Riviera Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 16, 1967

167 N.L.R.B. 772 (N.L.R.B. 1967)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riviera Manufacturing Co. and Michael G. Lizar-
raga , An Individual. Case 21-CA-7367
October 16,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS , AND ZAGORIA
On June 5, 1967, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent
filed an answering brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Los Angeles, California, on March 3, 1967. The
complaint' alleges that Respondent, Riviera Manufactur-
ing Co., had engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act. Briefs have
been submitted by the parties.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
1 Issued December 16, 1966, and based upon a charge filed on October
27, 1966, by Michael G L izarraga, an individual.
167 NLRB No. 103
Riviera Manufacturing Co., a California corporation
maintaining its principal office and place of business at
Los Angeles, California, is engaged in the manufacture
and sale of furniture. It annually sells and ships furniture
valued in excess of $50,000 directly to customers located
outside the State of California. I find that the operations
of Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upholsters' International Union of North America,
AFL-CIO, Local 15-A, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issues
Respondent, as a member of a multiemployer associa-
tion of over 30 members, has been under contract with
the Union for approximately 12 years. This relationship
appears to have an amicable one, at least between top
management and union officials. The representatives of
Respondent involved herein are President Sanford
Siegel; Vice President Jerry Siegel; Plant Superintendent
Ronald Eaton; James Cox, the latter's assistant; and
Foremen Ralph Howell and Jesse Duran. '
Respondent has approximately 150 employees and 135
of them are represented by the Union. Those in the clas-
sification of upholsterers work at individual workbenches
on two floors with Foreman Duran in charge on the lower
level and Foreman Howell over the upper level. The in-
stant case stems basically from difficulties Respondent
encountered with the one shop steward at its plant,
Michael Lizarraga, the Charging Party herein, who was
discharged on October 27, 1966, after almost 10 years of
employment and 9 years as shop steward.
The complaint alleges that in June or July of 1966
Lizarraga was threatened with reprisals and that he was
discharged on October 27, 1966, because he was a union
steward and was engaged in union or protected concerted
activities. His termination notice stated that he was
discharged because he disobeyed a direct order. Respond-
ent contends herein that he was discharged for insubor-
dination. More specifically, it is the contention of
Respondent that, against a background of some difficulty
with Lizarraga on a personal rather than a shop steward
basis, Lizarraga personally challenged and flatly refused
to comply with a decision by Respondent that the men
were to sweep around their work stations at the end of the
day. No issue is raised as to the quality of his work as
such.
B. The General Counsel's Case
The General Counsel relies upon (1) Lizarraga's role
in presenting grievances, apparently with the thought that
he was aggressive to the point of irritating management;
(2) certain alleged expressions of hostility to him; and (3)
the fact that only Lizarraga was selected for discharge
because of the sweeping and other transgressors were
not.
As for the presentation of grievances, the record dis-
closes little to support the General Counsel. Thus, in
RIVIERA MFG. CO.
reciting his activities after January 1, 1966, Lizarraga re-
called presenting a grievance in February concerning an
employee classified as an outsider; Plant Superintendent
Eaton promised to take care of this and Lizarraga did not
know if he had. In February or March, Lizarraga com-
plained that another employee was not receiving the
proper time for his operation. This was investigated and
the situation was remedied 2 or 3 weeks later. Another
grievance related to a seamstress who was tardy and was
sent home for a day. When Lizarraga took this up with
Eaton, the latter merely laughed. Two other grievances
involved an employee who was refused his vacation and
another, in June, who allegedly did not receive enough
work. In sum, as Lizarraga put it, there were always
grievances concerning jobs and the times alloted to the
respective operations. One can only note that with one
steward in a plant of this size, Lizarraga's activities as
steward would not appear to have been excessive and the
inference is not warranted that he was unduly aggressive.
Lizarraga testified that on several occasions when he
presented grievances to Plant Superintendent Eaton, the
latter responded that if Lizarraga "didn't like it, why
didn't I just quit." These statements were made prior to
June and once during July when Lizarraga asked to take
his vacation in August and Eaton refused because the
plant was closing down.
The General Counsel relies upon the testimony of em-
ployee Alberto Lopez that during June of 1966, Foreman
Howell told him that Plant Superintendent Eaton wished
to "get rid" of Lizarraga. Lopez duly informed Lizarraga
of this, although the testimony of Lizarraga reflects a
somewhat embellished version.
Lopez also testified that on the morning of October 26,
after brooms had been installed upstairs, Foreman
Howell told him that Lizarraga would be discharged if he
did not sweep that evening and that if he was not on that
occasion, he would be discharged for another reason
because Plant Superintendent Eaton wished to "get rid of
him."
Foreman Howell testified that he was in the habit of
discussing work problems with Lopez. He recalled that
he told Lopez, after one incident with Lizarraga, that if
Lizarraga failed to "shape up he is going to get fired
because of his constant refusal of orders." He denied ever
telling anyone that Respondent was out to "get" Lizar-
raga. He recalled telling Lopez on October 26-that Lizar-
raga had refused to sweep and that he, Howell, hoped
Lizarraga would change his mind because he was faced
with discharge if he did not. Howell allegedly did so in the
hope that Lopez might convince Lizarraga that he should
sweep. As will appear, there were other incidents involv-
ing Lizarraga and his refusal to follow orders. Howell de-
nied ever being told by Eaton to find a reason to terminate
Lizarraga, but recalled being told by Eaton between Oc-
tober 14 and 19 that Respondent "had had it" with Lizar-
raga and that he would not receive another chance in the
event of a future dereliction. Eaton candidly admitted
disliking Lizarraga, but placed this on a personal level.
Howell impressed me as a clear and forthright witness
L Even if the testimony of Lopez were accepted , it is not inconsistent
with the position of Respondent that it had run out of patience with Lizar-
raga because of his uncooperative attitude , viz, his refusal as an employee
to follow orders
3 Respondent urges a finding that Lizarraga arranged this walkout in an-
ticipation of his discharge While there is evidence to support such a find-
773
who genuinely was trying to avert a blowup rather than
procure a discharge and his version is credited.2
The General Counsel further relies on the testimony of
employee Jacobo Rodriguez. A 1-day walkout of em-
ployees had followed immediately upon the discharge of
Lizarraga on the morning of October 27.3 Rodriguez was
a member of a committee that met that afternoon with
management in an effort to obtain a rescission of the
discharge of Lizarraga. According to Rodriguez, Vice
President Jerry Siegel stated that he disliked the manner
in which Lizarraga handled grievances and that he had a
big mouth. Some members of the committee suggested
that Lizarraga be put back to work as an employee and
that he relinquish his position as shop steward. Both
Siegel brothers responded that they did not want him as
shop steward and that he was fired.
Jerry Siegel did not testify. President Sanford Siegel
denied that he stated at this meeting that he wanted to
discharge Lizarraga because he was an unsatisfactory
steward. In this, he was thoroughly supported by the
testimony of Business Representative Frank Lacasella of
the Union who made a hasty appearance on the scene
that day after the walkout. Lacasella testified that he
heard neither Siegel say anything about the performance
of Lizarraga as a steward or that he was discharged
because he was a steward. He believed that they might
have said only that Lizarraga, as steward, should have
urged the strikers to return to work and remedy their
breach of the no-strike clause in the contract with
Respondent, indeed, the contract does contain such a
clause and Lacasella did take such a position with the
strikers that day. Here as well, I credit the corroborative
testimony of Sanford Siegel and Lacasella.
Moreover, they are in part corroborated by the
testimony of Daniel Figueroa, a witness for the General
Counsel. Figueroa testified that President Siegel said at
this meeting only that if Lizarraga had performed his du-
ties as steward, the walkout would not have taken place.
Someone suggested the return of Lizarraga solely as an
employee and Siegel replied that he was reluctant to do so
because Lizarraga had a "big mouth." As set forth below,
Respondent has adduced evidence to support this view.
C. Respondent's Case
It is the position of Respondent that the sweeping in-
cident was the most recent of a number of insubordinate
acts by Lizarraga, although it is admitted that he would
not have been discharged but for the sweeping incident.
As Plant Superintendent Eaton put it, one does not hasti-
ly discharge an employee with over 9 years' tenure "even
though he does like to argue."
Sometime in August, Respondent noticed that Lizar-
raga, although reporting late for work, turned in a
timecard which showed his reporting on time. An in-
vestigation disclosed that Lizarraga had in his custody a
collection of timecards for each day of the week so that,
in the event of tardiness, he could make the appropriate
substitution; other employees were also guilty of this
infraction.4
As an example of his attitude, Foreman Howell sup-
plied evidence of two incidents within I month of the
mg, the fact is that Li zarraga was discharged prior to the walkout and
there is no real issue raised in the complaint concerning the strike as such,
or with respect to the strikers. I deem it unnecessary therefore to treat
herein with the walkout
" Findings as to this and the two incidents below are based upon the un-
controverted testimony of Foreman Howell
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sweeping incident. Thus, Respondent has a policy that
radios are not to be brought into the plant or played.
There is one exception for the World Series.5 Employees
are then allowed to introduce and play radios for the dura-
tion of the Series. After the Series was over, Lizarraga
kept his radio at his work station and continued to play it
during working hours. He was the only such offender.
Pursuant to instructions from Plant Superintendent
Eaton, Foreman Howell instructed Lizarraga to keep his
radio home. Lizarraga refused and continued to play it at
work up to the day of his discharge.
Several days later, Foreman Howell learned that Lizar-
raga, an upholsterer, had placed two conflicting shades of
fabric on the wooden back of a piece of furniture. He told
Lizarraga that he would have to repair the back; this
would have involved work on his own time. Lizarraga
became angry and refused to do so, voicing his refusal
with profanity. Howell insisted that the mistake was that
of Lizarraga and this is not challenged herein. Lizarraga
persisted in his anger, picked up the piece of furniture,
threw it on the floor, and broke the frame. Plant Superin-
tendent Eaton was summoned to the scene and told
Lizarraga that he would have to repair the back and that
if he did not he would be discharged for insubordination.
Later that day, Lizarraga did repair the back.
Thereafter, between October 14 and 19, Plant Superin-
tendent Eaton told Foreman Howell that Respondent
"had had it" with Lizarraga and that he would receive no
further chances. It is against this predicate, that Lizarraga
challenged Respondent and its decision that the men were
to sweep their working areas.
For a period of time prior to the discharge of Lizarraga,
Respondent had become concerned over the accrual of
debris and cuttings at the workbenches of the uphol-
sterers. Theoretically, each man was to place this debris
in nearby receptacles or push it into the aisle so that
designated sweepers could remove it, but this had proven
unsatisfactory. As a result, a decision was made, approxi-
mately in early October, to obtain additional brooms and
have each man devote 3 minutes of paid time per bench
at the end of the day for sweeping.6
Respondent's supervisors communicated this decision
to the union representatives and specifically to Business
Representative Lacasella who serviced this plant. The
record also discloses that Lizarraga had discussed this
unhappy prospect with Lacasella prior to October 13 on
which date the decision was formalized at a meeting
between union representatives and management. The
purpose of that meeting was to discuss another grievance
but, near its conclusion, management announced the deci-
sion to procure additional brooms for the sweeping pro-
gram. There is some conflict as to what was said
thereafter.
According to Lizarraga, Plant Superintendent Eaton
introduced the topic. Jess Gonsalez, business manager of
the Union and Lacasella's superior, stated that the men
were required to police their areas but not to sweep.
Lacasella added that he would take the matter up with the
executive board of the Union and advise Lizarraga in a
few days. Lizarraga admittedly told Eaton "I don't know
about the other fellows and I am not going to sweep." As
Lizarraga put it, he had completed his apprenticeship
5 I believe that administrative notice may be taken that the World Series
is a four out of seven game series between the leading teams in the Na-
tional and American Baseball Leagues , that it is usually played in early
October and that the Los Angeles Dodgers represented the National
League, not overeffectively , in the 1966 Series
many years before and considered it degrading to use a
broom. He further testified that Eaton told him on this oc-
casion "he would have to sweep or be fired," this in the
presence of Gonsalez.
Further evidence relied upon by the General Counsel
was presented by employee Jacobo Rodriguez. He re-
called that Eaton complained about the dirty floors and
said that the men had to sweep; Rodriguez replied that he
did not wish to do so. He also testified that the union
representatives said they were not required to sweep, that
they did have to police the area and that it was his impres-
sion that the meeting ended on that note.
Employee Daniel Figueroa arrived late at the meeting,
stated that he considered it humilating to be required to
sweep, and that he did not wish to. He suggested that
someone be hired at a lower rate of pay for this purpose.
He stated that he would not sweep and so did Lizarraga.
Gonsalez announced that he need only police his area.
Contrary to Lizarraga, Figueroa recalled no reference
being made to the matter being taken to the executive
board. As will appear, Lacasella testified similarly.
The testimony of Business Representative Lacasella
and Plant Superintendent Eaton is in basic agreement.
Lacasella testified that Eaton announced he would
require the men to sweep and that they would be paid at
their regular rate of pay; Lizarraga objected. Both union
representatives instructed the men to comply with the
order and to file a grievance under the contract if the al-
lotted time was insufficient; Lacasella specifically told
Lizarraga to so proceed and Gonsalez spoke similarly.
Lacasella disagreed with Lizarraga that he said he would
take this matter to the executive board, pointing out
herein that the board heard only matters of more sub-
stance. He denied telling Lizarraga that it was sufficient
to police the area, claiming that it is industry practice to
keep the working areas clean and that sweeping is not
unknown. Indeed, as noted, Lacasella had previously told
Lizarraga, when the latter telephoned about the problem
prior to October 13, that they were being paid to sweep
and that he was to comply. Lacasella testified also that on
October 13 Lizarraga flatly announced that he would not
sweep and Figueroa stated that he did not wish to.7
Eaton later testified that he agreed in essence with the
testimony of Lacasella. More specifically, Eaton told
Lizarraga that he would have to sweep and Lacasella and
Gonsalez did likewise. Lizarraga was told that he could
grieve later. There was no reference to taking the matter
to the Union's executive board. As Eaton viewed it,
Lizarraga hadrbeen directly insubordinate on this occa-
sion in refusing to sweep, despite the instructions of his
union representatives. Moreover, he felt that Lizarraga,
as shop steward, should comply with the grievance
procedures of the contract. Eaton did not hear Figueroa
or Rodriguez voice a refusal to sweep.
Both Lacasella and Eaton, on opposite sides of the
fence, impressed me as unemotional and objective wit-
nesses who set forth the incident as they recalled it. Their
testimony was mutually corroborative and is supported
in part by that of Figueroa. I have therefore credited their
testimony herein. I find that the union representatives,
together with management, instructed Lizarraga to obey
orders and sweep; that the union representatives told him
s Some men handled more than one bench This payment was at the
contract rate of $3 .40 per hour and not at the piecework rates which per-
mitted higher earnings
' The latter testified both that he said he did not wish to and that he
would not
RIVIERA MFG. CO.
to file a grievance, if he wished, but to comply with the
order; and that, on October 13, Lizarraga flatly refused
to sweep.
Two dozen brooms having been obtained, Respondent
distributed some of them on October 25 among the 25
upholsterers who worked downstairs. That crew, in es-
sence, did not sweep that day According to the uncon-
troverted testimony of Superintendent Eaton, three
named employees who normally did some cleanup work
at their work stations did not that evening.
Eaton admittedly took no disciplinary action at this
point. He testified that it was impractical to discharge
everyone and, further, that he had been advised by his
assistant, Cox, that the problem had originated upstairs
with Lizarraga who had told downstairs employees that
they did not have to sweep. Eaton decided to put Lizar-
raga to the challenge; as he put it, he did not wish to make
an example of anyone, but he did wish to bring the matter
to a head. Accordingly, it was decided to introduce the
brooms upstairs and this was done on the morning of Oc-
tober 26.
As Foreman Howell testified, he assembled the up-
stairs group on October 26 and informed the men that
they would be expected to sweep at the end of the shift,
for which they would be reimbursed at their hourly rate.
Lizarraga told Howell, according to the latter, "I told
Ronald [Eaton] I told the Union .... Now I,am telling
you ... I will not sweep." Howell relayed this fiat to
Eaton who decided that if Lizarraga did not sweep that
night he would be discharged. Howell returned to Lizar-
raga, told him that he was in direct defiance of an order to
sweep, and announced that if he did not sweep that night,
he had no choice but to terminate him. Lizarraga replied
that he did not care.
I note also that Daniel Figueroa, a witness for the
General Counsel, testified that he heard Howell voice
this specific warning to Lizarraga on October 26. With
the exception of one man, Lopez, who policed his area,
none of the upholsterers swept that night.
On the morning of October 27, Howell was prepared
to discharge Lizarraga because of his failure to sweep the
previous night, but decided to check further. He asked
each employee why he had not swept the previous night.
Two named employees specifically told him that Lizar-
raga had so instructed them. Howell, it is uncontroverted,
told each of the men he spoke with that day that he would
be discharged if he did not sweep on the night of October
27. He handed Lizarraga his discharge slip immediately
thereafter.
Howell claimed that Lizarraga was actually the only
employee who defied his order to sweep the floor. And it
would seem the other men basically confined their
responses to their reluctance to sweep rather than a
refusal to do so. And, at the close of work on October 27,
the other employees did sweep. The sweeping continued
for 2 or 3 days thereafter until committeeman Figueroa
approached Eaton. He proposed that the men police their
work areas adequately in return for a promise not to use
the brooms. Eaton agreed, reserving the right to reinstate
9 I do not rely herein on a decision by the California Unemployment In-
surance Appeals Board on January 25, 1967, or on the transcript of a
prior hearing before that tribunal
775
brooms for failure to police adequately. The shop has
been satisfactorily policed since that date.
D. Conclusions
As an initial premise, it is apparent that Respondent
has had a long and untroubled relationship with the Union
for many years , an indication of lack of union animus. See
Alton Box Board Company Container Division, 155
NLRB 1025, 1039.
Lizarraga belligerently refused to follow the instruc-
tions to sweep and this was the latest and most serious of
several transgressions . While others also failed to sweep,
the position taken by Lizarraga was more adamant. There
is evidence that he influenced others to follow his exam-
ple and surely he, as shop steward , should be held to a
high standard of conduct.
True, there is mild evidence that management was not
overly happy about Lizarraga 's presence in the plant. But
the fact that he may have provided management with suf-
ficient cause for his discharge does not serve to establish
its unlawfulness . Klate Holt Co., 161 NLRB 1606. And
the record will not support a finding that Respondent con-
cocted the broom plan in order to bring about his
discharge.
Although the basic thrust of the testimony of Lizarraga
was that he did not counsel anyone to join him in the
refusal to sweep , on the assumption that he and his
coworkers were engaged in a concerted activity , Lizar-
raga has placed himself in an untenable position.
These employees had the unqualified right to withhold
their services from Respondent or to work . They did
neither. Rather , they continued to work for Respondent
on their own terms and refused to follow orders . They are
thus in no better position than employees who refuse to
follow prescribed techniques or to obey company rules
and insist on dictating their conditions of employment.
See General Electric Co ., 155 NLRB 208, and Poin-
dexter v. N.L.R.B ., 353 F. 2d 524 (C.A. 4).
I find , on the entire record , that Lizarraga was
discharged for cause unrelated to any concerted or union
activities . More specifically, I find that he was discharged
for insubordination . I shall therefore recommend that this
allegation of the complaint be dismissed . Machaby v.
N L.R.B., 377 F .2d 59 (C.A. 1), and Continental Oil Co.,
161 NLRB 1059 . I find no substantial evidence to sup-
port the allegation of threats and shall also recommend its
dismissal.8
CONCLUSIONS OF LAW
1. The operations of Respondent , Riviera Manufac-
turing Co ., affect commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
2. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and ( 1) of the
Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclu-
sions of law, it is recommended that the complaint be
dismissed in its entirety.