] with the union. So I want to take
a break. I don’t want any more problems with anybody. I want
to leave because I have a lot of problems.”]
Accordingly, it does not appear that Respondent was black-
listing Efrain Ramos Tena in the slightest. Since he had quit,
rather than having been fired, Stephanie Kolkka had no real
concern with respect to supplying the reasons Ramos Tena
himself used at the time of the quit. That was in direct response
to Egan’s request for information on point.
Based on the foregoing, I cannot conclude that Respondent in
any way attempted to blacklist Efrain Ramos Tena. There is no
doubt in my mind that Egan, charged with pursuing the reference,
would not have asked about the reasons why the applicant had
quit his previous employment. Furthermore, it seems unlikely
that Stephanie Kolkka would have volunteered those reasons
immediately after giving Egan a reasonably honest and positive
assessment of Ramos Tena’s workmanship and his work habits.
Egan reported that she told him Ramos Tena had been a good
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 869
worker and that he was intelligent. It appears most likely that the
discussion regarding Ramos Tena’s union activity was solely
an afterthought, triggered by Egan’s own question, a perfectly
natural one, regarding why the employee had quit.
Accordingly, the evidence does not support the allegation.25
5. Saturday work
The General Counsel asserts that sometime in June (date un-
known), Respondent changed its policy from giving employees
optional work on Saturday to mandatory work on Saturday. In
furtherance of that change, Respondent supposedly gave Fran-
cisco Barajas a disciplinary warning in June for not working on
Saturday. Respondent denies that it changed its policies in
June. Furthermore, it denies that it gave Francisco Barajas a
disciplinary warning in June, agreeing that it did give him one
in September for a breach of the policy. It also asserts that the
policy had been modified in the latter part of 1995 after Butters
became the manager and long before the employees began en-
gaging in any protected conduct.
Francisco Barajas testified, somewhat in response to a lead-
ing question, that he had a discussion with his supervisor, paint
shop supervisor Jessie Souza on a Friday in June. He says
Souza told him and others that there was work on Saturday for
those who wanted to come in but it was not mandatory. Fran-
cisco Barajas says he told Souza that he would not be able to
come. The following Monday he received a warning for not
appearing for work on Saturday. He claims he asked Souza
why he was getting the warning “if I had [not] agreed to come
on Saturday.” According to Francisco Barajas, Souza replied
that it was now mandatory to work on Saturdays.
He continued: “At that moment, he (Souza) spoke to me
about the union. I didn’t speak to him about the union. . . . he
told me that he had been in a union previously. He told me that
they had met to organize some workers, and that he had been
fired. . . . He told me that the union was not going to do any-
thing, that the union was going to take our money away. That
the union was of no use. . . .” In addition, Francisco Barajas
asserts that at the time of the conversation, he was wearing
either a union button or union hat or both.
From the context, as described by Francisco Barajas, it is
clear that he is asserting that this conversation occurred shortly
after the election petition had been filed.
The only evidence, aside from Francisco Barajas’ testimony,
that a warning was ever levied against him by Souza occurred
on September 21, 6 weeks after the election was over. When

25 Efrain Ramos Tena asserted that he had been denied the job at
Cagwin and Dorward because of the bad reference he had been given,
claiming that a job offer had been made and subsequently rescinded.
But Egan testified that he never spoke directly to Ramos Tena after the
initial interview. I do observe that attached to Efrain Ramos Tena’s
application form is a motor vehicle report issued by the California State
Department of Motor Vehicles which notes four license suspensions in
4 years for four accidents. A handwritten note on the form notes that
the applicant had “poor driving record, no previous experience.” Since
the job would have required driving a company vehicle to a landscap-
ing location, his driving record undoubtedly disqualified him from
employment with that firm. I conclude that Cagwin and Dorward never
made an offer of employment to Ramos Tena, contrary to his testi-
mony. It follows that no rescission occurred either.
Barajas was confronted with that warning, he became confused
and could not explain that date. Yet, his personnel record
shows no other warnings given, whether in June or any other
time. The warning itself refers to a failure to appear or call on
an appointed work schedule. The General Counsel and the
Union argue that this is not specific enough to relate to a refusal
to perform Saturday work, but I observe that September 21,
1996, was a Saturday and that Souza signed it on Monday,
September 23. Accordingly, I conclude that the Souza warning
of September 23 specifically relates Francisco Barajas’ refusal
to work on Saturday.
That raises the immediate question of whether or not Bara-
jas’ testimony is credible at all. Souza would have no reason to
engage in an antiunion polemic in a preelection posture in late
September. The election had been over for 6 weeks and Souza
would not need to persuade or coerce anyone at that stage.
It is apparent to me that Francisco Barajas’ recollection here
is poor. Indeed, in other testimony he was unable to recite
dates with any accuracy. At one point, he guessed that the
May 13 walkout occurred on May 25 or 26 even though he had
been led to May 13 in a preliminary question.
Frankly, as his surrounding detail relating to the discussion
regarding the warning is objectively incorrect, his testimony
regarding the discussion concerning the warning is highly sus-
pect.
This can be contrasted with Butters’ testimony regarding the
Saturday work policy. He says the Company has a policy of
asking for volunteers if Saturday work is needed, and once an
employee agrees to work on Saturday, he is expected to work
that day. If they don’t appear for work then obviously work
doesn’t get performed. In that situation, he says, the company
will take disciplinary action. Butters testified that Barajas was
given a disciplinary warning by his foreman, Souza, because he
had volunteered for work on a Saturday in September and had
failed to appear.
The General Counsel argues nonetheless that the warning
was a departure from past procedures. That argument is not
supported by any evidence. There is only Francisco Barajas’
testimony that Saturday work had been voluntary, but that does
not address the question of what happens when someone volun-
teers for Saturday work yet fails to appear. Furthermore, there
is no showing that the policy as articulated by Butters was not
well ensconced by the end of 1995 or even earlier. Thus, the
General Counsel has not shown that the policy was a change at
all. It has failed utterly to demonstrate what the policy was
prior to the alleged change. In any event, it is relatively com-
mon sense that an employer has the right to rely upon an em-
ployee who says that he is going to appear for work but without
notice fails to do so. Frankly, that is nothing more than an un-
excused absence. It should be no surprise when such an ab-
sence draws some sort of discipline. Here the discipline was
reasonable, a simple warning. This allegation should be dis-
missed.
6. The alleged “wage” reduction
The complaint originally contained two allegations regarding
reduced compensation. The first, paragraph 25(a) which had
alleged that in June Respondent reduced the piecework rate,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
was withdrawn on the record on May 7, 1997. The second,
paragraph 25(d), as amended, asserts: “On unknown dates after
August 9, 1996, Respondent decreased wages on the piecework
rate of compensation it paid its employees.” That conduct is
alleged to have violated both Section 8(a)(3) as a reprisal for
the employees having chosen union representation and the Au-
gust 9 election and is also alleged to be a violation of Section
8(a)(5) as a unilateral change, since the Union was ultimately
certified as the 9(a) representative. The paragraph itself is un-
helpful and to some extent misleading. It refers to the entire
staff, but in brief the General Counsel has picked and chosen
specific individuals whom it contends were the principal union
activists. When Respondent provided mathematical averages
of the staff which showed that the average wage actually in-
creased after the election, the General Counsel sought to rebut
that figure by focusing on the pay period immediately follow-
ing the election. That, of course, is a departure from the com-
plaint’s allegation and is statistically unreliable. Moreover, it
appears that the General Counsel was taken in by the incorrect
oral testimony of at least one of its witnesses, Francisco Bara-
jas, whose credibility has been discussed above. In his testi-
mony, he contended that prior to the election, his average pay
was $700 per pay period and that after the election, it fell to
about $600. It will be recalled that Francisco Barajas was a
painter who was paid on piece rate basis. His entire earnings
are set forth in two different places, one of which is Respon-
dent’s Exhibit 30(a)–(z), covering the entire year of 1996. A
perusal of that exhibit, which includes every piecework report
which he filed that year, demonstrates several things. The first
is that his preelection paychecks averaged slightly less than
$640 per pay period. Second, it is true that his post-election
paychecks average slightly less than $620 per pay period. In
this regard, however, it should also be observed that before the
election, his paychecks ranged from about $400 to a high of
$950. After the election, they ranged from about $440 to $871.
The normal fluctuation is quite remarkable. A further perusal
of that exhibit demonstrates that the paycheck variance is ex-
plainable by the amount of pieces which the employee chooses
to produce in a given pay period (and to some extent on the
number of days he is able to work during a pay period; yet an-
other variable is the value of the job which is being performed).
Occasionally, he was assigned a large number of pieces, but the
value was small. Indeed, the value of pieces ranged from $9.50
to as high as $352. Curiously, however, despite the fact that the
postelection paychecks averaged $20 less than the preelection
paychecks, the check covering the first full pay period after the
election was for $834, certainly not evidence of an immediate
negative response to the election’s outcome.
In its brief, the General Counsel has taken a statistically in-
significant period of time, and drawn an average and compared
them. Furthermore, it calls the figure “hourly piecework” rates,
a nonexistent term. Individuals employed as welders or finish-
ers (painters) were paid on a piecework basis during this period,
unless they were assigned to a specific job which carried an
hourly rate. In any event, the General Counsel has chosen to
compare May 20 through August 11 with August 12 through
September 8. The first period covers six pay periods while the
second covers three. Given the fact that there are a large num-
ber of variables which can affect a piece rate employee’s pro-
duction, in my opinion the most valid method of comparison is
to take longer periods of time for comparison purposes. These
variables include the number of days in a pay period, the num-
ber of days the employee worked during a pay period, the na-
ture and complexity of the pieces assigned to him, and the
speed at which an individual employee chooses to work. In this
regard, again looking at Francisco Barajas, Respondent pre-
pared two exhibits covering the entire calendar year 1996. The
first, Respondent’s Exhibit 32, covers his annual piecework. It
shows that his piecework before the election averaged $626 per
pay period whereas after the election, it averaged $644, an in-
crease of $18 per pay period. Respondent’s Exhibit 33, which
took into account some hourly earnings, continues to show a
preelection average of $626 whereas the postelection average
increased to $652. The latter is an increase of $26 more per
pay period.
Standing alone, the Francisco Barajas figures are not particu-
larly significant to proving or disproving the General Counsel’s
allegation. For that reason I have undertaken an independent
review of the annual payroll sheets which were presented in
evidence covering 18 other individuals. All of these were per-
sons who performed piecework of one sort or another for Re-
spondent. All of them also to some extent were paid for other
work on an hourly basis. One of the variables which the Gen-
eral Counsel does not want to look at is the amount of hourly
pay and its effect on the total take-home pay of each person.
Instead, the General Counsel wants to focus solely on the
piecework aspect. The piecework as I have already noted, is
subject to a large number of variables. A review of those
documents leads me to the conclusion that focusing solely on
the piece rate issue is misleading. What is really important, it
seems to me, is the total amount of money an individual takes
home each pay period. For that reason, I have carefully re-
viewed the remaining paysheets to determine what the average
pay per pay period was of each of the individuals whose pay-
sheets suggest a statistically valid comparison.26 There are
some individuals who for various reasons do not present valid
preelection and postelection comparisons. They are set forth in
the footnote below.27 A review of the remaining 15 individuals
shows that that 12 had an increase in take home pay in the pe-
riod after the election, while 3 suffered a decrease. Two of the

26 In performing the averages, I excluded both vacation pay and the
overtime makeup, where applicable, which had been ordered by the State
Labor Commissioner in June. I also excluded where appropriate, pay
periods which had not been worked or which were significantly low due
to the individual’s not having worked an entire pay period, deeming those
weeks to be unrepresentative of the individual’s work history.
27 The individuals are: Raul Alaniz, who shows a postelection aver-
age increase in his paycheck of $383 due to the fact that he only
worked for four pay periods after the election and two of those con-
tained abnormally high earnings; his figures are statistically invalid.
Jesus Cortez, who only worked three pay periods after the election, one
of which was abnormally low. Alexander Prado, who shows a $306
average increase after the election, but who had primarily been an
hourly worker until he began performing piecework in September, thus
dramatically improving his average. He is not statistically reliable
either. Efrain Ramos Tena, discussed above, who had only one full pay
period after the election.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 871
twelve are Sergio Barajas, whose average paycheck increased
by $200, and Octavio Barajas, whose average paycheck in-
creased by $154. The only Barajas brother who suffered a
decrease was Roberto, who fell by $159. There is no clear
explanation for that. I do observe that the lowest paycheck that
he had in the postelection period was $386 which was only $14
lower than his lowest preelection paycheck.
The other two who suffered postelection paycheck average
decreases were Jorge Rocabino, whose postelection average fell
by $53 and Jorge Garcia, who fell by $42. Of the 12 who had
average pay increases, Sergio Barajas’ $200 was the leader; the
lowest was Luis Vega, who paycheck averaged only $2 more
than his preelection paychecks. It was not uncommon to see
average increases of more than $150: Octavio Barajas was
$154, Jose Bracamontes $154, Victor Mendoza $162, and Jose
A. Tena $171.
Thus, the total take-home pay figures do not support the
General Counsel’s contention that the pay was somehow re-
duced after the election. The evidence shows to the contrary.
Moreover, the General Counsel’s figures as noted before, focus
on the pay period immediately following the election and even
there the facts are not conclusive. Some are up, some are down
and it seems to me those variations are typical of what one
would expect where piecework performance was a significant
part of an individual’s earnings. Accordingly, the allegation
that Respondent somehow reduced the paychecks, through the
manipulation of the piece rate work, should be dismissed. It
just didn’t happen.
7. The so-called arrest of union organizer Jay Bradshaw
During the course of the Union’s effort to organize Respon-
dent, it had conducted weekly demonstrations in front of Re-
spondent’s facility, as well as engaging in product boycott ac-
tivity at retail outlets which sold Respondent’s products. The
demonstrations were sometimes vociferous and disruptive of
the public peace. As a result, Respondent was able to obtain
from the State court system a restraining order which limited
the locations and numbers of individuals who could participate
in the picketing/patrolling of the areas involved. One of those
areas was Respondent’s plant itself, located at the corner of
Kaynyne and Bay Streets in Redwood City. The restraining
order in effect there barred the Union from approaching within
20 feet of each of the two entry doors located on each of those
streets. Thus, the Union was able to picket by patrolling the
sidewalk in a circular fashion between the corner and each of
the two doors, so long as they stayed 20 feet away from the
doorways. At least one of the doorways was recessed from the
sidewalk by a small alcove. That doorway, which opened to
the outside, was often propped open during warm weather. On
the interior of the door, Respondent had affixed some material
which, although protected by Section 8(c) of the Act, was none-
theless offensive to the Union. The General Counsel character-
izes it as “derogatory” but there is no direct evidence regarding
what the poster actually said. It may have been the “unionius
goonis” flyer and it may have been a newspaper article describ-
ing union corruption, or both.
In a warm afternoon on November 14, the Union conducted
a demonstration at the corner. As usual, it was vociferous, with
Bradshaw leading chants with a bullhorn.
At some point, apparently midway during the demonstration,
the poster, visible on the inside of the doorway which had been
propped open, was torn and fell to the ground. The facts re-
garding how that poster came to be torn and thrown down, are
in significant dispute. Alicia Williamson, John Kolkka’s assis-
tant, asserts that from inside the building she observed Brad-
shaw enter the doorway and tear the poster down. She is cor-
roborated in part by a custodian, John Whipple. Bradshaw
denies the incident in its entirety and is corroborated by his
fellow professional organizer, Patrick Dennis. Williamson
called the police, who responded with a squad car. Two offi-
cers investigated the circumstances, first speaking to William-
son and then to Bradshaw. Eventually, based upon William-
son’s assertion that she had observed Bradshaw enter the door-
way (thereby breaching the restraining order), entering the al-
cove (thereby perhaps committing a trespass) and tearing the
poster (thereby possibly committing an act of vandalism), asked
Williamson if she wanted to make a citizen’s arrest. Under
police procedures, since all of these acts were misdemeanors
which the officers had not observed, they could only rely upon
witnesses who had seen the conduct. Williamson asserted that
she wanted to do so, and a citizen’s arrest was effected. The
entire scene occurred down the block near where Bradshaw had
parked his car, and was some distance from any of the main
entrances or from some of the doorways which were used by
employees in the course of their duties. No demonstrators or
employees were within earshot of the conversation. The offi-
cers did not take Bradshaw into custody, but after Williamson
returned to the building simply wrote him a citation, similar to
a traffic citation (indeed it was the same form), requiring him to
promise to appear in a local municipal court at a future date.
After Bradshaw signed the promise to appear, the officers left.
The demonstration had ended several minutes earlier and most
had departed while Bradshaw and the officers were speaking.
The General Counsel asserts that there were two Kolkka em-
ployees who may have observed what was going on from one
of the doorways, but there is no direct evidence that any em-
ployee actually knew what was transpiring. No employee testi-
fied on the point.
Eventually, the San Mateo County District Attorney’s Office
determined that it was not a case which it wished to pursue and
dismissed the matter.
The General Counsel asserts that this conduct amounted to
an 8(a)(1) violation as it occurred in the presence of employee
witnesses. The problem I have with the theory is that hardly
anyone knew what was happening, although Bradshaw did
inform Dennis and Dennis waited around to see what would
happen. The employees who supposedly could see from the
doorway have never been identified and the evidence that they
were even there seems to be speculative at best. There is no
proof that even the demonstrators (who were probably statutory
employees of someone else), knew what was transpiring be-
tween Williamson, Bradshaw, and the officers.
I observe that the police officers acted on what would appear
to be a reasonable view of the facts. It may well be that Brad-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
shaw and Dennis are correct that Bradshaw did not engage in
the activity which Williamson and Whipple say they saw. Yet,
calling the police in that situation is reasonable as a breach of
the peace had appeared to them to have occurred. The General
Counsel asserts that neither Williamson nor Whipple are credi-
ble individuals, but whether they are to be believed in the final
analysis is beside the point.28 Williamson appears to have acted
reasonably and there seems to be some evidence to support her
contention. That it did not result in a criminal prosecution is of
little significance in the circumstances. It cannot be said that
Williamson’s decision to effect a citizen’s arrest was without
support or fabricated.
However, the principal reason for dismissing this matter is
not whether either of Williamson’s or Bradshaw’s opposing
versions are to be believed, but because Bradshaw was not
taken into custody or even restrained. An employee, if there
was one, who observed the entire scene would only have been
seen the police officer speaking to Bradshaw in a calm, reason-
able way. One may even have seen the officer write the cita-
tion or hand it to Bradshaw. As it was a traffic style citation, an
employee might well conclude the police officer’s handing
Bradshaw a citation had nothing to do with his union activity.
From that distance it might have appeared as benign as a park-
ing ticket, a warning or some other kind of note.
Accordingly, as the General Counsel has not shown any
probable impact upon the employees in this incident, it must be
dismissed. There simply has not been any proof of interference
with, restraint or coercion of employees in the exercise of Sec-
tion 7 rights. I recommend that this matter be dismissed. W. T.
Grant Co., 209 NLRB 244 (1974); Hempstead Motor Hotel,
270 NLRB 121, 123 (1984).
8. Paycheck distribution
Prior to the August 9 election, Respondent had released pay-
checks on Friday afternoons. Those checks became available
to the night-shift employees at 2 p.m., allowing them to come
in prior to their 4:30 p.m. start time and permitting them to
negotiate their checks with a financial institution. It is uncon-
troverted that at some point after the election, although the date
is not clear, Respondent began issuing the checks to everyone
at 4:30 p.m., the time of the shift change. This created a hard-
ship for the night-shift employees who were then unable to
leave to negotiate their checks.
The General Counsel asserts that this change is both an ani-
mus-based violation of Section 8(a)(1) and a unilateral change
in violation of Section 8(a)(5), as the Union was subsequently
certified as a result of the election.
Respondent does not contest the facts, but asserts that the
change was simply done as a matter of convenience to the busi-
ness office.
The General Counsel has not presented any evidence that the
change was in retaliation for the employees having selected the
Union in the election. Indeed, it appears to me that from Re-
spondent’s point of view, the election was still in doubt as the
objections and challenges had not yet been resolved. It seems

28 Whipple’s affidavit describing the incident was quite belated, be-
ing filed with the district attorney’s office after an initial dismissal.
unlikely therefore that the change was in retaliation for the
employees selecting the Union. I shall therefore dismiss that
portion of the allegation. However, as the Union was eventu-
ally certified, based upon a majority of the voters having cho-
sen the Union, and as that choice occurred on the election date,
the majority status of the Union is retroactive to that day. Mike
O’Connor Chevrolet-Buick-G.M.C., 209 NLRB 201 (1974),
enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). The
Board has long held that an employer makes unilateral changes
after an election at his own risk. Accordingly, I find that Re-
spondent did violate Section 8(a)(5) of the Act when it changed
the release date. It should have given the Union notice and
bargained with it over the matter before finalizing the change.
9. Demands for information
After the Board issued its decision of December 16 overrul-
ing the objections and directing that challenged ballots be
counted, the Regional Office, on December 31 counted the
challenged ballots and issued a revised tally showing that the
Union had won the election. The certification of representative
followed on January 7, 1997, but even before it issued, the
Union on January 3 sent Respondent a letter requesting that
Respondent provide it with certain information. That letter first
requested information regarding the layoffs of four of the five
Barajas brothers which had occurred on December 30, includ-
ing correspondence between the Company and the Social Secu-
rity Administration and notes regarding the discussions which
the Company had had with officials of the Social Security Ad-
ministration. Second, it requested information fully aimed at
preparing to negotiate a collective-bargaining contract. This
included any plans the company may have had regarding sub-
contracting work, a copy of the company policy handbook, a
list of employees, including their wage rates and job classifica-
tions, their dates of hire and the benefits which they currently
received as well as other policies relating to wages, hours, and
terms and conditions of employment.
Subsequently, Bradshaw, on two occasions, telephoned Re-
spondent but as soon as he identified himself, whoever he was
speaking to hung up the phone. This resulted in a second letter
being sent on January 27 repeating the request for the same
information. Respondent never replied to either letter.
Clearly the union is entitled to all the materials relating to
preparing for collective bargaining and the denial of that infor-
mation is a clear violation of Section 8(a)(5). Adair Standish
Corp., 283 NLRB 668 (1978); Interstate Food Processing, 263
NLRB 303 (1988); American Commercial Lines, 291 NLRB
1066 (1988). A remedial order is therefore required in this
regard.
The same cannot be said, however, for the demand for in-
formation regarding the discharge of the Barajas brothers. I
shall deal with the actual terminations below but it should be
observed that both of the letters which demanded information
about those discharges occurred after the filing of the unfair
labor practice charge in Case 20–CA–27606, which was filed
on December 31, 1 day after their discharge. It is clear to me
that the demand for information here was simply designed as a
discovery tactic for either proving to the Regional Director that
the charges had merit or proving to an administrative law judge
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 873
that the discharges were unlawful. Requests for information in
that circumstance are not honored by the Board as they are
simply being used as a substitute for discovery. See WXON-
TV, 289 NLRB 615, 617–618 (1988), and Union-Tribune Pub-
lishing Co., 307 NLRB 25, 26 (1992). That aspect of the alle-
gation will be dismissed.
10. Moises Estrada
Another alleged violation is the shift change imposed upon
Moises Estrada. This specific allegation was added during the
course of the hearing based on Case 20–CA–27756–1 which I
consolidated with the earlier cases by order of June 20, 1997. It
asserts that Respondent violated Section 8(a)(1), (3), and (5) by
its treatment of night welder Moises Estrada. It asserts that
Estrada is a significant union activist and that the transfers in
question were an unlawful response to his union activism. The
complaint also asserts that in changing his shifts, Respondent
violated Section 8(a)(5) of the Act because it did not notify the
Union in advance, thereby failing to give it an opportunity to
bargain over the question. Specifically, the complaint alleges
that on April 7, 1997, Respondent transferred Estrada from the
night shift to the day shift. It then asserts that a month later
Respondent violated the Act again when it transferred him back
to his regular duties on the night shift.
Respondent admits the salient facts but denies that there was
either discriminatory motive or a duty to inform the Union
about the change. Instead it asserts that Estrada was merely
transferred to the day shift for 30 days “training;” then upon the
end of that 30-day period, he was transferred back. Respondent
is of the view that it has the right to bring employees from the
night shift to the day shift for the purpose of ensuring that those
employees know the products which the Company manufac-
tures and to give them an opportunity to improve their skills.
Those skills primarily relate to assuring Respondent that the
employees on the night shift have the ability to fabricate the
metal parts for various types of tables and beds. Furthermore, it
asserts that Estrada had been given about 90 days notice of its
intentions.
The facts demonstrate that Estrada had worked for Respon-
dent since May 1994 and that he had consistently worked only
the night shift. Although it is clear that Estrada had engaged in
the same union activity as everyone else who was an activist,
i.e., wearing buttons, participating in demonstrations and at-
tending the Union’s coffee breaks, by early 1997 he was no
longer wearing the button very frequently. Between late De-
cember and March 24, 1997 organizer Luis Solares had not
visited the plant. However, on March 24, about a week before
the hearing in this matter began, Solares once again came to the
plant during the shift change and spoke to five or six employ-
ees, including Estrada. Solares handed out additional union
buttons and Estrada put one on his uniform and wore it that
night. Some of the others did too, but Estrada says they even-
tually took them off “for fear of reprisal.” It is unclear what
Estrada meant by that testimony, as he did not testify that any
supervisor spoke to him or anyone else about the buttons that
night. I conclude that he believes he got some sort of “dirty
look” from Night-Shift Supervisor Flores. Yet, he would not
testify to it.
He says later that evening Flores advised him that he was go-
ing to change Estrada’s shift. Estrada asked Flores if it was
over the button, but Flores simply replied, “No, it was an order
from John Butters,” and that several of the welders would be
changed to the morning shift. Estrada concedes that Flores told
him to report for work on April 7 at 8: a.m. for that shift. On
the following day, Estrada reported that directive to Solares in
the parking area. He claims that Butters, Pedraza, and
Frederico Moreno, all supervisors, observed him as he reported
this to Solares. It is clear, however, that if they did observe
Estrada, they could not hear what he was saying to Solares.
Later, sometime during the same week, he had a conversa-
tion with Flores and Pedraza in Butters’ office. He says he
asked why they had chosen him instead of any of the other four
or five night welders. He says they told him his “turn had come
up” and they were going to change some other people like Peña
and Cuevas. They simply told him he was the first. He again
asked if it had something to do with the button but they said it
did not.
Estrada says that he then told Flores and Pedraza that he had
a day job, working part time at a café and observed that if he
had to work the day shift, it would interfere with the café job.
He says that several days later, he showed them a letter he had
obtained from his daytime employer, but Flores “just laughed”
and took it to Butters. Flores came back a few minutes later to
tell Estrada that he still needed to report at 8 a.m. on April 7.
Curiously, Estrada could not remember the name of that
café, saying only that it was located in Mountain View.
On April 7, 1997, Estrada did not report to work at 8 a.m. as
directed saying union organizer Solares had told him not to.
Instead, he came in at his usual starting time of 4:30 p.m. Flo-
res told Estrada that he could not report to work that night but
to report to work at 8 a.m. Tuesday morning, April 8. The fol-
lowing morning, he did not report until 9:30 a.m. but then con-
tinued to work the day shift without incident until May 5 when
he returned to the night shift.
Of his experience on the day shift, Estrada claims that
Pedraza did not supervise him and did not train him in any
significant way, but he does concede that he had to perform his
job somewhat differently. He had to prepare his own material
by cutting it, a function which he did not perform at night and
he also had to polish the metal and set up the piece and put it
together. He agreed that on nights, an employee did 100-
percent welding and none of the fabrication work which was
required for daytime work. He also claims that he was paid by
the hour and that the transfer meant “more work and less
money.” The accuracy of that statement is open to question.
He also says that he lost his daytime work at the café due to the
requirement that he work for Respondent during the day. He
says he quit that job.
Estrada also testified that at one point during May (more likely
April) 12 or 13, 1997, while working on the day shift, he had a
conversation with John Butters.29 He says that he was so con-

29 Estrada seemed to be confused about the date of the conversation
with Butters. At one point he testified that it was during the day shift;
at another he said that it was on May 12 or 13 and later he asserted that
he really meant April 12 or 13 because it occurred during the day shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874
cerned about the conversation that he insisted upon an interpreter
who was not connected to management. In any event, he says he
told Butters that he was unhappy with the shift change. He says
Butters replied that he wanted Estrada to learn more so he could
make more money. Estrada said that he responded there were
other people who could do it really well, accused the Company of
lowering the prices on the pieces, and then said that he wasn’t
interested in learning. He told Butters that if he was going to
learn, no matter what, it would require him to do more work but
earn less. He also observed that the Company had fired some
people and he wasn’t interested in learning more. When Estrada
was asked what Butters replied, he did not testify about Butters’
reply, if any; instead, he says he told Butters, “If they wanted to
fire me, go ahead and do it, like they had done with the Bara-
jases.” Estrada says Butters replied that Roberto Barajas had
been fired because his social security number was not in order
and that it was no kind of reprisal.
On May 5, Pedraza told Estrada that his month of training in
the mornings was over and that on the following workday he
could report back to his night shift.
Despite his testimony about the difference in the jobs, Es-
trada claimed that he learned nothing new and to the extent he
needed to ask questions, he asked his coworkers who had been
with the Company for a longer period of time. He does con-
cede that Pedraza assigned him work but says Pedraza did not
“train” him. He claims that Pedraza simply went off and did
other things while he worked alone. And, he says, once he was
back on the night shift, the duties which he performed were the
same as he had always performed, implying that his day-shift
training had not given him any better skills nor was he assigned
to tasks which utilized the skills which he had been exposed to
during the day.
On cross-examination, Estrada was defensive and argumenta-
tive. Among other things he refused to acknowledge that his
training period had actually resulted in a higher pay rather than
lower. During the pay period prior to the transfer, he had earned
only $590 (gross) but during the two pay periods of training on
days, he earned $10 an hour, as he was not expected to be able to
produce at the same rate as the more experienced day-shift cus-
tom welders. The $10 rate meant that he earned $800 (gross) per
pay period. He says the reason the preceding paycheck was so
low was because he had missed a day and it was not for a full 80
hours. Yet the attendance sheet does not support him. Instead, it
shows that he had some tardies and that he had worked a partial
day for personal reasons (March 28), but the record does not
show how many hours he actually did work.
Whatever the reason may have been, it seems unlikely that
the low paycheck for that pay period had much to do with at-
tendance. What is significant is that the $800 pay periods
which followed on the day shift hardly qualifies as an issue of
“more work, less pay” as he had testified to on direct. In addi-
tion, he, like the others, accused Pedraza of not being a quali-
fied welder or trainer.
That assertion sounded hollow to me when I heard it, but
during Respondent’s case, Pedraza’s training log was presented
in evidence. Any review of that log clearly demonstrates that
Pedraza took a great deal of time and oversight with Estrada.
The log is detailed and to the point. While not minute for min-
ute, it certainly appears to be a credible recitation of the as-
signments, the commentary and developmental points. Fur-
thermore, Estrada finally conceded that there was a significant
difference between the custom work in the daytime and the
evening work. He had already agreed that during the day he
was obligated to do his own cutting and polishing, but on cross-
examination he finally agreed that he only performed produc-
tion work at night, using precut parts. It was far more of an
assembly line situation. In those circumstances, he had no
obligation to measure or follow a specific design or plan. Yet,
during the days those were the exact matters upon which he
was trained. Still, in reference to that work, which he seems to
have preferred over day work, he said, “Lots of work and not
too much money.”
Curiously, the General Counsel called Jose Chavez, who is a
day-shift welder with over 12 years’ experience to testify that
Pedraza was not particularly skilled as a welder and therefore,
was not a particularly good training official for Estrada. Yet,
Chavez admits that he was the one who answered Estrada’s
questions and helped when Estrada had problems during that
30-day period. Rather clearly, that testimony supports Respon-
dent’s view that it was only on the day shift where an employee
could receive appropriate training on the custom style pieces.30
Perhaps making a mentor available like Chavez was the best
choice.
Also on cross-examination, Estrada conceded that some of
the work he had learned how to do during the day has, in fact,
been assigned to him at night, specifically, special work with
respect to an Apex table. Furthermore, some of the grinding
training which he practiced during the day is required of him at
night. Finally, he agreed that since the departure of Sergio
Barajas from the night shift in late December, there was only
one individual left on the night shift who was able to do special
orders. His testimony suggests that Respondent wanted to have
at least two individuals on the night shift who could perform
those duties and that the daytime training which he had just
undergone was designed to improve the night shift’s capabili-
ties in that area.
Finally, with respect to his general credibility, cross-
examination demonstrated to my satisfaction that he was less
than forthcoming about the so-called daytime café job which he
says that he was forced to abandon in early April. On cross-
examination, he continued to be unable to remember the name
of the café until Respondent counsel suggested “Starbucks” to
him. Even then, Estrada did not immediately agree that the
café was Starbucks, seeming to be at a loss, despite the fact that
he says that he had worked there on and off for 30 days before
being forced to quit. When Respondent asked him if he had
any paystubs from that company, he said that he had “de-
stroyed” them and that he normally destroys paystubs, includ-

30 It is also true that Chavez does not appear to be particularly im-
pressed with either Pedraza or Butters as individuals who understand
the work. Even if they did not understand it, which I do not find, it
does not follow that assigning an individual to the day shift so that he
can undergo supervision by a manager was done for illegitimate pur-
poses.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 875
ing those issued to him by Respondent. Choosing the word
“destroy” in reference to paystubs is curious indeed.
Taken as a whole, Estrada’s entire testimony, including that
given on direct, regarding his supposedly holding a daytime job
with a café which he was forced to abandon, seems to me to be
a entirely contrived circumstance. It did not ring of honesty
even before I heard Respondent’s testimony on the point. Es-
trada’s lack of probity on that issue casts real doubt on his
claim that he first learned that he was being transferred on
March 24. In Respondent’s case, Butters testified that in early
January he made a decision, based upon his discussion with the
supervisors that two of the night-shift welders, Estrada and
Rodrigo Cuevas needed some additional training. That deci-
sion was relayed to Night Supervisor Fernando Flores. Al-
though Flores did not testify, Butters testified that he received a
rapid memo from Flores dated January 7 in which Flores re-
ported that he had advised Cuevas and Estrada that one of them
might be switched to the day shift. He said he told them they
needed to learn some custom work and besides, the day shift
needed help.
Butters says it was shortly thereafter he chose Estrada over
Cuevas based upon his supervisor’s report that Estrada could
use the training more.
On March 21, Flores wrote another rapid memo to Butters
advising that he had told Estrada that day for the second time
that he would be put on the day shift as of April 7. He also
reported that he had told Estrada that it was for training pur-
poses and that it would only last from 1 to 2 months, depending
on how well he was doing.
On Friday, April 4, according to Pedraza, he had the discus-
sion with Flores and Estrada. During that conversation, he says
Flores reminded Estrada that his next day of work was Monday,
April 7 and that he was to report at 8 a.m. He also heard
Estrada reply that he would not come in because he had a job.
Flores told him that he had not brought proof of such a job,
again observing that the transfer was only for a 1-month train-
ing period. During the course of this conversation, according to
Pedraza, Flores told Estrada that this was the third time that
they had talked about it. In fact, says Pedraza, Flores told
Estrada that he had first advised him of the change some 3
weeks before and that he had been reminding him every Friday,
including April 4.
When, on April 7, Estrada did not come to work, Pedraza,
obviously not knowing what to expect next from Estrada, wrote
a memo detailing the entire conversation which had occurred
on Friday. That memo is consistent with his testimony. It in-
cludes a remark made by Estrada threatening not to show up on
April 7 “because it is not in my contract.”
Based on the foregoing facts, I conclude that the decision to
require Estrada to spend at least 30 days on the day-shift train-
ing and learning to perform custom type work was made as
early as January 1997 and that Estrada was informed of that
possibility shortly thereafter. His claim that he was not in-
formed of the decision until March 24 is rejected. He is simply
not credible on the point and he has displayed a resentful defi-
ance over the decision. It is apparent that his testimony is an
effort to strike back at what he perceives to be an unjust re-
quirement. However, contrary to his perception, the decision
was well grounded in good business principles, and was not
based on antiunion considerations.
Respondent has argued that it makes no sense to train an in-
dividual to perform new tasks in order to punish him for his
union activities. That argument is both persuasive and consis-
tent with the facts as they developed. Accordingly, insofar as
the complaint alleges that Respondent violated Section 8(a)(3)
with respect to the transfer, it should be dismissed. I think it is
fair to say that while there does appear to be some union ani-
mus in the background during the organizing drive, it was never
specifically directed at Estrada and his personal fears about his
union activities are a bit overblown. The only animus which he
could point to was an alleged “dirty look.” The only other sup-
posed evidence of animus with respect to Estrada is the discred-
ited claim that Respondent caused him to lose the daytime job
at the café.
Assuming that a dirty look is sufficient to support a violation
of Section 8(a)(3) (an assumption I do not make), the fact re-
mains that Respondent had made the decision to send him to
the daytime shift for training purposes in January. Moreover, it
gave him ample notice, apparently as much as 3 weeks, with
respect to the April 7 start date, certainly an adequate time for
Estrada to prepare. Moreover, Estrada even provided Respon-
dent with an excuse to discharge him had they wished. He
refused to report to work on April 7, a violation of a direct or-
der and clearly an insubordinate act. Yet, Respondent reacted
rather mildly, and simply told him to report the following day.
It was not even upset over the Tuesday tardy. Clearly Respon-
dent did not have union animus insofar as this particular trans-
fer was concerned.
Alternatively, the General Counsel has claimed that the
transfer of April 7 and the retransfer of May 5, both violate
Section 8(a)(5) as an unlawful unilateral change, for it did not
give the Union notice and an opportunity to bargain. First,
there is evidence not heretofore referred to, that Respondent
had done the same thing in the past. Specifically, it had simi-
larly transferred Roberto Barajas in 1996. Second, even though
the Union held majority status in April 1997 (and even though
Respondent may have been refusing to acknowledge that
status), the decision was not a change which affected the bar-
gaining unit as a whole. It was designed to improve the skills
and capabilities of one individual based upon a rather singular
determination. The Board has long held that a deviation from
policy involving only one individual does not implicate Section
8(a)(5), unless the change affects the unit as a whole. See Mike
O’ Connor Chevrolet-Buick-G.M.C., supra; Brown & Connelly
Inc., 237 NLRB 271, 280 (1978); Haynes-Trane Service
Agency, 259 NLRB 83, 89 (1981).
Shortly after the initial transfer of April 7, the Union de-
manded that Estrada be returned to the night shift. Yet, oddly,
because he was transferred back to the night shift (whether as a
response to the Union’s demand or simply because the training
period was over) the General Counsel alleges the return transfer
also to be a violation of the Act. As the “correction” cures the
first supposed transgression, I fail to see the logic behind the
second allegation. If that logic is designed to attack Respon-
dent’s authority to transfer employees as it sees fit, it is based
upon the mistaken assumption that it was a change from a dif-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876
ferent policy. Yet, the evidence clearly shows that its transfer
of Estrada was consistent with its past practice. Accordingly,
no change ever actually occurred. Thus, for both reasons, the
fact that no change has been demonstrated and even if it had, it
affected only one individual on a temporary basis, no violation
can be made out. Accordingly, the entire complaint in Case
20–CA–27756–1 should be dismissed.
D. The December Separation of Four of the Barajas Brothers
I have discussed above the issues relating to the correction of
social security numbers which occurred in May and June 1996.
It should be recalled that on May 23, the Social Security Ad-
ministration had advised Respondent that 10 percent of its em-
ployees had incorrect social security numbers and, as a result,
Respondent began investigating that problem. It sent letters to
a number of individuals whose social security numbers did not
match the range which the Social Security Administration said
they must. One of those individuals had been Vicente Medina.
Medina had been released in order to give him an opportunity
to correct whatever social security number problem he had. He
had returned with a facially valid card with a correct number
and had been put back to work on in late August 1996. How-
ever, shortly thereafter the Auburn, Washington office of the
Social Security Administration mailed Medina a memo in care
of Respondent in which it stated, “Our record shows that the
social security number you are using doesn’t match our records.
The Federal criminal code provides a penalty of a fine of not
more than $10,000 or imprisonment of not more than 15 years
or both. Please get this taken care of immediately.” This letter
was reviewed by Respondent’s business office personnel, and
Medina was immediately suspended on September 20. Unlike
the earlier suspensions, the Medina suspension did not draw an
unfair labor practice charge. It may have been due to the tim-
ing, occurring in September, or it may have been because Me-
dina was not a union activist or because he had been absent
during the height of the organizational campaign. He also
worked for the sauna side of the Company, although he was in
the bargaining unit.
Respondent remained aware that it needed to continue to
pursue the question, raised by the May SSA letter, concerning
the validity of the social security numbers. It had placed a
lower priority on that concern during the height of the election
campaign as Respondent had decided that NLRB matters re-
quired a higher priority. After Medina was suspended, how-
ever, the social security number question did not immediately
return to the top of the Respondent’s administrative concerns.
Even so, the investigation remained uncompleted.
Sometime in early October, John Kolkka gave the office in-
structions to resume the investigation. Social security and em-
ployment matters relating to IRCA were normally handled by
bookkeeper Sherry Jones, but in this instance, apparently be-
cause it was time consuming, the duties fell to Williamson.
Williamson discovered that checking the social security num-
bers was more difficult than expected. The Social Security
Administration had provided a toll free hotline but she could
only check six numbers per telephone call. She first started
with the top of the alphabet which included Aguilar and the five
Barajas Brothers. When the brothers did not check out she
thought perhaps there might be a problem with the Hispanic
practice of utilizing the mother’s maiden name as a surname
and checked them again. Aguilar’s number had been cleared
the first time and on the second occasion, Octavio Barajas’
number was cleared. At that point she decided to talk to the
local office of the Social Security Administration.
She conferred with the manager of the Redwood City SSA
office, Diana Y. Thomas. Eventually, on December 11 Wil-
liamson sent a list of four names together with their dates of
birth and social security numbers to that SSA office. These
were Francisco Barajas, Moises Barajas, Roberto Barajas, and
Sergio Barajas. She says that she sent their names because they
were the first alphabetically and that these particular employees
“seem to have some anomaly that would bear checking.”
Thomas replied by fax on December 16 stating that she had
received the request for the verification of four employees’ social
security numbers. She went on to say “each of these clients need
to come to Social Security concerning their numbers.”
Simultaneously, on December 16, the Board remanded the
representation case challenged ballots to the Regional Director
for counting. The count was scheduled for December 31.
On December 30, Respondent handed each of the four Bara-
jas brothers a letter which stated the following:

We have been notified by the Social Security Admini-
stration as of 16 December 1996 that the above social se-
curity number that you furnished us with is an invalid
number.
In order for you to continue your employment with this
firm, you must contact the local social security office and
obtain a written verification of your valid social security
number (emphasis in original).

On the following day the Regional Office of the Board com-
pleted counting the ballots and issued a revised tally showing
the Union to have obtained majority status.
On January 14, 1997, Respondent, through Butters, wrote
each of the four saying:

On 30 December 1996 we requested you to contact the
Social Security Administration to verify your eligibility to
work at Kolkka Tables. Since that date you have not satis-
fied your obligation in this regard. Therefore, we can no
longer consider you an employee of our company. If your
current status changes, please do not hesitate to contact us.

On December 31, 1996, the Union filed the unfair labor
practice charge alleging that the Barajas Brothers had been
discharged because of their union activities. The Regional
Office investigated that matter and determined that the facts
warranted the issuance of a complaint. Respondent thereupon
ceased investigating the validity of the social security numbers
of its remaining employees.
There are a number of concerns here which are at cross cur-
rent. These include the prima facie case which the General Coun-
sel has clearly made out, the confluence of NLRA and
SSA/IRCA concerns as well as simple credibility questions re-
garding Respondent’s denial that it instituted social security
number checks because of employee union activity or that it
specifically singled out the Barajas brothers for special treatment.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 877
First, it is clear that the General Counsel has indeed made
out a prima facie case that Respondent separated Francisco
Barajas, Moises Barajas, Roberto Barajas, and Sergio Barajas
from employment because of their union activist status. There
is no doubt of their union activity, that Respondent was aware
of it and had committed sufficient acts to warrant the conclu-
sion that it harbors union animus. However, the principal ques-
tion here is whether or not under the Wright Line doctrine,31
Respondent has offered evidence which rebuts that prima facie
case and demonstrates that it would have proceeded as it did
even without antiunion considerations. In my view, Respon-
dent has succeeded in rebutting the prima facie case.
The General Counsel does not seem to understand the sig-
nificance and importance of the statute relating to the determi-
nation of eligibility for employment in the United States. In its
brief, it passes off the significance of social security numbers
and cards as an unnecessary document. In this regard it ob-
serves that the I-9 form required by the Immigration and Natu-
ralization Service under IRCA does not require the use of a
social security card. That document, according to the General
Counsel, only lists the social security card as one of the op-
tional documents which an applicant for employment may pre-
sent. That significantly misstates reality.
A review of the I-9 form demonstrates the point. An em-
ployee is deemed eligible for employment under IRCA when he
or she presents either a list A document or two documents from
lists B and C. List A documents are not of concern here but are
a U.S. passport, certificate of U.S. citizenship, certificate of
naturalization, unexpired foreign passport with attached em-
ployment authorization or alien registration card with photo-
graph (a green card). List B documents are essentially official
identification cards such as a driver’s license, while list C
documents demonstrate employment eligibility such as original
social security cards, birth certificates or an unexpired INS
authorization, of which there are several varieties. List A
documents are conclusive, but the vast majority of United
States citizens do not possess them. Therefore, most persons
utilize a combination of lists B and C documents. The most
common combination is a state issued driver’s license (ID card)
and an original social security card. The reason the social secu-
rity card is preferred over a birth certificate is because the num-
ber is required in an employment context in order to fill out the
proper income tax documentation.
Thus, when the Social Security Administration notifies an
employer that an employee has presented a social security card
with a false number, it is an instant alert to the employer that
the I-9 form is probably false and that the employee has failed
to demonstrate his eligibility for employment in the United
States.
Furthermore, when the General Counsel asserts that other
documents may be used which would qualify as a list C docu-
ment, it is treading on thin ice. Another section of IRCA pro-
hibits an employer from insisting upon specific documents. If
an employer insists upon specific documentation, it is commit-

31 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982): approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
ting a violation of Section 8 U.S.C. § 1324b(a)(6) of IRCA, a
violation known as “document abuse discrimination.” It is a
practice which is specifically barred by law.32 See Getahun v.
OCAHO, 124 F.3d 591 (3d Cir. 1997) for a judicial discussion
of this statute. Therefore, the General Counsel’s observation
that the social security card is not required not only misses the
mark but suggests that the employer should have insisted upon
some other documentation. That suggestion is misplaced and
would lead an employer to violate IRCA. Accordingly, the
General Counsel’s argument here is somewhat naive.
Not only does the employee commit a crime by presenting
false documents, it can subject the employer to serious criminal
liability as well as civil liability as described in section C2
above. An employer must be alert to the false document prob-
lem and it must respond to it reasonably promptly. Moreover,
there is a general obligation on an employer’s part, imposed by
IRCA, to conduct periodic reviews of that documentation, par-
ticularly those documents which have expiration dates. Thus,
an employer is under a constant duty to be certain that its em-
ployees are actually entitled to work in the United States. Pres-
entation of a false document is a serious matter and the General
Counsel’s attitude toward that obligation does not give IRCA
the respect which it deserves. Respondent was correct to re-
spond to the Social Security Administration’s May letter and
correct in resuming that task in October. In fact, it may have
been operating improperly under INS procedures by instituting
the hiatus between June and October.
It is obvious that Respondent resumed its inquiry into the va-
lidity of the social security cards in October based upon a legal
obligation to do so. Unfortunately, the Social Security Admini-
stration procedures were cumbersome and slow, complicated
by the cultural circumstance of Hispanic individuals sometimes
not using the surname which they may legally carry. Instead,
they often use their mother’s maiden name as their surname.
Williamson made several efforts with the SSA to verify those
first six employees, but she did not want to cause their dis-
charge because she was afraid that they had simply been care-
less in the names which they had used. From her point of view,
all of these individuals had presented documentation which
appeared to be genuine. She was on the front line and did not
wish to hastily declare these individuals to be noncitizens ineli-
gible for employment in the United States, at least not without
the imprimatur of a Federal agency.
Eventually, when the Social Security Administration on De-
cember 16 gave her that imprimatur, Respondent was obligated
to act. Its response was reasonably quick (allowing for the bad
news to arrive after Christmas) and relatively tempered. It
simply barred the employees from continuing to work until they
32 The INS handbook for employers describes the document abuse
prohibition in part 4. It states based upon 8 U.S.C. § 1324b(a)(6):
Employers cannot set different employment eligibility verification
standards or require that different documents be presented by different
groups of employees. Employees can chose which documents they
want to present from the list of acceptable documents. An employer
cannot request that an employee present more or different documents
than are required or refuse to honor documents which on their face
reasonably appear to be genuine and to relate to the person presenting
them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
had presented proper documents. This treatment was no differ-
ent from what it had required in June. In January 1997, when it
wrote the second letter, it continued to offer them employment
upon the presentation of proper documentation.
The Barajas brothers never did correct their social security
numbers. Clearly, an individual who fails to meet the legal
obligation of providing proper documents to demonstrate their
right to be employed cannot reasonably expect to remain em-
ployed. Nor can the Board expect an employer, attempting to
follow those laws, to continue to employ that individual.
I am aware the General Counsel also contends that Respon-
dent knew at all times that these were individuals who were not
eligible for employment in the United States. From that “fact”
it wishes to argue that these individuals were not truly dis-
charged because of their status as illegal aliens, but because of
their union activities. There are several problems with this
argument. The first is that the General Counsel has failed to
present credible evidence that Respondent actually knew that
the Barajas brothers were undocumented aliens (or perhaps
falsely documented aliens).
That argument is undercut rather significantly by the fact that
Octavio Barajas was properly documented and was not dis-
charged. Second, there are three witnesses upon whom the
General Counsel relies to support its claim that Respondent
knew it employed individuals who were not eligible to work in
the United States. The first is Cortez’ evidence that he had
heard Stephanie Kolkka (in 1990 or 1991) tell two persons to
get some money from the bookkeeper to obtain proper docu-
mentation. I have previously discredited Cortez and I do not
credit him here. He was convicted of a felony for selling illegal
drugs (usually a deceitful activity) and he threatened “to get”
Mrs. Kolkka. His testimony may well be his means of doing
so. Moreover, even if she directed employees to obtain proper
documentation, and offered financial support for that objective,
it is not clear that she was doing anything unlawful. Some INS
documentation requires fees to be paid. It would be a stretch to
conclude that Cortez’ testimony means anything at all. The
second person who gave such testimony is Moises Barajas. He
testified first that on June 7 Stephanie Kolkka told him, through
translator Pedraza, that he should get another social security
card. He later embellished saying she told him to “buy” a new
social security card. Curiously, he omitted this conversation
from his NLRB investigative affidavit. That is, in my opinion,
a significant omission, lending credence to a charge of recent
fabrication. Once the issue became clear to him, it was easy to
see that his case is advanced if the General Counsel can prove
Respondent’s prior knowledge of his illegal status. I conclude
his testimony that Stephanie Kolkka told him to “buy” a new
social security card is not credible. The embellishment is too
convenient. The third individual is union organizer Luis So-
lares. He testified that John Kolkka, in a fury over some insub-
ordination, referred to the entire staff as individuals “without
papers.” On its face that sounds unlikely. Why would John
Kolkka or any employer who employed illegal aliens, say such
a thing to a nonconfidante and opponent such as Solares. It is
entirely improbable. Furthermore, although Solares testified in
English, he has a good deal of difficulty with the language.
There is room for a major misunderstanding on the point.
Accordingly, I am unable to conclude that the evidence pre-
sented here leads to a finding that Respondent purposefully
hired undocumented individuals or kept them employed after
discovering their undocumented status. I hesitate to make a
finding on the point one way or the other, however, for I am
aware that the Immigration and Naturalization Service has is-
sued a notice of inspection to Respondent which is currently in
abeyance pending the outcome of this matter. My observation
here is that the General Counsel has not presented sufficient
evidence for such a finding. This issue is, of course, collateral
to issue of whether the individuals were fired reasons prohib-
ited by the National Labor Relations Act and not essential to
my analysis here.
The finding which I do make is that despite the fact that
these individuals had engaged in union activity, the evidence is
conclusive that their lack of verifiable documents was the ac-
tual reason which Respondent used in its decision to let them
go. Accordingly, I find that Respondent has met its burden
under Wright Line. It would have taken the steps it did whether
or not they had engaged in any union activity and whether or
not Respondent is guilty of unfair labor practices demonstrating
union animus elsewhere. Accordingly, I conclude that this
allegation in the complaint should be dismissed.
THE REMEDY
Having found Respondent has engaged in certain unfair la-
bor practices, I find that it should be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, it shall be or-
dered to cease and desist from interfering with, restraining, and
coercing employees from engaging in activity protected by
Section 7 of the Act. In addition, it shall be ordered to take
certain affirmative action designed to remedy the violations
found herein. The affirmative action shall require Respondent
to bargain in good faith by immediately providing the Union
with any plans Respondent has regarding subcontracting work;
a copy of any company policy handbook; a list of current em-
ployees, including their wage rates, job classifications, dates of
hire, and benefits, and company policies regarding job descrip-
tions, terminations, layoffs, promotions, vacations, sick leave,
scheduled pay increases, and merit or bonus pay plans.
As Respondent has discriminatorily discharged its employ-
ees Rigoberto Moreno and Guillermo Cortez, it would normally
be required to offer them immediate and full reinstatement to
their previous jobs, or if those jobs are no longer available, to
substantially equivalent jobs and to make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from the date of their discharge to the date of proper of-
fers of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
However, Respondent argues there are two severe impedi-
ments preventing me from applying the usual remedies. The
first is that Moreno has claimed disability since the day after he
was discharged. The second is because Cortez at the time of
the hearing had been incarcerated for committing a criminal
act, selling illegal drugs, and cannot be reinstated.
KOLKKA TABLES & FINNISH-AMERICAN SAUNAS 879
With Respect to Moreno, I find that he is entitled to an offer of
reinstatement in the usual fashion, but observe that Respondent is
entitled to an offset of backpay for any substantial period of time
where he was unable to work. That is a matter which is best left
to the compliance stage for full investigation. I do observe that
Respondent’s obligation to pay backpay would end either at the
time a proper offer of reinstatement is made or when a medical
opinion has been rendered declaring Moreno permanently dis-
abled, whichever occurs first. Jenkins Index, 283 NLRB 457
(1987). I am not certain that the record demonstrates any perma-
nent disability, although a temporary disability may be inferred.
An offer of reinstatement is the starting place and I shall direct
Respondent to tender such an offer. Dayton Tire & Rubber Co.,
227 NLRB 873 (1977). And, Respondent may also inquire, at
the compliance stage, regarding issues of Moreno’s having with-
drawn from the job market.
Cortez is an entirely different matter. He was convicted
within a few months of his discharge and sentenced to 3 years
in prison. Under Board law he is not entitled to an offer of rein-
statement, but is entitled to backpay from the date of his dis-
charge until the date of his conviction. East Island Swiss Prod-
ucts, 220 NLRB 175 (1975); cf. J. P. Stevens & Co., 247
NLRB 420 (1980); NLRB v. Jacob E. Decker & Sons, 636 F.2d
129 (5th Cir. 1981). Accordingly, I will not direct Respondent
to make an offer of reinstatement to him; but shall direct back-
pay from the date of his discharge to the date of his conviction.
In Moreno’s case backpay and interest shall be computed
pursuant to the Woolworth and New Horizons for the Retarded
rules. In Cortez’ case, due to the short backpay period, the
quarterly calculations of Woolworth need not be applied, but
the interest calculations of New Horizons remain applicable.
The same is also true for Efrain Ramos Tena’s suspension of
May 15–17.
In addition, Respondent shall be ordered to remove from its
files any reference to its unlawful discharges of Moreno and
Cortez, as well as the suspension of Ramos Tena, and to notify
them in writing that this has been done and that the dis-
charges/suspension will not be used against them in any way.
And, Respondent will be affirmatively ordered to provide the
material which the Union requested in order to begin the collec-
tive bargaining process. Because that process has not yet be-
gun, I observe that the certification year based on the certificate
of representative which issued in favor of the Charging Party
on January 9, 1997, has not yet begun to run and that the obli-
gation to bargain in good faith, remains upon Respondent and
will continue to do so until he has complied with the good faith
duty imposed upon him by Section 8(a)(5) and 8(d).
Finally, Respondent will be ordered to post a notice to em-
ployees advising them of the remedial steps it will take.33
Based on the foregoing findings of fact and the record as a
whole I hereby make the following

33 As the Union has been certified as the 9(a) representative after
winning the representation election, the notice language dealing with
preelection conduct will be modified to avoid the appearance that a
second election is in the offing.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning Section 2(2), (6), and (7) of the Act.
2. Carpenters Union Local 2236, affiliated with the Bay
Counties District Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The concerted refusal to work and walkout of May 10, 13–
14, 1996 of Respondent’s unrepresented employees were pro-
tected by Section 7 of the Act as their purpose was for the mu-
tual aid and protection of employees, specifically to obtain
better working conditions relating to the piece rate pay system
by which Respondent, in large part, remunerated its employees.
4. In disciplining the employees who engaged in such activ-
ity, Respondent violated Section 8(a)(1) of the Act, whether
that discipline took the form of warnings, suspensions, or dis-
charges.
5. Respondent’s discharge of Rigoberto Moreno and Gui-
llermo Cortez and its suspension of Efrain Ramos Tena on May
15, 1996, for participating in that protected strike were viola-
tions of Section 8(a)(1) of the Act.
6. The General Counsel has failed to prove that Respondent
discharged Jose Zepeda on May 20, 1996, or that Zepeda’s
departure was connected to his protected activity. The evi-
dence demonstrates that Zepeda voluntarily resigned.
7. On various dates in July and August, Respondent violated
Section 8(a)(1) of the Act during the course of its preelection
campaign by:

Threatening to close or move the business in the event the
employees selected the Union as their collective bargaining
representative.

Threatening to refuse to negotiate a contract with the Union
in the event it became the employees’ Section 9(a) represen-
tative, thereby telling employees that having a collective bar-
gaining agent is a futile act.

Offering employees promotions and/or raises to induce them
to abandon their support for the Union and to induce them to
persuade employees to vote against union representation.

Threatening employees with unspecified reprisals if they se-
lected the Union as their representative.

Soliciting grievances and thereby impliedly promising to
correct them in order to undermine the employees’ support
for the Union.

Telling employees that they would lose some of their current
benefits or suffer wage reductions if the Union became their
representative.

8. On August 23, 1996, Respondent, acting through Butters,
violated Section 8(a)(1) by telling Efrain Ramos Tena to re-
move certain Union stickers from his personal property, a pri-
vately-owned toolbox.
9. The General Counsel has failed to prove that Respondent
suspended Roberto Barajas or Jorge Garcia on August 23,
1996; likewise it has failed to demonstrate that its suspension of
Efrain Ramos Tena on that day was for any reason other than
insubordination for repeatedly refusing to follow a direct order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
10. The General Counsel has failed to prove that Respondent
violated Section 8(a)(3) of the Act when, beginning on December
30, 1996, and thereafter, it refused to allow Francisco Barajas,
Moises Barajas, Roberto Barajas, and Sergio Barajas to continue
to work until they presented valid documents demonstrating their
right to be employed in the United States.
11. The General Counsel has failed to prove that Respon-
dent transferred its employee Moises Estrada on April 7, 1997,
from the night shift to the day shift because of his union activi-
ties or sympathies; it has therefore failed to prove that such
conduct violated Section 8(a)(3) of the Act. Likewise it has
failed to demonstrate that such transfers breached the bargain-
ing obligation.
12. Respondent violated Section 8(a)(5) of the Act by uni-
laterally, and without notice to the Union, in late August 1996,
changing the release time of its paychecks on Fridays from 2 to
4:30 p.m., thereby preventing its night-shift employees from
being able to negotiate their paychecks before they began work,
a significant change in their working conditions.
13. Respondent violated Section 8(a)(5) of the Act when be-
ginning on January 3, 1997, repeated on February 27, 1997, it
refused to provide to the Union, after the Union had requested
on those dates, certain relevant information necessary to the
performance of its duties as the 9(a) representative of its em-
ployees. That information related to: plans Respondent had
regarding subcontracting work; a copy of any company policy
handbook; a list of current employees, including their wage
rates, job classifications, dates of hire, and benefits; and com-
pany policies regarding job descriptions, terminations, layoffs,
promotions, vacations, sick leave, scheduled pay increases for
1997, and merit or bonus pay plans.
14. The General Counsel has failed to prove any remaining
allegations of the complaint where violations have not been
specifically found.
[Recommend Order Omitted from publication.]