Landmark Beef Processors, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1980

248 N.L.R.B. 175 (N.L.R.B. 1980)

LANDMARK BEEF PROCESSORS, INC. 175
Landmark Beef Processors, Inc. and Butchers Union
Local No. 563, United Food and Commercial
Workers International Union, AFL-CIO.' Case
21-CA-17428
March 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 28, 1979, Administrative Law
Judge Michael D. Stevenson issued the attached
Decision in this proceeding. Thereafter, counsel for
the General Counsel filed exceptions and a sup-
porting brief, and the Union filed a motion in sup-
port of the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions2 and
brief and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
i On June 7. 1979. the Retail Clerks International Union and the Amal-
gamated Meatcutters and Butcher Workmen of North America merged
The name of the Union herein has been amended to refect this change
I Counsel for the General Counsel has excepted to certain credibility
findings made by the Administratise Las Judge It is the Board's estab-
lished polic 5 not to overrule an administratise las judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stan-
dard Dry Wall Products. Ic., 91 NLRB 544 (1950). enfd. 188 F2d 362
(3d Cir 19511 We have carefully examined the record and find no basis
for reversing his findings
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me at Los Angeles, Califor-
nia, on June 6 and 8, 1979,' pursuant to a complaint
issued by the Regional Director for the National Labor
Relations Board for Region 21 on February 22, 1979,
and which is based on a charge filed by Butchers Union
Local No. 563, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO (herein called
the Union), on January 9, 1979. The complaint alleges
I All dates herein refer to 978 ilnles olhcr,ie inr idicalted
248 NLRB No. 41
that Landmark Beef Processors, Inc. (herein called Re-
spondent), has engaged in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (herein called the Act).
Issues
Whether or not Respondent discharged employees
Angie Theis and Francis Ramirez in violation of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of General Counsel, Charging Party, and Respon-
dent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a corporation engaged in
the business of processing and packing meat products; it
has a plant located in Los Angeles, California. It further
admits that during the past year, in the course and con-
duct of its business, it has sold and sent meat products
valued in excess of $50,000 to customers outside Califor-
nia. Accordingly it admits, and I find, that it is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Butchers Union
Local No. 563, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
Statement of Facts
On January 5, 1979, Angie Theis and Francis Ramirez,
the alleged discriminatees, were discharged from their
jobs at Respondent. The Union, represented by counsel,
and the General Counsel contend that the two women
were terminated as a result of their union activities. Re-
spondent denies this charge and claims that the women
were fired as a result of job misconduct not connected to
union activities. Some background facts will be helpful.
Respondent opened as a meat-boning operation in
August 1978 at 3163 East Vernon Avenue in the city of
Los Angeles, California. Also located at that location are
several other companies, Acme Meat Packing, Gem
Meat Packing, Goldpak Meat Packing, and Bristol Foods
Corporation. Of these. Goldpak Meat Packing and Bris-
tol Foods are of some relevance to the present case.2
2 11ch of the tran;lcrlpt contains tesllmon, relesxat to the Union's
theory of "successorship Briefl. this theor' holds that Respondent ssas
houlld by a prior contract hetseen the Union ad Goldpak and Bristol
Boning, in Lshich. tice alia. employees ere permitted to take off their
hirthdalys sith pa3, aid employees, ssere entitled to three sarnliig notlices
before dichargc Well Ilnto the hearing. General Counsel objeted to the
theor on Ihe grounds that it had nolt been originall. charged. mlestlgat-
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldpak Meat Packing Company was established in
1963 with Irving Gronsky as president. Gronsky is the
owner of the building at 3163 East Vernon Avenue.
About 1972, the corporate name of Goldpak Meat Pack-
ing was changed to Bristol Foods, Inc., d/b/a Goldpak
Meat Packing, and was still in existence at the time of
hearing. Sometime after 1972, a payroll and seniority
system was established for the Goldpak employees who
were doing boning work. These employees then received
paychecks and were under a seniority system named
Bristol Boning which distinguished them from other em-
ployees who worked on the kill floor and were receiving
Goldpak paychecks and had Goldpak seniority. Bristol
Boning went out of business and, in August, Respondent
was established. Alan Silverberg had been an officer of
Bristol Boning and is a vice president of Respondent.
The two discriminatees had been employed by both
Goldpak and Bristol Boning and the Union had a con-
tract with Bristol Boning (through Goldpak Meat Com-
pany). (G.C. Exh. 2.) During the time herein material
August through January 1978, the Union was in the pro-
cess of negotiating a contract with Respondent. 3
Shortly after Respondent began operation, it recog-
nized the Union and basically agreed to the substance of
the prior contract between the Union and Bristol Boning
with the exception of wages, recognition of employee
birthdays as holidays, and the requirement of three disci-
plinary warning notices before discharge. As to wages,
Respondent was offering to pay the journeyman meat-
cutters the industrial area rates of pay and to pay the la-
borers and packers considerably less, approximately
$4.50 and $5 per hour compared with the rates in the
previous contract of approximately $7 or more per hour.
Angie Theis has been a member of the Union since
1973. She had worked at Goldpak about 3 years as a
packer and at Bristol Boning about 2 years as a leadlady.
She knew Silverberg at Bristol Boning where he was
employed as vice president. Shortly after Respondent
began operations, Theis went to Silverberg seeking em-
ployment. The latter offered a wage of $4 per hour
which Theis rejected, asking for $6 per hour which Sil-
verberg rejected. A few weeks later, Silverberg saw
Theis at Respondent visiting friends and, upon ascertain-
ing that she was still seeking employment, Silverberg of-
fered to employ her as a leadlady in the steak depart-
ment for $5 per hour. Theis accepted and began to work
at Respondent in October.
Like Theis, Francis Ramirez had previously worked at
Goldpak and Bristol Boning. She was hired as a packer
in Respondent's steak department on the same day as
Theis. Ramirez was also a member of the Union. Theis
and Ramirez had been friends for many years, although
Theis was the dominant person. This exchange between
Respondent's counsel and Ramirez on cross-examination
is illustrative:
ed, or recited in the complaint I sustained the objection and barred fur-
ther eidence on the issue The Union's promised offer of proof did not
materialize and its brief does not discuss the matter Accordingly. the
issue of successorship is now moot and the facts in support of the theory
are novw irrelevant Neither will be discussed further
: The contract between the Union and Respondent wskas till beillng ne-
gotiated at the time of hearing
Q. (by Mr. Steese) Were you close to Angie?
A. (Ramirez): Oh, yes.
Q. You are pretty close to Angie all the time, are
you not?
A. Yes.
Q. You pretty much follow Angie around, don't
you?
A. Right.
For a time after they began work, Theis and Ramirez
performed their jobs adequately. As a leadlady, Theis
was responsible for keeping the production of approxi-
mately 28 packers running smoothly. From time to time
Theis received compliments written by Silverberg on her
check stubs that she was doing a good job and to keep it
up.4 In addition to these written comments, Theis re-
ceived a 50-cent-per-hour raise a few weeks after she
started, but before the November union meeting referred
to below.
On or about November 15, Theis and Ramirez attend-
ed a union meeting conducted by James J. Rodriguez,
business agent for the Union. The meeting was called for
the purpose of presenting Respondent's wage offer to the
union membership. Respondent employed between 70 to
80 employees, the majority of them formerly employed
at Bristol Boning. As presented to the employees by Ro-
driguez, Respondent was offering $8.35 per hour to the
beef boners and beef breakers (journeyman rate), $7.40
per hour to the trimmers, and $5 per hour to the pack-
ers.5 The Union had agreed to the wage offer for the
first two classifications, but had not agreed to the offer
for packers.
The reaction of the employees at the union meeting to
Respondent's offer was mixed. First, Olivario Jiminez, a
boner, stood up and said the Company's offer was fair.
Another employee supported this position. Following
this, Theis got up and said that the Company's offer was
not fair, that the packers should be paid as much as the
other companies were paying packers, and that they
should all stick together. Ramirez then spoke out in sup-
port of Theis' position, agreeing that the employees
should all stick together. Following the heated debate,
both Theis and Ramirez passed out union cards to em-
ployees who had not previously signed them and further
assisted these employees by interpreting the cards in
Spanish.
About a week after this union meeting, Theis had a
conversation with George Johnson, then her immediate
supervisor. There is some conflict as to the contents of
that conversation. According to Theis, she was told that
Silverberg had heard about her comments at the union
meeting and as a result had decided not to promote her
to a salaried position where she would have made more
money. According to George Johnson, he told Theis in
late November or December that he would like to see
her on salary, but she was always shooting off her
i While the check stubs were not introduced into evidence, and Silver-
berg testified he did not recall writing these compliments, I credit Theis'
testimony ioni this point
s Al Bristol Boning. packers had been paid 57 15 per hour, the other
.lassificalions had been paid approximately he same as Respondelt's No-
Nvember offer
LANDMARK BEEF PROCESSORS, INC. 177
mouth. At the time Johnson made this statement he had
heard from other employees about the November union
meeting and that Theis had spoken out in favor of more
money. Johnson had heard about these matters I or 2
months before Theis was discharged. Johnson also testi-
fied that he told Silverberg in early November before
Theis got a raise that Theis was dissatisfied and wanted
more money. Johnson specifically denied that his com-
ments to Theis referred to her remarks at the union
meeting. Rather, he said, his remark referred to Theis'
habit of "bad mouthing" supervisors in front of other
employees.
In resolving this first of several conflicts in the testi-
mony, I credit Theis' testimony." It was clear that Theis
spoke out about low wages not only at the union meet-
ing, but also around the plant. Silverberg admitted that
he was aware that Theis was dissatisfied over wages.
Not only was she making substantially less than she had
made at Goldpak and Bristol Boning-even considering
the 50-cent wage increase-but also to make matters
worse in her mind-the boners and trimmers were being
paid union scale, the same as they had received at Gold-
pak and Bristol Boning. George Johnson had been a su-
pervisor at the time of his remarks to Theis. At the time
of his testimony, he was a production worker having
been demoted at his own request because he was unable
to handle the pressures of his job. I was not overly im-
pressed with his demeanor as he testified on this point.
Moreover, I note that in his statement to the Board
agent, Johnson said:
I did tell her [Theis] that I would like to see her on
salary if she was going to be a lead person, but she
was always shooting her mouth off. I heard from
other employees around the plant that she had made
statements that all of the people should be making
$7 or $8 per hour.
This statement tends to impeach Johnson's hearing testi-
mony on this point and support Theis' version of the
conversation.
The next conflict in the evidence concerns a second
Theis-Johnson conversation which occurred on January
3, 1979. Theis testified that she told Johnson she would
not be in the next day as it was her birthday. Johnson
allegedly said, "OK." According to Johnson, there was
nothing said about anyone's birthday; rather, Theis again
referred to disparity in pay rates. More specifically,
Theis asked Johnson if he knew that "Richard" was
making more than she was. Johnson responded, "So
what, he's a slicer operator." Then Theis responded by
saying, "If the Company doesn't care about me any more
than that as hard as I work, I was planning to come in,
but I don't know whether I want to come in." Johnson
responded by reminding Theis that he had no power to
grant raises and that she would have to take up her com-
plaint with Silverberg.
' It appears hal failing to promole an employee for enlgaging irm pro-
tecled actllties mas be a iolatioi of S c 8(a}I) of the Act. Hovseer,
said iolation sas neither charged nor litigated and I make no specific
firnding on the poiit
On this conversation, I believe Johnson and discredit
Theis. 7 First, Johnson was not the kind of person to
assume any more responsibility than necessary. He knew
that his department was shorthanded as two employees
were visiting a relative in Mexico and Ramirez was not
in. Moreover, he also knew, that employees were not per-
mitted to take their birthdays off. On the other hand,
Theis was extremely concerned about the disparity in
pay rates and it is likely that she told Johnson just what
he testified to. Finally, when Theis met with Silverberg
on January 5, 1979, to explain her absence from work on
January 4, Theis did not mention to Silverberg that
Johnson said it was "OK" for her to be off work for her
birthday. Her failure to mention the alleged approval
when she knew her job was at stake is persuasive that
Johnson never said "OK."
There is also a conflict in the evidence as to a January
3, 1979, Ramirez-Johnson conversation which is related
to the earlier conversation discussed above. Ramirez tes-
tified that she asked Johnson, "Angie's taking her birth-
day off?" and Johnson said, "Yes." Johnson described
the conversation differently. Ramirez asked him, "What's
wrong with Angie? Is she coming in tomorrow?" John-
son answered that he did not know, that he had referred
Theis to Silverberg. Ramirez then said, "Well, if she
don't come in, I won't come in." Again, I believe John-
son on this point and credit his testimony. 8 Ramirez ad-
mitted at the hearing that she was a close friend of Theis
and generally followed her example. Furthermore, subse-
quent events more fully detailed below are consistent
with Ramirez' statement of intent. Finally, I again find
that Johnson would not have silently acquiesced in Ra-
mirez' expressed intention of remaining at home. Then
four employees would have been absent and, as it turned
out, were in fact absent from work, disrupting Respon-
dent's production for the day.
On January 4, 1979, a workday, neither Theis nor Ra-
mirez reported for work. On January 5, 1979, both were
fired by Silverberg. Theis testified that she did not report
for work because she thought it was her birthday. In
fact, her birthday was the next day, January 5, 1979.
When Theis discovered her mistake about 9 a.m., she tes-
tified that she called the Company, talked to Johnson,
explained what had happened and offered to come in to
work late. Theis further testified that Johnson told her
first that Rudy Aragon, Respondent's personnel supervi-
sor, had already told him that it was not Theis' birthday.
Next, Johnson said it was a slow day' and she would not
have to bother coming in, he would see her tomorrow.
Again there is a sharp conflict in the evidence. Johnson
' In making this inding I hake considered the report of Rudy Aragon
in hich his investigation shoued (from unidentified sources) that on
January 3. 1979. Theis told Johnson. in the presence of other employees.
that she as upset that someone else had gllen a raise and she might as
ell litake off omorro,s. "It's m) birthda 5 an)rL ay" This report is
conflicl holh sith Johnson's and Thels' account Because of the hearsa
nature of the report. I assign it little elght
$ In creditng Johnsonls testimoni. I hae coInsidered the GieneralI
Co rlllsel attempted impeachment orf Johlll ll 1 iit a poinled Iual that
Johllsoil i) er menliolled the Jnu.ar 3 I 79. Rlitre/ cionllerati n ll in
his affidas i[ to a lBoard agent H nes li r i i mlpoi psle to Ceigh the
effect of this ortlision, nce here sas no ditce ple'CentCd Ion Jtlht
sxhat Johnson N, as asked habout ill the altfidasxit \lthout knong the
qusL to l. li ailtg d failltUe to gl .I I pr pel ais n r i t, iiIt he i.asired
& l S
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that on January 4, 1979, he received a phone
call from Theis about 9 a.m. Theis said that she would
not be in because it was her birthday. This was in re-
sponse to Johnson asking, "What's wrong, why aren't
you here?" Then Johnson told her that she was needed,
that the two Pacheko sisters were off, that Francis was
not in, and that Johnson was behind on his production.
To this, Theis allegedly replied, "Well, it's too late
now." Johnson again asked her to come in because he
needed her, but she refused. I credit Johnson's version of
this conversation and I do not believe Theis. It was unre-
butted that two sisters named Pacheko and Francis Ra-
mirez were not in on that day. Johnson knew all this
when Theis called and it is incredible to believe that he
would tell Theis that she did not have to come in be-
cause it was a slow day. Moreover, even if it were Theis'
birthday, there was no justification for her to be absent
from work.
Under the prior contract between Goldpak and Bristol
Boning, an employee's birthday was a holiday (G.C.
Exh. 2, art. X, pp. 16-17). Employees also had the option
of working on their birthday for additional pay. When
Respondent began operations in August, this policy was
changed so that employees whose birthdays fell on a
workday were not permitted to take off, but were re-
quired to work and were then given an extra day's pay
plus a free lunch. If an employee were sick on his birth-
day, he was paid for that day, while normally the Com-
pany did not pay an employee for the first sick day.
Francis Ramirez testified that she was off work on
January 4, due to illness. She allegedly left her home at
the normal time, but had a menstrual accident which left
her clothing soiled. Ramirez testified further that she had
been treated by a physician at Kaiser Medical Center on
January 3, 1979, after work, for menstrual problems. The
doctor allegedly gave Ramirez a note telling her to take
off work on Thursday and Friday, January 4 and 5,
1979. Ramirez claims she lost this note, but obtained a
second note dated January 8, 1979. This note reads that
Ramirez was disabled from January 3 through January 5,
(1979) due to "flu." Permission was granted to return to
work on January 5, 1979. (G.C. Exh. 3.)
When Ramirez became aware of her menstrual prob-
lems, on January 4, 1979, she decided to drive to Theis'
home which was on the way to work. Ramirez testified
that she knew Theis would be home because Theis had
told her the day before that she was taking her birthday
off. Ramirez called in about 6 a.m. and told a man named
Sarge that she would not be coming in due to illness and
that Sarge should give the message to Johnson. Ramirez
spent several hours on January 4, 1979, at the home of
Theis and returned to work the next day.
Respondent's policy requires that anyone who is
unable to come to work should call in between 6 and
7:30 a.m. and give the reason why the employee cannot
come to work. (Resp. Exh. 10.) 9
On January 5, 1979, both Theis and Ramirez met sepa-
rately with Silverberg in his office in the presence of
Johnson and Aragon. Theis explained that she did not
9 Johnson was not asked whether Sarge eer delihered he Rlamirez
message
come in because she believed it was her birthday. She
also admitted that she did not come in, in part, because
she was mad that someone got a raise. Theis testified
that Silverberg then asked her, "What about the Union?
How come you said this and that about the Company?"
When Theis responded that she had only talked about
the wage issue, Silverberg allegedly said, "Well, if you
are so interested in the Union, why don't you go to
work for them or let them find you a job?" In response
to Silverberg's question, "Why do you think you deserve
another raise," Theis allegedly answered, "Because I was
worth it, because I did a lot of work."
Silverberg testified that he told Theis that he had
heard she was unhappy about her wages. He also told
Theis that it was not her birthday and he reminded her
of the other persons in her department who were not in
on January 4, 1979, thereby disrupting production. When
he then asked Theis why she did not come in, she said,
"I don't know." Theis also denied that she sought other
employment on January 3, 1979, at a competitor of Re-
spondent, though Silverberg suspected that she had.' °
Silverberg went on to testify that he discussed with
Theis some reports he had received on her supposed bad
attitude and poor work. I accept Silverberg's account of
the conversation with Theis. I do not believe Silverberg
mentioned the Union. There was no evidence of animus
toward the Union, and Goldpak and Bristol Boning,
companies with which Silverberg was previously associ-
ated, appeared to have had a cordial relationship with
the Union. While the Union did not have a contract with
Respondent, there was no evidence of hostility between
the parties. (See, e.g., Resp. Exh. 10.) The single major
issue concerned packers' wages. Moreover, Silverberg's
account of the conversation is generally supported by
Aragon. " While Aragon is an employee of Respondent
and a subordinate of Silverberg, I nevertheless credit his
account of the conversation and I find it corroborates
Silverberg.
After Theis was told to return home and call the Com-
pany at 2:30 p.m. for Silverberg's decision on her future
with the Company, Silverberg met with Ramirez. She
explained that she had been ill on January 4, 1979, and
had been treated by a physician, but then lost her doc-
tor's slip. Next, Ramirez denied that she spent January 4,
1979, or any part of it with Theis. When challenged by
Silverberg, Ramirez admitted lying and stated that she
had spent several hours with Theis at the latter's home.
Ramirez was then also sent home and told to call in at
2:30 p.m. At 2:30 p.m., both women were told by
Aragon that they were fired.
Discussion and Analysis
1. Discharge of Angie Theis
I begin by recognizing that Theis was unquestionably
engaged in protected conduct at the November union
meeting and in her later discussions with other employ-
ees relative to getting more pay for the packers. Accord-
1o Theis admitted on cross-examinalltn that she had been to the com-
petitlr on the da i question. but not to seek other employment
" The other participant at the January 5. 1979. nmeeting as Johnson.
-i hto \as I t pecifiall asked hout the con' ersallon
LANDMARK BEEF PROCESSORS, INC. 179
ingly, her discharge on January 5, 1979, is subject to
strict scrutiny for the purpose of determining the true
motive.2 The oft-cited case of Shattuck Denn Mining
Corporation v. NL.R.B., 362 F.2d 466, 470 (9th Cir.
1966), is applicable to this case:
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be avail-
able that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact . . . required to be any more naif than
is a judge. If he finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that
the motive is one that the employer desires to con-
ceal-an unlawful motive-at least where . . . the
surrounding facts tend to reinforce that inference.
In this case, I am constrained to find, in part, that the
stated reason for Theis' discharge is false. This finding
raises the inference of an unlawful motive if the sur-
rounding facts tend to reinforce that inference. With this
outline, I turn first to the stated reasons for Theis' dis-
charge.
Silverberg testified to the reasons for Theis' discharge:
She was fired for not coming in to work on January 4,
1979, without a good reason. At other times in Silver-
berg's testimony, other reasons appeared to surface in his
testimony. For example:
Q. (By Mr. George) Was Angie Theis discharged
because she took off January the 4th and not the
5th?
A. (Mr. Silverberg) Among other situations, yes.
Q. What other reasons besides that one was she
discharged for?
A. She was in a position of responsibility. She
was paid 25 percent more than the employees she
was working with. For this money that she accept-
ed every week, she understood the problems of pro-
duction.
She then took Francis Ramirez when she knew the
department was poorly staffed and knew that we
had to get production out and took her out of the
plant because Francis listens to everything she says,
as she testified to, and they stayed out of the plant.
I Respondent contends in his brief Ihat here is no eidence that Sil-
verberg knew of Theis, remarks a the unilon meeting ir her similar tom-
plaints in and around the sork area Howeser. Johnson. a supervisor. ad-
mitted knowing of her complaints both at the meeting and around the
Company his and other informatirn as cnesed to Si erherg on
Janaur 4. 1979. at a meeting of upcrslors This is an adequate sho illng
of knowsledge G, H It .rphr hid/,ircc. Inic,. PA,rrIabl E/hrii lu, D, i-
sion. 183 NRBH 19h (197(t)
Notwithstanding the above exchange, Silverberg next
denied that Theis was fired for any reason other than
being absent from work on January 4, 1979.
Then, virtually in the next breath, Silverberg again
said a second reason for Theis' discharge was keeping
Ramirez out of the plant. Then a torrent of other alleged
reasons followed: (1) Theis used foul and abusive lan-
guage at the plant; (2) Theis was responsible for two or
three ex-husbands at the plant at different times; (3)
Theis did not do good work; (4) Theis lied to Silverberg
about looking for work at a competitor; (5) Theis did not
call in between 6 and 7:30 a.m. on January 4, 1979, but
called in around 9 a.m; (6) Theis had a bad attitude about
her job.
In examining Silverberg's testimony above, I am struck
with the multiplicity of alleged reasons and the belated
explanations for his actions, all of which are familiar
signposts to discriminatory intent. Hansen Cakes, Inc.,
242 NLRB No. 74 (1979). His testimony regarding the
motivation for discharging Theis is conflicting and tends
to be unconvincing. I reject some of the reasons for the
discharge as untrue: that Theis was responsible for Ra-
mirez' absence from work on January 4, 1979;13 that
Theis used foul and abusive language at work; 4 that
Theis was responsible for two or three ex-husbands
hanging around the plant (or that this even occurred);' 5
that Theis did not do good work;' 6 all of these reasons
are completely unsupported by the record and appear to
me to be false or at least highly suspect. There is also no
proof that Theis lied about looking for work at a com-
petitor. ' The claim of bad attitude on the job is too
vague for discussion. To all of this must be added the
testimony of Aragon, which I find to be credible that
Silverberg decided on the afternoon of January 4, 1979,
at a meeting of supervisors, to discharge Theis and to
pay her 40 hours' pay for the week plus 4 hours addi-
tional as termination pay. This testimony impeaches the
testimony of Silverberg that he did not decide to fire
Theis and Ramirez until after he met with them on Janu-
ary 5, 1979.
With all the evidence, marshaled above, and the infer-
ences flowing from it, yet I find, on balance, there is a
stronger case that can be made for Respondent and for a
nondiscriminatory discharge.'
First, there was not only no evidence of union animus,
but, rather, evidence that relations between Respondent
and the Union were unusually cordial. The record shows
.' See mn discussion of he Ramirez discharge in part 2 of Discussion
and Analssis
'1 Theis once horrooted a coworker's atch s lth a ohscene slogan
imprinled n iI and swore the swalch I da) There is Iio eidece that this
act r ai\ olhei eceeded he standards of behax lor il Respondliel',
plalnt
' At one point hile rTheis orked for Bristol Boninig. he separated
from her hush;band part from this fact and Silserherg tesimollno. Ihere
is no e ldence that certain men disrupted pr dluctilon or thlla. ifr I oc-
curred. Theis sas responsible for it
' Thcis ,a, hired bh Silserberg at S1 higher than1. the itinal offer ad
a short hile later ssas gisen a 50-cent-per-hotlr raise Al o,. Silel-herg
made o ccaslollal rilttn complinmentci ot Theis' ,heik stubs
' lhls admitted a. the hearing thait he hlad gone t the competitor.
hult 1lt for the purp.ose f seeking w ork
'I Se Zardl HarJr,ar- Doirrv. I , 234 NI R it l lf,. fi r .i cise
,omcshalt ilmilar t te preseNlt ce
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
early recognition of the Union and agreement on all
major issues save wages for the packers. There is no
claim in this case of unfair labor practices other than the
alleged discriminatory discharge. 9 While neither the
presence nor the lack of union animus is determinative in
assessing motive in a discharge, its absence no less than
its presence is a relevant factor. 20
Next, I have previously credited Johnson's account of
the January 3, 1979, conversation with Theis in which
she indicated displeasure that someone else was getting
more money than she was. She hinted that she might not
appear for work the next day and she did not. Thus, it
appears that the object of Theis' absence from work was
to protest her own lack of parity with another employee.
Under these conditions, Respondent had a right to dis-
charge Theis for her absence 2 1 and one of the reasons
given by Silverberg for the discharge was valid. It was
also permissible for Silverberg to take into account
Theis' position as leadlady and the fact that she was paid
25 percent more than the other packers. 22 Theis called
in at 9 a.m. and was asked by Johnson to come in, as she
was needed. Her refusal was an aggravating factor of her
absence, as was the timing of her telephone call. Compa-
ny policy required notice of absence to the Company be-
tween the hours of 6 and 7:30 a.m. Silverberg explained
that any disruption of his business had severe conse-
quences. The meat must be kept fresh. Much of it is pro-
cessed pursuant to contract with the U.S. Government,
which will reject shipments that are not made on time.
More specifically, for the period between January 3 and
4, 1979, Silverberg reported a drop in production of fin-
ished steaks from 27,000 to 17,000 pounds. Indeed, pro-
duction is so essential to Respondent that Johnson was
removed from his job as supervisor in part because he
was unable to ensure continued high production.
Even if it be assumed arguendo that Theis had a good-
faith belief that January 4, 1979, was her birthday, the
result of this case would not change. After 3 years at
Goldpak and 2 years at Bristol Boning, Theis testified
that she may have taken her birthday off once before,
but she was not sure. An employee of Respondent
named Rojas testified that he took off on his birthday
and was paid for it. He also so testified that he told
many of his coworkers that he had been sick. While not
entirely clear, it appears that he was paid for his birthday
only because he called in sick. Although Respondent has
between 70-80 employees, no other evidence or wit-
nesses, of a credible nature, were introduced on the sub-
ject of taking birthdays off. 23 Thus, I must conclude that
whether or not Theis believed it was her birthday on
January 4, 1979, she could not reasonably have believed
she had a right to take the day off. In this regard, I also
II HoAever, see fn 6
20 4/ton Bsox Brd Cotnpa. Contwiter Dision, 55 NRB 10)25
(1965)
2 Cf Sriwe Eiploree Loal 250 [arring toonc Imrt .] v
.\:L.R... 101 I.RRM 2(X)4, 86h .C '11,273 (D C Cir 197q)
2 Chrvfkr Corporati. DoLdgIe irtk Plant. 232 NI RKB 466 (19771
2': ''heiic tecified Ihal he y*as a. ire f otlhr eniplo'Ce, taiking their
hirthdays off: Jse Rodriguez. I'atrici;a Hlalrse. and Ohalrio Jlnllen Ni
reasonl ;la ad;lllncd h Ihclie persIons acre ino] called a, i i risc jIlt
as Rojbis ; as I regard the i i nioi of The ll f hi this pint as elf- sf ihg
and llt credible 'k hen i osidtered in the context of this casc
note she did not tell Silverberg on January 5 that John-
son said it was "OK" to take her birthday off. Of course,
I previously found that Johnson never made such a
remark and her failure to receive Johnson's permission
further convinces me that Theis did not believe she had
a right to the day off.
It is also claimed that it was not the practice of Re-
spondent to discharge employees for a single unexcused
absence. However, Silverberg testified that a person
named Lucille Johnson and one or two others had been
fired for one unexcused absence. No records were intro-
duced by Respondent reflecting these discharges, and
Silverberg's testimony is subject to the same infirmities
as Theis' testimony regarding other persons who took
their birthdays off. (See fn. 23.) The other side of the
coin is that there is no evidence that employees taking
one or more days off were not fired by Respondent.
Moreover, both Theis and Ramirez did more than absent
themselves from work without good cause. Ramirez lied
to Silverberg about where she spent January 4, 1979.
Theis held a key production job and failed to call in be-
tween 6 and 7:30 a.m., as required by company policy.
She also failed to come in at 9 a.m. after Johnson told
her that she was needed. All of the above facts convince
me that Theis was not fired in violation of the Act. 24 As
the Board stated in Rosso & Mastracco, Inc. d/b/a Giant
Open Air Market, 231 NLRB 945 (1977):
An employee cannot insulate . . . herself from a
discharge for cause simply because . . she happens
to engage in activity protected by the Act. .... it
is clear that employee misconduct which would jus-
tify a discharge, absent any protected activity, will
also justify a discharge despite protected activity.
In conclusion of the Theis case, I have examined the
so-called mixed motivation cases, e.g., Construction, Pro-
duction & Maintenance Laborers' Union Local o. 383,
etc. (William Pulice Concrete Construction), 236 NLRB
125 (1978), with the facts of the instant case in mind to
determine whether the evidence in this case shows that
Respondent resorted to a valid reason for a discharge as
a pretext for building a case against an employee due to
her union activities. United .Aircraft Corporation v.
N.L.R.B., 440 F.2d 85 (2d Cir. 1971). However, this
theory does not fit here. While I have previously found
valid reasons for Theis' discharge. there is no evidence
which suggests these valid reasons were seized upon as a
pretext to fire Theis. On January 4, 1979, Theis failed to
come to work without a good reason. She held a posi-
tion of some responsibility for which she received higher
pay than others. Her absence substantially affected pro-
duction. She was fired. Under the facts and circum-
stances of this case, said discharge was not unlawful.
i Responldent illtroduced e cldcII e Iheil 1Cis Cnrllplained to the
[FF()C Xbhoill her discharge aid iads lccd rleaionl% ill supporl of her claim
shlich are diffe'rell front he reas1Ils adIlaltccd ill Isi clase 1-hci s had
c\cr! righi 1I0 tiliue eCscrxl legIl firilril l ihlic tI hLer I filtd lI 11 1co(l-
sistelnc\ ill heir ciomplaintis belorc the NI Ri and the It ()OC Accordillg-
1\. I h e no relied on c idcllicc o i th ) t ()C fil in r cig m L hi lg l deci-
'Oll I 11 l thi C L',
LANDMARK BEEF PROCESSORS, INC. 181
2. Discharge of Francis Ramirez
As noted above, Ramirez had a relationship with Theis
whereby she followed Theis around and imitated her be-
havior. She admitted this at the hearing and Silverberg
even testified that he considered Theis responsible for
Ramirez missing work on January 4, 1979. I find, howev-
er, that Ramirez was completely responsible for her own
acts and, as such, was properly discharged on January 5,
1979.
Ramirez echoed Theis' comments at the November
union meeting that packers should be paid more money.
She also helped Theis pass out union cards. This is the
extent of her protected acitivtiy. However, the evidence
shows that her intent was not to improve the wages and
conditions of employment, but rather to follow the ex-
ample of Theis. Following the example of another person
for reasons unconnected with the improvement of the
general welfare does not fall under the cloak of protect-
ed activity. However, for purposes of this discussion, I
assume arguendo that Ramirez' actions were protected.
Of much greater import to this decision is Ramirez'
January 3, 1979, statement to Johnson, which I have
credited that, "If Angie don't [sic] come in, I won't
come in." Again, the statement does not indicate that
protected activity is afoot. The next day, Theis did not
come to work and neither did Ramirez, just as she had
said. Her reason for being absent, the lost doctor's slip,
and the second doctor's slip, which Ramirez admitted
was not true as written, all convince me that Ramirez
was not truly ill on January 4, 1979, to the extent that
she could not report for work. I discredit and disbelieve
her entire testimony on this point as inherently incredible
and unsupported by the evidence. Any doubts about this
finding are dissipated when Ramirez admitted at the
hearing that she spent several hours with Theis at the
latter's home on January 4, 1979. No claim is made nor
proof presented that this extended visit was medically
necessary. Finally, when asked by Silverberg on January
5, 1979, whether she visited Theis on January 4, 1979,
Ramirez first denied but then admitted that she spent
several hours with Theis on January 4. In NV.L.R.B.v.
.Mueller Brass Co., 509 F.2d 704, 713 (5th Cir. 1975), the
court stated:
Any employer has the right to demand that its
employees be honest and truthful in every facet of
their employment. Absent an antiunion motivation,
any employer has the right to discipline an employ-
ee for his dishonesty or untruthfulness. 2 5
Of course, Ramirez must also bear a share of the respon-
sibility for the decreased production on January 4, 1979,
as described by Silverberg.
In conclusion, I note that, in February or March 1979,
Ramirez was called on the telephone by Aragon and
asked to come to the office the next day to discuss rein-
statement with Silverberg. Ramirez agreed to come in,
but then failed to appear, without explanation. There is
no evidence that a similar offer was made to Theis. The
lack of explanation for failing to respond to Aragon's
offer extended to the hearing itself. Because this post-
script in the case was not adequately developed by the
parties, I believe it has little or no evidentiary value.
However, I remain convinced that the discharge of Ra-
mirez under the facts herein presented was not unlawful.
CONC.USIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 2 6
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
21 See also VL. R B Pioneer Plotic, Corp. 379 F 2d 301. 30 -307
(Ist Cir 1967).
12 In the eent no exceptions are filed as pros ided b Sec. 102 46 of
the Rules and Regulations of the National labor Relations Board. the
findings. conclusions. and recommended Order herein shall. a pro'.ided
in Sec 102 48 of the Rules and Regulationl. be adopted hb the Board and
become its findings. conclusionis. and Order. and all ohbjciorl thleo
shall be deemed aied fir all purpoe