Mark Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1991

296 N.L.R.B. 463 (N.L.R.B. 1991)

MARK INDUSTRIES, INC.
Mark Industries, Inc. and Teamsters Local 1110.
Case 23-CA-10470
August 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On June 5 , 1989, Administrative Law Judge
Richard J . Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions, 2 to modify the remedy , and to adopt
the recommended Order as modified.3
AMENDED REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order it
to cease and desist and to take certain affirmative
action to effectuate the policies of the Act. We
shall order the Respondent to offer Joseph M.
Castro full and immediate reinstatement to his
former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or any other rights or privileges previ-
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We agree with the judge that the Respondent 's discharge of employ-
ee Joseph Castro violated Sec 8 (a)(3) and (1) of the Act under the prin-
ciples set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir . 1981), cert . denied 455 U.S. 989 ( 1982), approved in NLRB
Y. Transportation Management Corp., 462 U.S 393 ( 1983) Thus , the judge
found , inter alia , that the Respondent had knowledge of Castro 's union
activities , that the Respondent was opposed to unionization in general,
and that the Respondent singled out Castro in particular for discriminato-
ry treatment. The judge further found that of the four reasons the Re-
spondent offered in support of the discharge , two of them actually re-
ferred to conduct protected by the Act. These circumstances amply sup-
port a finding that the General Counsel sustained his burden under
Wright Line of establishing that Castro 's union activities were a motivat-
ing factor in the Respondent 's decision to discharge him. Turning to the
Respondent 's Wright Line burden, the judge found that it had failed to
demonstrate that it would have discharged Castro for the remaining rea-
sons even in the absence of his union activities . Inasmuch as we agree
with the judge's Wright Line analysis , we find it unnecessary to rely on
his discussion of Castro 's discharge under the principles of NLRB v
Burnup & Sims , 379 U S. 21 (1964).
3 We shall modify the judge 's recommended Order to include the
standard Board reinstatement remedy for Castro 's discharge The parties
did not fully litigate the issue of whether Castro would have been reas-
signed or transferred to a substantially equivalent position when the Re-
spondent 's Selma , Texas facility closed in October 1986. We leave the
resolution of this inquiry to the compliance stage of this proceeding See
generally Dean Genera l Contractors, 285 NLRB 573 (1987).
463
ously enjoyed , and make him whole for any loss of
earnings and other benefits resulting from his dis-
charge in the manner set forth in the remedy sec-
tion of the judge 's decision . The Respondent shall
undertake our traditional make -whole remedy with
the understanding that at compliance it may intro-
duce evidence regarding the likelihood of Joseph
M. Castro's reassignment or transfer to other facili-
ties of the Respondent.
We shall also order the Respondent to mail no-
tices to all employees on its Selma , Texas payroll
as of July 16 , 1986 (the date of Castro 's discharge),
at their last known address.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Mark Industries , Inc., Selma, Texas, its
officers , agents, successors , and assigns , shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Joseph M. Castro immediate and 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, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the decision."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to issue and abide by this notice
and to mail copies of it to all employees on our
payroll at our Selma, Texas plant as of July 16,
1986.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
296 NLRB No. 64
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Teamsters
Local 1110 or any other union.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Joseph M . Castro immediate and
full reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent posi-
tion , without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his July 16 , 1986 dis-
charge , less any net interim earnings , plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
MARK INDUSTRIES, INC.
Guadalupe Ruiz, Esq., for the General Counsel.
Norman Jones (Jones, Jones & Jones), San Simeon, Cali-
fornia, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD J . LINTON, Administrative Law Judge. This
is a discharge case . I find that Respondent Mark dis-
charged Joseph M. Castro on July 16 , 1986, because of
his activities on behalf of Teamsters Local 1110 at
Mark 's Selma (San Antonio), Texas plant. Because the
Selma plant has closed , I do not order reinstatement, but
I order Mark to make Castro whole, with interest.
I presided at the de novo trial of this case on February
14, 1989, in San Antonio , Texas . On September 26, 1986,
the General Counsel of the National Labor Relations
Board , through the Regional Director of Region 23 of
the Board , issued a complaint in this case against Mark
Industries , Inc. (Respondent or Mark). The complaint is
based on a charge filed August 13, 1986, against Mark by
Teamsters Local 1110 (Teamsters or Union).
In the complaint , as amended at the initial hearing, the
General Counsel alleges that the Respondent violated
Section 8(a)(3) and ( 1) of the Act by discharging Joseph
M. Castro on July 16, 1986 , because of his activities on
behalf of Teamsters Local 1110. The complaint contains
no allegations of independent violations of Section
8(a)(1) of the Act.
By its answer Respondent Mark admits certain factual
matters but denies violating the Act.
Administrative Law Judge William A . Gershuny pre-
sided at the original trial of this case on June 16, 1987, in
San Antonio , Texas . Judge Gershuny issued his decision
on September 3, 1987, dismissing the complaint , and the
General Counsel filed exceptions with the Board. By its
decision of November 21, 1988, not published in the
Board 's bound volumes, the Board remanded the case for
additional findings and credibility resolutions. Because
Judge Gershuny is no longer with the Agency, the
Board remanded the case to the chief administrative law
judge "to designate an administrative law judge to con-
duct a new hearing and consider the issues de novo." I
was so designated by order dated November 29, 1988.
After conferring with the parties , I scheduled the new
hearing for February 14, 1989.
On the entire record , including my observation of the
demeanor of the witnesses , and after considering the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
A California corporation , Mark manufactures machin-
ery. Joseph M. Castro worked at Respondent 's Selma,
Texas plant. Selma is a small town a few miles northeast
of San Antonio , Texas . During the 12 months preceding
the issuance of the complaint , Mark purchased goods and
materials valued in excess of $50,000 that were received
at its Selma, Texas plant direct from points located out-
side Texas . Respondent admits , and I find , that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that Teamsters Local
1110 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The record
The transcript of Judge Gershuny's June 16, 1987
hearing in this case consists of 181 numbered pages in a
single volume . For purposes of citations to that 1987 tes-
timony, I shall refer to that transcript as volume 1 and
indicate citations to it by volume and page . The tran-
script of the February 14, 1989 de novo hearing before
me consists of 100 numbered pages in a single volume.
For citation purposes I shall refer to it as volume 2 with
citations , or references to it by volume and page. The
June 16, 1987 transcript of testimony was received in
evidence at the February 14, 1989 de novo hearing
before me as General Counsel's Exhibit 15 (2:31).
Before me the parties elected to offer in evidence the
transcript and exhibits from the original June 16, 1987
hearing . I received the record of the original hearing
generally, based on the desires of the parties , with only
one limitation . The single limitation , an obvious one and
a limitation the parties expressly understood, is that I
will not be able to assess the demeanor the witnesses dis-
played before Judge Gershuny (2:5-6). The original ex-
hibits were received at the new hearing with no change
in the numbers . Very few new exhibits were offered at
the de novo hearing before me : the briefs to Judge Ger-
MARK INDUSTRIES, INC.
shuny from the General Counsel (G.C. Exh. 13)1 and
from Mark (G.C. Exh. 14), the original transcript (G.C.
Exh. 15), and items (R. Exhs. 14a, 14b, 15) pertaining to
Mark's pretrial effort to serve subpoenas duces tecum on
Castro (2:30). I rejected Respondent's Exhibits 14a, 14b,
and 15 (2:59-69).
2. Mark's plant at Selma, Texas
Norman E. Jones represented Respondent Mark at
both hearings ( 1:5; 2:4). Jones is a member of a labor re-
lations firm , Jones, Jones & Jones, representing manage-
ment (1:11). Although he earned a law degree , Jones is
not a licensed attorney because he never took the bar ex-
amination (1:11, 2:97). Jones also is a director of Mark
(1:11; 2:96).
Jones testified that currently Mark operates only in
California, near Los Angeles (1:12; 2:92). Mark opened
the Selma, Texas plant, the facility where Castro
worked , in late 1985 and closed it in October 1986 (1:12;
2:92). Although Mark owns the Selma property, the fa-
cility currently is leased and is for sale (1:12; 2 :91). Mark.
employs a former supervisor of the Selma work force as
a caretaker of the Selma property , but Mark has no other
employees on the premises (2:93, 95).
Mark manufactures hydraulic manlifts (2:96-97), and
that is the product it manufactured at Selma when that
plant was operating (1:34). Jones testified that a total of
70 bargaining unit employees worked at the Selma plant
during its brief operation ( 1:23, 159). Presumably that
number counts only the regular employees . Supervisor
James L. Holliday testified that when Mark began to
close it had 35 (regular) employees, plus 15 temporary
employees , working on the shop floor (1:137). When he
was hired on November 12, 1985, Castro testified, there
were some 24 nonsupervisory workers, and that number
increased (1:32-35). Castro was one of 15 to 18 welders
who worked under Holliday 's supervision (1:35, 137).
Jones testified that the last remaining employees, about
20, left at the October 1986 closing (2:94).
3. Case 23-RC-5290
Castro testified that in early January 1986 some of the
employees , unhappy over Mark 's changing of benefits,
appointed Castro to contact a union regarding represen-
tation . Castro contacted George Eichler , the secretary-
treasurer (G.C. Exh. la) of Teamsters Local 1110. Fol-
lowing an initial meeting between Castro and Eichler,
Eichler met with a group of 16 employees. At this Janu-
ary 1986 meeting all 16 employees , including Castro,
signed authorization cards for the Union . Castro thereaf-
ter passed out additional cards and union literature (1:37-
40; 2:12-14).
Apparently about early February 1986 the Union filed
an election petition in Case 23-RC-5290, for on Febru-
ary 18, 1986, the Regional Director for Region 232 ap-
I I designate General Counsel exhibits as G C Exh and Respondent
exhibits as R Exh.
2 In October 1987 the Board approved the General Counsel 's plan to
reorganize the Agency's field offices with Region 23 (Houston) being
abolished and Houston and San Antonio becoming resident offices within
465
proved the standard agreement by the parties for a
Board-conducted election in the following unit (G.C.
Exh. 2):
All full-time production, maintenance , quality con-
trol, warehouse shipping, and janitorial employees
employed by the Employer at its facilities located at
16435 I. H. 35 North, Selma, Texas, excluding all
other employees, office clerical, guards, watch per-
sons and supervisors as defined in the Act.
The election was conducted on March 4, 1986, with
Castro serving as the Union's observer (G.C. Exh. 2;
1:40). Of approximately 23 eligible voters, 21 cast ballots.
The Union won by a vote of 12 to 9 (G.C. Exh. 2). Mark
filed timely objections and a hearing on the objections
was held on June 10, 12, and 13, 1986, in San Antonio,
Texas, before Hearing Officer Javier R. Gonzalez. Gon-
zalez issued his report on July 9, 1986, recommending to
the Board that the election be set aside and a second
election directed because Castro, as an agent of the
Union, had threatened two employees with loss of their
jobs if the Union won the election (G.C. Exh. 2).
In its May 15, 1987 decision (G.C. Exh. 3), not pub-
lished in the Board 's bound volumes, the Board adopted
the hearing officer's findings and recommendations
. exceIt we find objectionable Castro's threats
made to employees (including at least Burns and
Butzirus) that, if the Petitioner won the election,
nonmembers would not receive the same level of
representation as members.2
8 [Case citations omitted .] We do not pass on the hearing offi-
cer's finding objectionable Castro 's threat to have Robert Ttmke's
and Mark Butzirus ' jobs if the Petitioner won the election
Castro did not testify before Gonzalez concerning
either objection (G.C. Exh. 2 at 8, 13), although he did
testify as to other matters . The Board directed that a
second election be conducted whenever the Regional Di-
rector deems it appropriate to do so (G.C. Exh. 3 at 2).
As previously mentioned , and obviously unknown by the
Board , Respondent's Selma plant had closed over 7
months earlier.
We can better understand the next topic, Castro's ter-
mination interview, if I summarize all the objections
Hearing Officer Gonzalez ruled on. This is so because
three of the four termination reasons refer to the objec-
tions . The six objections filed by Mark are listed at pages
3-4 of the report by Gonzalez. Stated in brief, they
allege that the Union and its agents:
1. Created a general atmosphere of fear.
2. Threatened employees that if they did not vote
for the Union or support the Union they would lose
their jobs.
Region 16 at Fort Worth 126 LRR 107 (Oct. 19, 1987) The actual
change occurred in 1988.
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Threatened employees that if they did not vote
for or support the Union they would be subject to
physical harm.
4. Threatened , coerced , and intimidated employ-
ees by injecting religious bias and prejudice into the
election campaign.
5. Threatened employees that if the Union won
the election and they did not join the Union they
would not be provided with representation by the
Union in connection with grievances they had
against the Employer.
6. (All of the above destroyed the laboratory
conditions for a free election.)
Gonzalez found Castro to be the Union's agent (G.C.
Exh. 2 at 6), and the Board , at footnote 1 of its May 15,
1987 decision , expressly adopted that finding (G.C. Exh.
3). Gonzalez recommended that Objections 1 and 6 be
overruled because "no other specific acts" referred to
those objections (G.C. Exh. 2 at 13). Mark did not
except to this finding (Board decision , G.C. Exh. 3, at fn.
1).
Objection 3 is based on testimony by employee Barry
Burns that 2 to 3 weeks before the election Castro, over
the telephone , told Burns that 20 guys were going to
kick Burns' ass if Burns did not vote for the Union.
Castro testified he told Burns that 20 guys would be
against Burns. In a prehearing affidavit Burns recited the
version Castro gave before Gonzalez . At the objections
hearing Burns said he viewed the two versions as the
same . Gonzalez credited Castro, found that no threat oc-
curred , and recommended that Objection 3 be overruled
(G.C. Exh. 2 at 10-11).
Respecting Objection 4, the religion issue, Hearing Of-
ficer Gonzalez wrote as follows (G.C. Exh. 2 at 11-12):
It was undisputed that employees Rafael Chapa
and Phillip Swanson were recognized as being very
religious.
Castro testified that he called Chapa at his home.
During the conversation he quoted from the bible a
comment about if someone asks for your shirt you
not only give your shirt but your coat as well.
Castro also stated that , about two weeks before
the election , he called Swanson and talked about
the quote and told him to cast a blank ballot. He in-
vited Swanson to see a religious movie, Jesus of
Narzareth , at his home . Swanson declined the invi-
tation . According to Swanson , Castro also men-
tioned the same biblical quote at work and asked
him to cast a blank ballot.
Castro also stated that he had invited Jamie Mar-
tinez, International Union of Electrical Workers
Local Vice-President , an ordained minister , to speak
at the meeting held on June 3. Martinez did attend
the meeting and did speak . He handed out religious
pamphlets.
Swanson was the Employer observer in the elec-
tion . Chapa did not vote . It is undisputed that
Chapa's religious beliefs played a part in his deci-
sion not to vote.
The Employer asserts that the injection of reli-
gion into the campaign is synonymous with the in-
jection of racial prejudices . The Board in Sewell
Manufacturing Company, 138 NLRB 66 (1962) es-
tablished a test in setting aside elections based on
appeals made to racial prejudice . The election is set
aside when either party seeks to overemphasize or
"exacerbate" racial feelings by irrelevant, inflamma-
tory appeals . In the instant case the appeals did not
emphasize religious bias but rather were appeals for
employees to consider their own religion in making
their decisions about the election . Under these cir-
cumstances , the religious issue was not overempha-
sized.
I therefore recommend that the Employer's Ob-
jection No. 4 be overruled.
Earlier I wrote that Gonzalez had found merit to Ob-
jection 2 and that the Board , sustaining Objection 5, ex-
pressly did not pass on Objection 2. Objection 2, as we
shall see, is one of the discharge reasons. Respecting Ob-
jection 2 , Gonzalez wrote (G.C. Exh. 2 at 6-8):
This objection refers to an alleged threat by
Castro concerning two employees.
Barry Burns stated that on March 3, he attended
a union meeting held at Ruben 's, a local bar and
restaurant . At this meeting Castro told him that if
the Union was voted in, that he would have
"Rocky" (Robert Timke) and Mark 's (Butzirus)
jobs. There was no conclusive evidence that anyone
heard the comment. Burns stated that employees Il-
defonzo Rodriguez, David Reyes and Ruben Marti-
nez were present when the comment was made but
did not think they heard it because Castro turned
away when he said it.
The next morning Burns told Timke about the
threat . Timke confirmed that Burns told him on
March 4, before voting that he and Mark would be
eliminated from the company . He did state that
Burns had not said who had made the statement.
Butzirus stated that Jim Holliday, a supervisor,
said that he heard from somebody else that if the
Union won the vote that he and Timke would no
longer have a job at Mark Industries. Holliday also
told him not to worry about it. He said he was told
this about 7:00 a.m. before voting . Butzirus asked
Timke if it was true and Timke said yes. Timke did
not remember talking to Butzirus about the state-
ment.
Timke stated that the threat did not affect the
way he voted but at the time he voted he believed
the threat might be true . Butzirus stated that he did
not know if Castro or the union could take their
jobs. Burns stated that he did not give any weight
to Castro 's statement and understood that Castro
did not have the authority to fire employees, but
also said that if the union came in Castro could
have some pull.
Castro did not testify concerning this allegation.
It is concluded based on the uncontradicted testi-
mony of Burns that Castro did make the threats. I
also conclude that the threat was circulated to at
MARK INDUSTRIES, INC.
least two other eligible employees , Timke and But-
zirus.
[Thirteen-line discussion of legal standard omit-
ted.] In the instant case the threat was circulated to
at least three eligible voters . The Union won the
election by a very slim margin . A change of only
two votes could have affected the results of the
election . I can only conclude that the threat that if
the union won Castro would have Timke 's and But-
zirus' jobs would reasonably tend to interfere with
the employees ' free and uncoerced choice in this
election.
Accordingly , I recommend that Objection No. 2
be sustained.
4. Mark discharges Joseph M . Castro
There is no dispute that on July 16, 1986 , Respondent
summoned Castro to the office where Jones fired him in
the presence of Personnel Manager Ken Euler . Jones tes-
tified that the discharge decision was made a day or two
earlier by Jones, Euler, and Plant Manager Dick Levan-
dowski in consultation with Attorney Shelton E . Padgett
(1:13-14). Because Euler had a cold and laryngitis on
July 16, Jones conducted the discharge interview (1:13;
2:71). Jones and Castro testified about the discharge
interview at both the original hearing, before Judge Ger-
shuny, and at this remand hearing before me. Euler did
not testify at either hearing . Before me Jones testified
that Euler could not be located (2:72).
At the discharge interview Jones gave Castro a copy
of the July 9 report (G.C. Exh. 2) by Hearing Officer
Gonzalez to read . After Castro read the report, Jones
told Castro that "for those reasons you are terminated
immediately." Jones added that Castro's conduct violated
company policy as set forth in the Company's handbook
(1:69; 2:22). There is a dispute over whether Jones or
Euler gave, or even showed , Castro a list of four reasons
for the termination . At the first hearing Jones claimed it
to be so (1:16-17), although before me he testified the list
was stapled to the back of July 9 report of Gonzalez
(2:72). Castro denied being shown or receiving a copy of
the list ( 1:70; 2:23, 40, 51). Castro also denies receiving,
at this meeting, a copy of the July 9 report to keep (2:23,
40, 51).
I credit Castro who, in general, testified before me
with a persuasive demeanor . Even so, I find it possible
that a slip of paper, with the four reasons , was stapled to
the back of the report Castro read but that Castro did
not see the stapled slip and Jones did not point it out.
The important fact is that such a list apparently existed
as is shown by subsequent events . On July 30, 1986,
Castro filed a claim (G.C. Exh. 4) for unemployment
compensation with the Texas Employment Commission
(TEC).3 When Personnel Manager Euler , on behalf of
Mark, filed Mark's August 20 protest of Castro' s unem-
ployment benefits claim , he attached three items and
stated (G.C. Exh. 4):
8 Because he found work immediately (apparently drawing no unem-
ployment benefits), Castro could not recall having applied (1:91; 2:37-39).
467
Supporting documentation attached . Violation of
work rules marked by check.
The first item , on a separate piece of paper , is the list
of reasons Jones referred to. It reads:
Your termination is based upon the following
acts of misconduct:
1) Threatening that employees would lose their
jobs if the union was voted in.
2) Threatening employees with physical harm if
the employees did not vote for the union.
3) Intimidating , coercing and harassing employ-
ees by making appeals to their religious beliefs and
prejudices in an attempt to persuade them to vote
for the union.
We are also concerned about your having operat-
ed a motor vehicle on Company property without a
valid current Texas driver's license.
At the hearing before Judge Gershuny, Jones testified
that the discharge meeting lasted less than 5 minutes,
that Castro was not asked for his version , and that nei-
ther Jones nor Euler went into the specifics of the listed
items with Castro (1:20-22).
The next item Euler attached (to his TEC protest)
consists of pages 14 and 15 from Mark 's employee hand-
book (R. Exh . 9) for the Selma plant (2:73). The printed
date appearing at the bottom of pages 14 and 15 reads:
TX 11-1-85. Castro acknowledges that he signed his re-
ceipt for a copy of the handbook earlier in his employ-
ment (1:95). A set of 9 numbered work rules occupies
the major portion of page 14. This set of 9 rules de-
scribes incidents (such as theft or fighting) that may
result in discharge without a warning . The preamble to
the next group of rules reads:
Infractions of the following rules will, depending on
the seriousness of the offense and all pertinent facts
and circumstances, result in disciplinary action, in-
cluding a verbal warning, suspension, or discharge.
This preamble is followed by 8 numbered rules. Rule
7, which has a check mark by it on this copy sent to the
TEC, reads : "(7) Harassing , threatening , intimidating or
coercing any other employee."
The third item Euler attached consists of pages 17 and
20 from Respondent 's California ( 1:89-90 ; 2:73, 80) hand-
book (R. Exh . 8) for employees . Offense number 26 is
checked . It bears a discharge penalty and reads:
Offense Penalty
26. Threatening, D
intimidating, fighting
or performing a
careless act which
results or may result
in personal
injury to another
employee or property
damage.
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Castro had never received a copy of the California book-
let, although he had seen and read a copy ( 1:90-91).
Before Judge Gershuny , Jones testified that Castro
was terminated for the reasons set forth on the list at-
tached to the protest (G.C. Exh. 4) Euler filed with the
Texas Employment Commission (1:25). The first three
discharge reasons on the list correspond generally to the
objections as follows:
Discharge Reason Objection
1 2
2 3
3 4
The fourth, and unnumbered , discharge reason (the
driver's license item) has no counterpart in the objec-
tions, although Jones testified that the topic , for some
unexplained reason, was mentioned at the objections
hearing (1:21).
5. The Board 's order remanding
In reaching his September 3, 1987 decision to dismiss
the complaint, Judge Gershuny , without making his own
credibility resolutions , relied on findings by Hearing Of-
ficer Gonzalez that Castro had in fact threatened em-
ployees . The Board found this to be reversible error in
view of Castro 's denial of the allegations at the hearing
before Judge Gershuny (G.C. Exh . 1(m) at 3). Remand-
ing for additional findings , the Board also directed that
the administrative law judge should analyze the case
under the following standards (Order at 4-6):
In remanding the case, we note that in consider-
ing whether alleged threats by Castro constitute
grounds on which his discharge may be found to be
lawful, the judge should consider first whether,
even if made by Castro , the threats are such that
the Respondent could lawfully discharge an em-
ployee for them . In this regard , we note that , pursu-
ant to such cases as Rio de Oro Uranium Mines, Inc.,
120 NLRB 91, 94 (1958), threats that employees
may be discharged are not necessarily objectionable
conduct even if made by a union agent, unless there
are circumstances under which the threatened em-
ployee might reasonably believe that the union
would have the power to carry out the threats. See
Baja's Place, 268 NLRB 868 (1984). Under another
line of cases, the Board has concluded that when an
employer seeks to discharge or discipline an em-
ployee for conduct occurring in the course of pro-
tected activity , the Board will balance the Section 7
rights of the employee against the employer's inter-
est in deterring the particular conduct to determine
if the protection of the Act was removed by the
employee's excesses in carrying out that activity.
See, e .g., The Kroger Co. d/b/a Brunswick Food and
Drug, 284 NLRB No. 78, slip op. 5-6 (June 30,
1987), enfd. mem. F.2d (11th Cir.
Sept . 15, 1988), and cases there cited . Thus, even if
Castro made the alleged threats, depending on the
circumstances, they may not be a lawful ground for
discharge. 3
Assuming the threats as understood by the Re-
spondent would be a lawful ground for discharge, it
is necessary-because they are alleged to have oc-
curred in the course of organizing activity-to ana-
lyze the incident under the rationale enunciated in
NLRB v. Burnup & Sims, Inc., 379 U. S. 21 (1964).
The Supreme Court there affirmed the Board's
ruling that Section 8(a)(1) of the Act is violated de-
spite the employer 's good faith if it is shown that an
employee was discharged for alleged misconduct
while engaged in a protected activity , and that the
employee was not in fact guilty of that misconduct.
Once it has been established that an employee is
engaged in union or protected activity, the burden
shifts to the employer to demonstrate an honest
belief that the employee was engaged in miscon-
duct. Once an employer establishes an honest belief
that the employee engaged in misconduct, the
burden shifts back to the General Counsel to prove
either that the employee did not in fact engage in
the misconduct4 or that his misconduct was not se-
rious enough to warrant discharge.5
The conduct that provides the fourth reason for
Castro's discharge alleged in the termination slip
(i.e., driving without a valid Texas driver's license)
did not occur in the course of Castro's union activi-
ty. Therefore, this purported reason for Castro's dis-
charge should be analyzed under Wright Line prin-
ciples.
8 In this connection , we note that the question whether or not
threats of discharge would constitute objectionable conduct will
not necessarily control the question whether the conduct could
constitute a lawful ground for discharge . Thus , for example, if one
employee assaulted another employee in an attempt to force him to
wear a union pin, an employer might lawfully discharge him for
the assault , even though there are circumstances under which the
assault might not constitute grounds for setting aside the election-
e.g., if the assaulter were not a union agent , there were hundreds
of unit employees in the unit , and no one other than the victim
knew of the assault
4 Magnolia Manor Nursing Home Inc, 284 NLRB No. 90 (June
30, 1987) (JD slip op at 11).
5 See Gem Urethane Corp., 284 NLRB No 122, slip op at 11
(July 27, 1987).
6 251 NLRB 1083 (1980 ), enfd 662 F.2d 899 (1st Cir 1981),
cert. denied 455 U S. 989 ( 1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 ( 1983).
6. The trial on remand-and Mark 's reasons for
discharging Castro
Earlier I described the items constituting the record.
Testifying at the first trial of this case during the General
Counsel 's case-in-chief were Norman E . Jones (called, in
effect, under Fed.R.Evid. 611(c) by the General Coun-
sel), Castro , and James L. Holliday, Castro's former su-
pervisor (called expressly under Fed.R . Evid . 611(c), at
1:139). During its case the Respondent called Jones4 and
4 Jones also represented the Respondent at the hearing . Although the
transcript does not list Jones as testifying at this point , Judge Gershuny
reminds Jones that he is under oath and on the witness stand before Jones
launches into what clearly is testimony ( 1.157, 166)
MARK INDUSTRIES, INC.
(impliedly under Fed.R . Evid . 611(c)) Castro . There was
no rebuttal stage.
Before me the parties, as I have mentioned , introduced
the record from Judge Gershuny 's hearing . The General
Counsel then called Castro (2:9) and rested (2:70). Re-
spondent Mark then called Jones, Castro, recalled Jones,
and rested (2:97-98). There was no rebuttal stage. The
additional exhibits offered are not substantive items. With
one possible exception , the testimony given before me,
aside from its necessary value for credibility purposes,
adds little of significance to the preexisting record.
The possible exception occurs in the testimony of
Jones . According to Jones, at the July 16, 1986 discharge
interview Personnel Manager Ken Euler, "in his broken
voice, said something about 'you've been warned."'
(2:74) Continuing , Jones testified that he had looked
through Castro's file some minutes earlier and had seen
"several things about safety ." Jones then concedes that
he does not think he mentioned anything about safety in
the discharge interview with Castro (2:74).
Respecting this exception I emphasize the "possible"
because it is not at all clear that Respondent Mark is
now seeking to add safety violations to its list of reasons
for terminating Castro . Jones never expressly stated that
before me, nor does he assert it in his (Mark's) posthear-
ing brief to me . It may be well to review how the matter
of safety violations arose in this case.
At the first trial the General Counsel introduced evi-
dence of several incidents (including safety), not alleged
in the complaint, solely as background to show knowl-
edge, animus , and disparity (1:45-48 , 128-129; G.C. Exh.
13 at 8 fn . 2, and 9-10). Respondent offered similar
items, such as reprimands and safety matters, to counter
the thrust of the General Counsel 's evidence . Citing
these matters (specifically including "refusal to follow
safety instruction") and exhibits in its July 31, 1987 brief
to Judge Gershuny , Respondent Mark asserted (G.C.
Exh. 14 at 2):
However, Mr. Castro was not terminated for the
above stated reasons but for the reasons as set forth
by the National Board , in part , and other reasons
the Corporation believed were for just cause. Ex-
hibit of General Counsel #4.
In its March 19, 1989 brief (G.C. Exh. 14) to me, Re-
spondent, generally reproducing its brief to Judge Ger-
shuny, omits the sentence just quoted . On the other
hand , Mark cites rules pertaining to safety violations and
refusal to do assigned work (a reference to an issue re-
garding overtime) and simply characterizes these as mat-
ters for which "Mr. Castro could have been terminated."
(G.C. Exh. 14 at 3.) (Emphasis added.)
In light of Respondent 's failure to expressly add safety
violations to the list of reasons for Castro 's discharge, the
clear and affirmative testimony of Jones that Mark gave
Castro the reasons he was terminated (1:14), and Jones'
testimony that Castro "was terminated for the reasons as
stated on General Counsel's 4," (1:25), I find that the
only purported reasons Respondent relied on in discharg-
ing Joseph M. Castro were the four (quoted earlier) con-
tained on the list Personnel Manager Euler attached to
469
Mark 's protest (G.C. Exh. 4) of Castro 's claim for unem-
ployment compensation . In any event, I do not credit
Jones because his demeanor before me was unfavorable.
Thus, I do not believe Jones' testimony that Personnel
Manager Euler told Castro , at the July 16 discharge
meeting , that Castro had been warned . I find it was not
said . Even if I were to find it logical or likely that any
prior warnings to Castro over safety or other matters
would have been relied on by Respondent in its decision
to discharge Castro, an administrative law judge is not at
liberty to supply, as a reason , that which the employer
itself did not see fit to advance . Inland Steel Co., 257
NLRB 65 , 67-68 (1981), enfd . mem. 681 F . 2d 819 (7th
Cir. 1982). The reasons Respondent Mark relied on were,
I find , the four it advanced by listing on the sheet of
paper it submitted with its protest to the Texas Employ-
ment Commission.
7. Attachments to Respondent 's brief deemed
stricken
In making its argument against Castro's credibility the
Respondent , by Norman E. Jones, attaches to its brief,
"for the rejected file," Respondent 's Exhibits 14(c) and
14(d). These documents are two envelopes addressed
certified mail to Castro from Mark . With copies of
return receipts attached , they are marked either "re-
fused" or "return to sender." These documents relate to
Mark 's efforts to serve a subpoena (sent to separate ad-
dresses) on Castro seeking the production of Castro's
(Federal) income tax returns and W -2 forms for 1986 and
1987 (R. Exhs . 14a and 14b).5 Respondent 's purpose in
seeking the tax returns was to see whether Castro had
reported cash income from moonlighting work.6 The as-
serted relevance of this topic is that it would bear on
Castro's credibility-his honesty/truthfulness , or lack
thereof, depending on whether he reported the additional
income (2:46).'
Because the matter of whether outside income was re-
ported on Federal income tax returns is collateral to
credibility of the witnesses on the issues before me, I sus-
tained the General Counsel's objection and placed the
subpoenas, Respondent 's Exhibits 14a and 14b, in the re-
jected exhibits file (2 :46, 65-67). When Jones took the
witness stand before me he placed his own credibility in
issue . In fairness, therefore , if I were to inspect Castro's
tax returns to ascertain whether he cheated on his
income taxes, I also should inspect those of Jones. How-
The subpoena also requested any notes or statements Castro had
given the Union or the Board in this case. At the hearing Respondent
was furnished Castro's Board affidavit of 8-25-86, apparently the same
affidavit furnished at the original unfair labor practice trial (2:33, 1.76).
Castro apparently furnished no statements to the Union and testified he
had no documents pertaining to the case (2.64-65)
a Castro testified that he did some contract welding (1:51, 92) and, in
the summers, landscaping and mowing lawns (2.46)
7 Respondent initially sought to explore whether Castro was behind on
his child support payments based on information Jones supposedly had
that Castro was delinquent in them, but Respondent dropped that line of
inquiry (2:26-28 ) As Jones expressed his purpose : "I'm looking for a
character because we have to talk about this man, does he lie or (not), or
tell the truth or tell what's true ." (2:27) And: "he has said he didn't
threaten people , yet the Board agent found that he did threaten people
So there's conflict there." (2.27-28.)
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever, Jones did not offer to produce his own income tax
returns.
Respondent 's Exhibits 14(c) and 14(d), as earlier noted,
are photocopies of two envelopes (with copies of return
receipts attached) purporting to be those containing the
two identical subpoenas (R. Exhs . 14a and 14b) which
Respondent sought to serve on Castro . At the hearing
Jones represented that the envelopes and return receipts
(R. Exhs . 14c and 14d) were in a separate briefcase
which Jones apparently did not receive from the airline
on his arrival in San Antonio . He sought to hold the
record open to place the items in the rejected exhibits
file on the basis of Castro's (lack of) credibility concern-
ing Castro 's failure to accept or claim the letters (2:59-
61, 67-68).
I ruled that I would not leave the record open for that
purpose because Castro would not be able to see the
items and give testimony about them .8 Because the case
was on remand , and desiring to permit the parties full
leeway to develop their positions , I stated I would enter-
tain a motion for a continuance in order that we could
reassemble to take the additional evidence . When Jones
said he would send the envelopes to me I specifically
told him I did not want them sent to me and that I
would not hold the record open for that purpose. Jones
declined the express opportunity to seek a continuance
(2:68-69, 97-98).
Respondent did not pause to file a motion reurging its
position and seeking leave to submit the documents, nor
does it move that the hearing be reopened in order that
all parties have the opportunity to address the matter. In
these circumstances the conduct of Jones in attaching
photocopies of the envelopes and return receipts (R.
Exh.s 14c and 14d) to Respondent 's brief is highly im-
proper.
The General Counsel apparently offered whatever
knowledge the Government had concerning Castro's
correct mailing address (2:60-61 ). Respondent apparently
did not seek the General Counsel's assistance, if neces-
sary, in obtaining personal service through the U. S. Mar-
shal's office . Finally, Respondent apparently did not seek
the assistance of the General Counsel immediately before
the hearing to persuade Castro to accept service and to
bring his tax returns to the hearing.
In any event , the envelopes would prove nothing more
than that Castro declined to accept a certified envelope
which, it turns out, apparently contained a subpoena
duces tecum seeking tax returns and statements. Castro's
refusal to accept the certified letter from the company
that fired him has no relevance to his credibility. As the
envelopes do not bear a statement asserting "subpoena
inside," it is immaterial that Castro testified , early in his
cross-examination by Respondent, that he had not re-
ceived a subpoena from Mark to bring certain documents
(2:29). I shall consider the documents (R. Exh.s 14c and
14d) attached to Respondent 's brief as stricken , not part
of the record , and not part of the rejected exhibits file.
8 Castro testified that one of the addresses (3311 Capitol Avenue) is his
father's and that his father said he had refused to accept the certified
letter (2:67). Similarly, Castro refused to accept the letter addressed to
him at his own 8819 Five Palms address (2 30, 67)
B. The Lawfulness of Discharge Grounds 1, 2, and 3
1. Introduction
Pursuant to the Board's first instruction , I now turn to
the circumstances surrounding Castro's alleged threats.
Mark offered no evidence , either at the original trial or
on remand , concerning the surrounding circumstances.
Mark relies solely on the findings of Hearing Officer
Gonzalez in arguing that the alleged threats constitute
lawful grounds for discharge . In the Government 's brief,
the General Counsel does not address the circumstances
under the first instruction topic of the remand.
Supervisor Holliday briefly testified that on a Monday
(date and timeframe not specified ) three employees came
to him and said Castro, over the telephone over the
weekend, had threatened to kick their asses. Holliday tes-
tified he had heard rumors others were going to do the
same to Castro . Holliday told his two leadmen that he
did not want any fights . He told Castro that tempers
were getting overheated and he would not have anyone
making threats . Castro denied making any threats and he
said he would tell the three he made none . Holliday re-
ceived no reports afterwards from his two leadmen that
any employee was getting "totally out of hand" (1:145-
148).
The only factual description concerning the circum-
stances is that which appears in the Gonzalez report.
Earlier I quoted in full from that report concerning Ob-
jection 2 (discharge ground 1), the threat expressed to
Barry Burns that he, Castro , would "have the jobs" of
Robert "Rocky" Timke and Mark Butzirus if the Union
were voted in. I also quoted in full from the report con-
cerning Objection 4, the religion issue (discharge ground
3). That leaves discharge ground 2, the threat of physical
harm-Objection 3.
Respecting Objection 3, Gonzalez wrote (G.C. Exh. 2
at 9-10):
Objection No. 3 refers to an alleged threat made
by Castro to Burns of physical harm.
Burns stated that two to three weeks before the
election he got a message that Castro had called his
home . He was in Ildefonzo Rodriguez ' apartment
drinking . Burns then called Castro at Ruben's Bar
where Castro was also drinking . Burns could not
recall what was said during the telephone conversa-
tion except that Castro said "twenty guys were
going to kick my [Burn 's] ass if I didn't vote for the
Union," after which Burns hung up.
Castro stated that he had told Burns that twenty
guys were going to be against you. Rodriguez
stated that he was trying to listen on the phone
when Burns was talking to Castro and that he did
not hear any threat . He said that after the call
Burns said something about some people coming
after them.
The next day Burns told Lex Lynch and Timke
about the alleged threat near a break table and
others may have heard . Timke confirmed that
Burns told him Castro called him the night before
and said that twenty men were going to kick his ass
MARK INDUSTRIES, INC.
if he wouldn't vote for the Union. Timke said Jim
Holliday, Lynch and Butzirus were at the table.
Butzirus also confirmed the conversation at the
table. Neither Lynch nor Holliday testified.
Burns stated that during that day or the next at
work, Castro called him over and told him "you
can't be saying that kind of shit, you are going to
get me in trouble." Burns told him yes you did [say
that] and Castro said, No.
Castro stated that Holliday told him that he had
threatened Burns. Castro denied it. Castro then
talked to Burns about it. Burns told him that Castro
had said on the phone that if he didn't join the
Union there were going to be twenty guys out there
to kick his ass. Castro said he didn't. Castro told
him that he had said that twenty guys were going
to be against him.
Rodriguez stated that he saw Castro and Burns
talking but did not hear what they were saying.
Timke also saw Castro talking to Burns apparently,
according to Timke, trying to apologize.
Burns stated at the hearing that he had changed
his statement in an affidavit to the Board. He had
first stated that Castro had told him that twenty
guys would kick his ass . In the Board affidavit he
stated that Castro only told him that twenty guys
would be against him. During his testimony at the
hearing he stated that both the earlier statement and
the Board Affidavit were correct . He then stated
that both statements meant the same thing to him.
As a result of Burns' contradictions of the event, I
credit Castro.
I have found that the alleged threat made by
Castro to Burns did not occur. Castro merely told
Burns that if he did not support the Union that
twenty guys would be against him. That statement
is not a threat of bodily or physical harm. It was
constructively disavowed when Castro told Burns
that he had not made the alleged threat . Rodriguez
and Timke saw Castro talk to Burns, apparently
when Castro denied that he had made the threat.
Castro also told Holliday and Rodriguez that he
had not made the threat.
2. Discussion
a. Circumstances
Assuming that Castro made the threats attributed to
him by employee Barry Burns in Objections 2 (to "get"
the jobs of employees Timke and Butzirus ) and 3 (20
guys would kick Burns ' ass if he did not vote for the
Union), the circumstances do not appear to neutralize the
statements . Respecting the jobs threat , Castro never ac-
knowledged the threat . He denied making it . A denial
does not provide the reassurance that would flow from a
confession , an acknowledgement it was wrong, and a
promise of no future threats or attempts to affect the jobs
of employees . Castro's status as an agent of the Union
caused employees to suspect he possibly would adversely
affect their jobs through an established bargaining agent.
Thus, I find that the circumstances surrounding the
threats would not, as a matter of law, prevent Respond-
471
ent Mark from discharging Castro for the threats, if
made . Hearing Officer Gonzalez found that the physical
harm threat was not made.
Before leaving the subject of the threats described by
employee Burns, I should note that Burns did not testify
before me . The only weight that can be given to his de-
scription , therefore , is the very limited weight that can
be given to the findings of Hearing Officer Gonzalez.
Respecting the religion issue, I find Castro's alleged
conduct to be protected. Again, no witness testified
before me about the subject.
b. Balancing the interests
Respecting the matter of balancing the Section 7 rights
of Castro against Mark 's interest in deterring the conduct
to determine if the protection of the Act was removed
by the employee 's excesses in carrying out the activity
(order remanding at 4), the answers seem unclear. The
(assumed) job-loss threat occurred away from Mark's
premises . On the other hand , the company rules against
threats9 are not expressly restricted to occurrences at or
on Respondent 's premises, property, or functions.
The parties did not focus on this question. The only
evidence concerning it is an indirect reference by Super-
visor Holliday in testifying before Judge Gershuny about
an incident one day at the plant between a nonemployee
(an employee of a caterer) and welder James Owens.
Claiming Owens owed him money , a claim Owens
denied , the caterer employee pushed Owens against the
wall. Owens did not fight back and tried to back away.
Holliday testified Owens was not disciplined for fighting
on company property because Owens was passive in the
incident (1:139-140, 150). Despite this description, the
evidence is insufficient to determine company policy on
the issue. Objectively, it would seem that Respondent
Mark might well interpret its rules against threats to
apply when a threat, although uttered away from compa-
ny premises, property , or functions , relates to the work
relationship . On that objective basis, Mark would have a
superior interest in deterring threats such as job loss.
That brings us to consider the second instructed topic.
C. The Alleged Threats
1. The Burnup & Sims analysis
a. Introduction
As the Board wrote in its remand order, quoted earli-
er, once it has been established that an employee is en-
gaged in union or protected activity, t 0 the burden shifts
to the employer to demonstrate it held an honest belief
that the employee was engaged in misconduct when it
disciplines the employee for that misconduct . If the em-
ployer so demonstrates , the burden shifts back to the
9 Rule 7 from R Exh 9 at 15 (the Texas rules ) and rule 26 from R
Exh 8 at 20 (the California rules), quoted earlier in conjunction with
Castro 's discharge and Mark's protest of his claim for unemployment
compensation.
10 It is undisputed that the alleged threats , if made, occurred in the
course of the union organizing and were directly associated with Castro's
efforts to persuade employees to support the Union
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel to prove either that the employee did
not in fact engage in the misconduct or that his miscon-
duct was not serious enough to warrant discharge
(remand order at 5).
b. The issue of Mark's "honest belief'
Mark does not directly address the "honest belief"
question in its posthearing brief to me. As with its brief
to Judge Gershuny , Respondent again relies on the find-
ings in the Gonzalez report, recites rules for which
Castro "could have been terminated," and attacks Cas-
tro's credibility by impliedly arguing that the General
Counsel failed to prove that Castro did not utter the
threats or that Castro 's conduct was not serious enough
to warrant his discharge.
As Jones admits , at the discharge interview Mark did
not ask Castro for his version of the facts ( 1:22). Howev-
er, Castro was present and testified regarding some of
the matters before Hearing Officer Gonzalez but, as the
Gonzalez report reflects, Castro did not testify about the
job loss threat (G.C. Exh . 2 at 8). Castro disputed the
"kick ass" threat (Objection 3) and , as earlier noted,
Hearing Officer Gonzalez found that Castro had simply
told Barry Burns that 20 guys would be against Burns if
he did not vote for the Union . Even so, that statement
itself is apparently the "threat " Mark relied on by includ-
ing the essential element of Objection 3 (threat of physi-
cal harm) as reason 2 (threat of physical harm) on the
discharge list. In the absence of testimony or other evi-
dence by Mark indicating that Mark relied on the allega-
tion rather than the statement as found by Hearing Offi-
cer Gonzalez , t t I find that Respondent 's listed reason 2
refers to the latter rather than the former. Indeed, recall
that at the discharge interview Jones expressly relied on
the report of Hearing Officer Gonzalez.
Respecting listed reason 2, I find Mark held an honest
belief Castro made the "20 guys will be against you"
statement . Castro admits the remark and it is so found in
the Gonzalez report . Is the remark misconduct? I find it
is not . If it were, employees would jeopardize their jobs
merely by expressing opposition to employees holding
different views . Accordingly , I find that Mark's listed
reason 2 was not available to be used by Mark as a
reason for discharging Castro because the reason actually
refers to protected conduct.
Mark's "honest belief" that Castro made the remark is
an element of the Burnup & Sims rationale rather than a
step in motive analysis . Indeed , if I were analyzing
Mark 's motive, I would find that Mark seized on this
ground , as the others , as a pretext to mask its true reason
for discharging Castro-his protected activities in sup-
port of the Union.
For reasons similar to those respecting ground 2, I find
listed reason 3 (the religion issue) to be unavailable to
Mark notwithstanding Mark 's "honest belief" Castro
made appeals to the religious beliefs of employees Rafael
Chapa and Phillip Swanson . The appeals by Castro were
rather subtle and not at all inflammatory . Once again,
this conduct by Castro was merely protected activity
" Thus, the inquiry necessarily must focus on the remark as found by
Gonzalez rather than on the objection as filed by Mark.
available to either side in an election campaign . Accord-
ingly, I find that listed reason 3 was unavailable to Mark
as a matter of law.
Turning now to listed reason 1, the threat of job loss, I
find Respondent Mark did have an honest belief that
Castro in fact made the job loss threat. Although the
Union was represented by counsel at the objections hear-
ing (1:22-23), Castro was not asked about this allegation.
Even though the evidence showed that at the plant
Castro denied making the threat , Hearing Officer Gonza-
lez found that Castro did make the threat.
In making my finding Mark held an honest belief
Castro had made the threat , I recognize that, as to evi-
dence of the threat , Respondent is relying solely on the
evidence presented to Hearing Officer Gonzalez. Former
employee Barry Burns, for example, did not testify
before me. As the Board notes, however, a hearing offi-
cer's findings , although not binding on an administrative
law judge, are entitled to some weight. (Remand order at
3, fn. 2.)
c. The General Counsel failed to prove that Castro did
not make the job loss threat
The next question is whether the General Counsel
proved that Castro did not make the threat . Before Judge
Gershuny, Castro denied threatening any employee
either with loss of his job if the Union was voted in or
with physical harm (1:70). He also denied "harassing any
employees about their religious beliefs ." ( 1:70)
Before me Castro testified he never told employees
that they would lose their jobs if the Union were voted
in, never told employees that they would be physically
harmed if the employees did not vote for the Union,
never appealed to the religious beliefs or prejudices of
employees in an attempt to persuade them to vote for the
Union, and did not threaten Barry Burns (2:23-24, 48). If
I believed Castro, specifically as to the job loss threat, I
would find that sufficient to conclude that the General
Counsel had met the Government's burden of proving
the misconduct did not occur . However, on this aspect
of the case I do not believe Castro.
Aside from Castro's demeanor being unfavorable re-
specting his denial , I note the following which reflects
adversely on his credibility . When Mark 's representative,
Norman E. Jones, began Respondent 's cross-examination
of Castro , Jones asked whether Castro recently had con-
versed with the former Mrs. Castro about a subpoena
Mark had sent to her. "No," answered Castro (2:25). It
later developed that Castro indeed had conversed to a
limited extent with his former wife about the subpoena.
Thus, Castro testified that he answered that way because
when his former wife showed him the subpoena and
asked him what to do he simply told her, "I don't
know," and nothing more (2:25).
I find the foregoing subpoena episode relevant as to
credibility for this reason. It demonstrates that Castro
tends to shave meanings very finely rather than squarely
addressing the substance of an inquiry . Castro struck me
as disingenuous on this . I do not trust or credit his denial
of the job loss threat . Accordingly, I find that the Gen-
MARK INDUSTRIES, INC.
eral Counsel failed to show that Castro did not make the
threat.
d. The seriousness issue
(1) Introduction
The last question in this series is whether the General
Counsel demonstrated that Castro's misconduct in
making the job loss threat was not serious enough to
warrant discharge. (Counsel do not address this issue in
their posthearing briefs .) First, not every act of miscon-
duct in the course of protected activities automatically
warrants discipline . Electrical Workers IBEW Local 1106
(General Telephone Co.), 251 NLRB 737, 739, 740 (1980),
enfd . mem. 672 F.2d 895 (D.C. Cir. 1981). The miscon-
duct must be sufficiently serious . Gem Urethane Corp.,
284 NLRB 1349 at 1352 ( 1987). The test of seriousness is
that adopted by the Board in Clear Pine Moldings, 268
NLRB 1044 , 1045 (1984), enfd . mem. 765 F.2d 148 (9th
Cir. 1985): "whether the misconduct is such that, under
the circumstances existing , it may reasonably tend to
coerce or intimidate employees in the exercise of rights
protected under the Act." 268 NLRB at 1046.
However , an employer is not free to apply a double
standard . It may not tolerate behavior by employees who
refrain from union activities that is at least as serious, or
more serious than , the misconduct of the union support-
ers. Aztec Bus Lines, 289 NLRB 1021 at 1024 ( 1988). As
the Board recently wrote in Champ Corp., 291 NLRB
803 at 806 (1988):
Even in cases in which a striker has actually en-
gaged in misconduct and the employer denies rein-
statement on the grounds of that misconduct, an
employer may still violate Section 8(a)(3) and (1) of
the Act if that denial represents disparate treatment
of strikers as compared with nonstrikers or replace-
ments, i .e., if it is denying reinstatement to strikers
for conduct that is substantially the same as conduct
that it has tolerated on the part of employees who
have refrained from striking.
At all times the burden of proving discrimination is
that of the General Counsel . Gem Urethane , id. at 1352.
Also presumably a case of pretext may exist . The sugges-
tion is mentioned by the administrative law judge in Lou-
isiana-Pacific Corp., 282 NLRB 1303, 1308 fn. 15 (1987).
That raises the question of whether it may become ap-
propriate to apply the Wright Line12 analysis to Castro's
job loss threat.
Suppose, for discussion, the General Counsel estab-
lished prima facie that Respondent Mark was motivated
by Castro's union activities in deciding to fire Castro.
(The General Counsel's complaint so alleges, and the
complaint alleges a violation of Section 8(a)(3) and (1) of
the Act . The General Counsel argues that Respondent
seized on the threats as nothing more than a pretext to
rid itself of the Union 's leading supporter.) That would
satisfy the General Counsel's prima facie burden of prov-
12 251 NLRB 1083 (1980), enfd . 662 F. 2d 899 (1st Cir. 1981), approved
in NLRB Y Transportation Management Corp., 462 U.S 393 (1983)
473
ing discrimination . Does the analysis stop there because
the job loss threat was related to Castro 's protected or-
ganizing activities and therefore only the Burnup & Sims
standard applies? Is Mark able to show , if it can, that it
would have fired Castro even absent his union activities?
(The affirmative defense under Wright Line .) Is the af-
firmative defense concept , in such circumstances, bor-
rowed from the Wright Line analysis and applied in the
Burnup & Sims analysis? If pretext is a material argu-
ment, then surely the analysis must encompass the ques-
tion of whether Respondent could have fired Castro
even absent his union activities.
(2) Disparity
Although the General Counsel argues disparity, I find
none . James L. Holliday, Castro's supervisor , also super-
vised welder James Owens . Holliday described Owens as
a young man with a short temper . Around the spring of
198613 leadman Mark Butzirus came to Holliday and, ap-
parently, reported that Owens had threatened to kick
Butzirus ' ass. Holliday orally reprimanded Owens for
this . This was not the first threat by Owens, for Holliday
testified Owens was not given a reprimand despite re-
ports of at least two or three such threats to employees
(1:141-144). Respondent 's record of written warnings
issued confirms this inasmuch as Owens is not listed (R.
Exh. 13).
However, Holliday personally handled the "kick ass"
allegation against Castro in a similar manner . Thus, he
told Castro he did not want any threats being made, and
he instructed his two lead persons to seek to put a
damper on emotions (1:147-148). Bypassing Holliday,
Respondent included this allegation as item 2 on its list
of reasons for discharging Castro even though Hearing
Officer Gonzalez found that Castro's statement was
simply "20 guys were going to be against you." More-
over, the General Counsel failed to prove that Owens
was not an open supporter of the Union or that Mark
otherwise believed Owens to be neutral or opposed to
the Union . Accordingly, no disparity is shown. On the
other hand , Respondent 's bypassing of Supervisor Holli-
day tends to show an unlawful motive.
(3) Conclusion
Earlier I found that the nature of the job loss threat
was serious enough to justify , from an objective stand-
point, discipline up to discharge . Finding no disparity
treatment by Mark , and viewing Castro's job loss threat
as serious , I find that the General Counsel has failed to
carry the Government 's burden under Burnup & Sims .
2. Analysis of Mark's motive
a. Introduction
I turn now to the General Counsel 's remaining conten-
tion-that Castro's discharge was pretextual.
Mark, as I have found , honestly believed Castro made
the job loss threat , and the General Counsel failed to
13 Holliday could not specify the timeframe other than as possibly
before or after the election of March 3 , 1986 (1.141)
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prove that Castro did not make the threat. The General
Counsel argues that the reasons advanced by Respondent
are pretextual (Br. at 6). Thus, the General Counsel also
relies here on its 8(a)(3) allegation alleging a discrimina-
tory motive . 14 I address the motivation issue with the
usual analysis called for by Wright Line, 251 NLRB 1083
(1980).
b. The General Counsel's prima facie case
The record abounds with evidence respecting Castro's
extensive activities as the leading union adherent as well
as of Respondent 's knowledge concerning Castro's
prominent role. Indeed , as James L. Holliday, Castro's
supervisor, testified at the first trial, the supervisors knew
Castro was active with the Union (1:134).
Although there is no evidence of antiunion animus di-
rected specifically at Castro (and no allegations of inde-
pendent violations of Sec . 8(a)(1) of the Act ), Respond-
ent Mark made it clear to employees that it opposed
unionization of its Selma plant . Thus, about 3 weeks
before the March 4, 1986 election Plant Manager Dick
Levandowski , in Holliday 's presence, told Castro that
Mark did not want a union ( 1:41-45). The testimony was
not disputed . Such general opposition has been held to
constitute animus . Holo-Krome Co., 293 NLRB 594, 595
fn. 6 (1989).
At a group meeting of assembled employees the day
before the election Ralph L. Thompson, then the person-
nel manager, and Levandowski spoke against unioniza-
tion. Castro stood and spoke out for the Union. Thomp-
son responded with some more remarks , including a
statement that if the Union were voted in that it would
institute a whole new game and with wages starting at
(the Federal) minimum. Castro said Thompson was
wrong and was lying to the employees, and that bargain-
ing would start with employees ' wage rates being at
their current level (1:46-48; 2:18-19). Castro's testimony
stands unrebutted.
Before the election Castro had never been reprimand-
ed (1:49). Not long after the election Personnel Manager
Thompson personally undertook to issue reprimands to
Castro. The first, dated April 21, 1986 (G.C. Exh. 5),
was for allegedly refusing to work overtime the previous
Friday, April 18 (1:50). Actually Castro had merely de-
clined Supervisor Holliday's request to work overtime
on the express understanding that Holliday would turn in
his. overtime list showing Castro unavailable . Holliday
expressly assured Castro he would not get in trouble
(1:51-52, 120, 131). Before the election Castro similarly
had declined to work overtime , in the absence of an
order to do so, and had not been reprimanded (1:127-
128, 130-131). On April 2, 1986, Thompson personally
issued Castro a written reprimand for "refusing" to work
14 As the Board notes in its remand order at 5, the Supreme Court's
decision in Burnup & Sims, 379 U. S. 21 (1964), turned on the Court's in-
terpretation and application of Sec . 8(a)(1) of the Act. The complaint also
alleges that Castro 's July 16 , 1986 discharge violated Sec . 8(a)(3) of the
Act.
overtime. When Castro, later that day, complained to
Holliday about it, Holliday said he knew nothing about
the reprimand (1:52-53).
A week later Thompson issued Castro another written
warning , dated April 28 (G.C. Exh. 6). This one was for
failure on April 24 to wear safety glasses while grinding
(1:57). Castro testified at the original hearing concerning
why he was not wearing safety glasses on that occasion.
His explanation is based on the idea that the particular
material would not flake or chip. The relevant point,
however, is that Respondent ignored others it observed
doing this. When Castro pointed this out to Holliday and
asked why he was being picked on, Holliday did not
answer (1:124-127). I find that Respondent , through Per-
sonnel Manager Thompson , bypassed Castro's supervisor
in order to implement directly a program to single out
Castro for discriminatory treatment . Respondent 's unan-
nounced object, I find, was to lay the procedural
groundwork, in the form of written warnings (even over-
riding , in the overtime instance , Supervisor Holliday's as-
surance to Castro that there would be no problem), for
discharging Castro. Mark 's reason for its discrimination
against Castro was, I find , to retaliate against him for Re-
spondent's surprise loss in the election , ' s and to elimi-
nate his presence in the event Mark could have the elec-
tion set aside and a second election directed.
I shall postpone discussion of whether Respondent car-
ried its burden of proving, as its affirmative defense, that
it would have fired Castro even absent his union activi-
ties, until I discuss Mark's listed reason 4-the driver's li-
cense issue.
D. The Driver's License Issue
1. Facts
Mark 's fourth and unnumbered item , expressed as a
concern rather than as a numbered reason , reads:
We are also concerned about your having operated
a motor vehicle on Company property without a
valid current Texas drivers license.
First, neither of the rules checked by Personnel Man-
ager Euler in his August 20, 1986 protest submission
(G.C. Exh. 4) to the Texas Employment Commission re-
quires an employee to have a valid Texas driver's license
if he drives his private car onto Mark's property. Nor is
there any specific reference in all of Respondent 's Cali-
fornia rules (R. Exh. 8) or its Texas work rules (R. Exh.
9). Broadly read , perhaps some other rule could be inter-
preted to apply, but Respondent has not indicated any.
Second , Mark 's safety rules (R. Exh . 7) pertain , in this
connection, only to company vehicles , and even then
merely provide : "If you are authorized to operate plant
vehicles, abide by all traffic regulations."
16 Before the election Mark was confident a majority of the employees
would vote against the Union . Supervisor Holliday so testified (1:35).
MARK INDUSTRIES, INC. 475
Third, the driver' s license topic somehow arose (the
context is not adequately explained in the record) at the
June 1986 objections hearing ( 1:21, Jones; 1 :113, Castro).
Jones testified that lack of a driver's license "causes
problems" (unspecified) respecting insurance . In the next
breath , Jones conceded that Castro was not required to
operate a vehicle as part of his welding job (1:21). Castro
confirms he was not so required (1:70; 2:24). At no point,
either before Judge Gershuny or before me, did Jones
flatly say that Castro was fired , in part, because he did
not have a valid Texas driver's license.
Fourth, although Castro concedes he did not have a
valid license during that timeframe (1:113, 115; 2:24), at
no time did anyone at Mark tell him he should or must
obtain one (1:71; 114-115; 2:24-25). Fifth, Respondent
does not rely on this ground either in its brief to Judge
Gershuny (G.C. Exh. 14) or in its posthearing brief to
me.
2. The General Counsel 's prima facie case
As the Board directed in its remand order of 6 (G.C.
Exh. lm), the driver's license issue must be analyzed
under the principles of Wright Line, 251 NLRB 1083
(1980), enfd . 662 F.2d 899 (1st Cir. 1981), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
I already have described Respondent 's conceded
knowledge of Castro's active and open support of the
Union , Respondent's opposition to unionization general-
ly, and its retaliation against Castro beginning not long
after the March 1986 election . Those findings apply
equally here.
Respondent never at any point expressly describes its
"concern" over Castro's lack of a valid driver 's license
as one reason for which it specifically discharged Castro.
To the extent it may contend it did so, I find the reason
nothing more than a makeweight. More than that, it con-
stitutes an overreaching . This stretching out by Respond-
ent to grasp for any basis, however illogical , to justify
Castro's discharge merely reflects that Respondent had a
different motive-an unlawful one-for discharging
Castro. I so find , and I therefore find that the driver's
license "concern" is a tainted pretext which Mark includ-
ed on the list in an attempt to buttress its unlawful
motive of eliminating from its midst the Union's pivotal
leader-Joseph M. Castro.
Thus, I find that the General Counsel has established
prima facie that Castro's union activities were a motivat-
ing reason for Respondent 's decision to discharge him.
The remaining question is whether Respondent carried
its affirmative burden of demonstrating it would have
fired Castro even in the absence of his union activities.
E. Respondent 's Affirmative Defense
1. The legal standard
Under Wright Line, once the General Counsel estab-
lishes a prima facie case, the burden shifts to the Em-
ployer to demonstrate (that is, to persuade as to the af-
firmative defense) that it would have taken the same
action even in the absence of the protected conduct. 251
NLRB at 1089 . I find that Respondent Mark failed to
carry its burden.
2. The job loss threat
First, Jones never testified , and there is no direct evi-
dence indicating , that Respondent Mark would have
fired Castro as to one of the threat allegations rather
than in relying-as it does-on all three . Yet the only
threat allegation remaining intact is the job loss threat.
The preamble to Mark 's second group of rules allows
discretion in the nature of the discipline to be imposed
for "harassing , intimidating , threatening or coercing" in
violation of rule 7 (R. Exh . 9 at 14 , 15). Supervisor Hol-
liday described Respondent 's discipline policy as being,
in effect, one progressing from as many as three oral
warnings before even a written warning issued , depend-
ing on the circumstances (1:144). Absent Respondent's
retaliation campaign of warnings and other actions
against Castro beginning after the election, Castro's
record would have been free of reprimands-as it was
before the election. In those circumstances it is not at all
certain that Mark, in the absence of Castro 's union ac-
tivities , would have fired him, rather than imposing some
lesser discipline , for his job loss threat . While serious, a
job loss threat is less serious than, say, a threat of vio-
lence or physical harm.
Second , in the absence of Respondent 's expressly as-
serting that it would have discharged Castro over the
job loss threat alone, I am not at liberty to find that it
would have done so even if I believed Mark would have
done so. Hicks Oils & Hicksgas, 293 NLRB 84 (1989).
Indeed, I certainly do not believe it would have done so
absent Castro's protected activities . 16 I find that Re-
spondent failed to carry its burden here.
There is no evidence and no indication to support a
finding that Mark would have fired Castro , absent his
protected activities , if the threat of job loss had related
to some personal dispute with employee Barry Burns
rather than to a union organizing campaign.
3. No driver's license
Similarly, there is no evidence Mark would have fired
Castro solely because of his lack of a current driver's li-
cense absent Castro's union activities . The points made in
discussing Respondent 's motive on this topic are equally
persuasive here. Thus, as a welder Castro had no job re-
quirement of holding a valid Texas driver's license. As
for Jones ' expression of concern about insurance, Jones
immediately admitted that Mark does not purchase insur-
ance for its employees ' private motor vehicles (1:21).
This is not to say that an employer could not have
such a concern or impose license and insurance require-
ments on its employees as a condition of their being able
to park their vehicles on company property. But there is
no evidence Mark had ever expressed such a concern to
16 The analysis here is complicated by the fact the threat is tied to the
union activities I must assume the threat in the framework of a personal
dispute between Castro and employee Barry Burns and then ask whether
Mark would have fired Castro because of a job loss threat uttered to
Burns as part of a personal dispute
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its employees here . Respondent has failed to carry its
burden of showing that it would have fired Castro for
his lack of a valid driver 's license even in the absence of
his union activities.
CONCLUSIONS OF LAW
1. Respondent Mark Industries, Inc. is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Joseph M. Castro on July 16, 1986.
4. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The Respondent having discriminatorily discharged
employee Joseph M . Castro on July 16 , 1986, it ordinari-
ly would have to offer him reinstatement as well as make
him whole . Because Mark has closed its Selma, Texas
operation, neither a notice posting nor a reinstatement
order is appropriate . There is no evidence Mark plans to
reopen its Texas operation , nor is there any evidence
Mark offered its Texas employees an opportunity to
transfer to its California operation or to be placed on a
preferential hiring list there . Other than requesting a
standard order requiring reinstatement , backpay, and
posting of notices (Br. at 6), the General Counsel has not
proposed any special remedial order.
I shall order Respondent Mark to mail notices to all
employees on its Selma, Texas payroll as of July 16, 1986
(the date of Castro's discharge), at their last known ad-
dress . I shall also order Respondent to make Joseph M.
Castro whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to
the date Castro would have been laid off (as determined
at the compliance stage) in Mark 's October 1986 closing
of its Selma plant, 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 Retard-
ed, 283 NLRB 1173 (1987).17
17 Under New Horizons, interest is computed at the "short term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S.C. § 6621 Interest accrued before January 1, 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed18
ORDER
The Respondent , Mark Industries , Inc., Selma, Texas,
its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Teamsters Local 1110 or
any other union.
(b) 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) Make Joseph M. Castro whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify Castro in writing that this has been
done and that the discharge will not be used against him
in any way.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Mail signed and dated copies of the attached notice
marked "Appendix" to all its Selma, Texas employees of
record as of July 16, 1986 , to their last known address.19
Copies of the notice, on forms provided by the Regional
Director for Region 16, after being signed by the Re-
spondent's authorized representative , shall be mailed by
the Respondent immediately on receipt.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
18 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1s If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."