Sawyer of Napa

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 131 (N.L.R.B. 1990)

131
300 NLRB No. 19
SAWYER OF NAPA
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In agreeing with the judge that the Respondent violated Sec. 8(a)(1) by
discharging Victor Camacho for engaging in protected concerted activity,
Member Oviatt notes that the Respondent solicited a concerted response from
Camacho and Gonzola Zamora when it jointly approached these employees
and threatened them with discharge if neither performed overtime work.
1 In its answer Respondent, a corporation with its place of business in Napa,
California, admits it meets one of the Board’s applicable discretionary jurisdic-
tional standards and is an employer engaged in commerce within the meaning
of Sec. 2(6) and (7) of the Act. Also, at the start of the hearing, Respondent
admitted that the Union is a labor organization within the meaning of Sec. 2(5)
of the Act.
2 All dates hereinafter, unless otherwise specified, refer to the year 1988.
Sawyer of Napa, Inc. and Victor M. Camacho and
Pacific Northwest District Council of the Inter-
national Ladies Garment Workers’ Union,
AFL–CIO. Cases 20–CA–22399 and 20–CA–
22402
September 28, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 8, 1989, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sawyer of Napa, Inc.,
Napa, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Boren Chertkov, for the General Counsel.
George J. Tichy II, Robert K. Carrol, and Evelyn Crane,
Esqs. (Littler, Mendelson, Fastiff & Tichy), for the Re-
spondent.
Peter Olney, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
consolidated proceeding, in which a hearing was held on
May 22–25, 1989, is based upon unfair labor practice
charges filed on December 22, 1988, against Sawyer of
Napa, Inc. (Respondent) by Victor M. Camacho in Case 20–
CA–22399 and by Pacific Northwest District Council of the
International Ladies Garment Workers’ Union, AFL–CIO
(Union) in Case 20–CA–22402, and upon a consolidated
complaint issued on February 27, 1989, by the Regional Di-
rector for Region 20 of the National Labor Relations Board
(Board), on behalf of the Board’s General Counsel, alleging
that Respondent was engaging in unfair labor practices with-
in the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act (Act).
More specifically the consolidated complaint alleges that
Respondent violated the Act, as follows: violated Section
8(a)(1) by discharging Victor Camacho on October 24, 1988,
because on October 21, 1988, Camacho ‘‘concertedly com-
plained to Respondent regarding the wages, hours, and work-
ing conditions of Respondent’s employees’’ or, in the alter-
native, because Respondent ‘‘believed that Camacho en-
gaged’’ in such conduct; and, violated Section 8(a)(1) and
(3) by discharging Francisco Nunez on November 8, 1988,
and Salvador Guzman on November 9, 1988, because they
joined, supported, or assisted the Union. Respondent filed an
answer to the consolidated complaint in which it denied
committing the alleged unfair labor practices.1
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs of the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Victor Camacho’s Discharge
1. The evidence
Victor Camacho was employed by Respondent in its ship-
ping and receiving department from August 10, 1988, until
October 24, 1988,2 when he was discharged. During the time
material the other employees employed in this department
were Gonzola Zamora, Mike Steincamp, and Peggy Zerba,
all of whom were supervised by Jeanne Trumble, Respond-
ent’s manager of sales and shipping, who reported to Dave
Davis, Respondent’s production superintendent.
Respondent’s new hires have a 90-day introductory period
during which they received none of the fringe benefits, i.e.,
holiday pay, sick leave, medical insurance, etc., afforded reg-
ular employees. In August, during his job interview,
Camacho was informed by Sandra Hood, Respondent’s per-
sonnel manager, that for the first 90 days of his employment
he would be a probationary employee and during that period
could be fired for any reason. Plant Superintendent Davis
also advised him of this.
On the subject of overtime, the handbook which Respond-
ent distributes to its employees states that, ‘‘[o]ccasionally,
you will be required to perform overtime work necessary to
meet Company production requirements or schedules.’’ In his
August job interview, Camacho was advised by Personnel
Manager Hood that his regular hours of employment would
be from 7 a.m. to 3:30 p.m., but there would be regular over-
time, as required by the job, and it would be necessary for
him to work overtime if he accepted the job, ‘‘because over-
time work was mandatory.’’ She also told him that if em-
ployees refused to work overtime ‘‘they would be fired.’’
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This description of Zerba’s conversation with Camacho and Zamora is
based upon Zamora’s credible testimony. Camacho was not questioned about
this conversation and Zerba did not testify.
4 This description of Zamora’s conversation with Camacho is based upon
Zamora’s credible testimony. Camacho was not questioned about this con-
versation. Although I have not credited Zamora’s testimony in certain respects,
infra, I note that his testimonial demeanor was good when he testified about
his conversation with Zerba and his subsequent conversation with Camacho,
when they discussed Trumble’s instruction.
5 The native language of Camacho and Zamora is Spanish. Trumble, who
does not speak Spanish, spoke to them in English.
(Tr. 117 LL. 16–18.) During his subsequent preemployment
interview with Production Superintendent Davis and Ship-
ping Department Manager Trumble, Camacho was informed
by Davis that in the department where he would be working,
‘‘overtime was a fact of life, we work until the work is
done’’ because, as Davis explained to Camacho, if Respond-
ent failed ‘‘to get its goods out’’ its customers would not be
interested in buying them.
During the time material the regular hours of work for the
employees employed in the shipping and receiving depart-
ment were 7 a.m. to 3:30 p.m. However, overtime work was
a way of life in that department for employees Zamora,
Camacho, and Steincamp. They were regularly scheduled to
work overtime. Supervisor Trumble posted a calendar on the
wall of the department and on this calendar marked the
names of Zamora, Camacho, and Steincamp on the dates
they were scheduled to work overtime and, in doing so,
scheduled them for overtime work on a rotating basis. But
if the employee scheduled to work overtime on a particular
day was not available that day, then one of the other employ-
ees in the department was required to stay and work that
overtime, unless excused by Trumble. (Tr. 278, 744–746.)
On October 21, during the morning, Peggy Zerba told
Camacho and Zamora that Trumble had stated that both of
them had to come to work the next day, a Saturday, which
was not a scheduled workday. Camacho informed Zerba that
he had already made a personal commitment to go out of
town on Saturday which prevented him from working. How-
ever, later that morning when Trumble personally told him
he had to come to work on Saturday and asked if it was
‘‘okay,’’ Camacho replied, ‘‘okay, that’s fine.’’
On October 21 Steincamp was the shipping/ receiving de-
partment employee scheduled to work the regular overtime
that day, which was loading the Company’s truck, Camacho
and Zamora having already been scheduled to work overtime
earlier that week. During the afternoon of October 21
Trumble sent Steincamp away from Respondent’s facility on
an errand and he did not return until approximately 3:45 p.m.
or 4 p.m. He returned early enough to perform his overtime
duty of loading the company truck, but at the time he left
it was not certain whether he would return in time to perform
his overtime duty.
On October 21, at approximately 3:15 p.m., ship-
ping/receiving department employee Zerba spoke to
Camacho and Zamora in the department and told them
Trumble wanted one of them to stay and work overtime to
load the company truck. Zamora answered he did not intend
to stay because it was not his day to work overtime.
Camacho either stated, ‘‘it’s not my day to stay either’’ or
remained silent. Zerba then left.3
Immediately after Zerba left, Zamora told Camacho he did
not intend to stay and work overtime because he stayed the
day before and did not intend to stay again because it was
not his turn to do so. Camacho told Zamora he agreed it was
Steincamp’s turn to stay and work overtime. Zamora then
mentioned that he did not know why they were even needed
to work overtime because Steincamp’s errand should not
keep him away from the shipping/receiving department for
that long a period of time. Camacho indicated he agreed with
Zamora that Steincamp would return in time to load the com-
pany truck.4
Trumble testified that she, not Zerba, went to the shipping
department on October 21 and spoke to Zamora and
Camacho about working overtime and did this at approxi-
mately 2:30 p.m. She testified she told Camacho and Zamora
that one of them must stay and work overtime to load the
truck because Steincamp had to leave and, further testified,
when she asked Camacho and Zamora if they understood
what she was saying,5 both nodded their heads in the affirm-
ative and said nothing. I rejected Trumble’s aforesaid testi-
mony because her testimonial demeanor was poor and be-
cause her testimony conflicted with a memo she prepared on
October 21 for Plant Superintendent Davis, in which she de-
scribed what had occurred that day concerning Camacho’s
and Zamora’s refusal to work overtime. In the memo, de-
scribed in detail infra, she stated it was not until 3:20 p.m.
that she learned Steincamp might not be available to work
overtime and further stated it was Steincamp who, in the
presence of Zerba, told Camacho and Zamora that one of
them would have to stay and load the truck. Thus, the memo
contradicts Trumble’s testimony and Trumble failed to ex-
plain this contradiction.
On October 21, shortly after Camacho and Zamora had
punched out from work at 3:30 p.m., Trumble tried unsuc-
cessfully to get one of them to stay and work overtime to
load the truck. Camacho’s, Zamora’s and Trumble’s testi-
mony about this event differs in certain significant respects.
Their testimony has been set out and evaluated below.
Camacho testified that as he and Zamora were walking
across the company yard to their automobiles that Trumble
called out and stated that one of them would have to stay
and work overtime, that Camacho remained silent but
Zamora replied he did not intend to stay because of it was
not his turn to stay and work overtime and explained to
Trumble that it was Steincamp’s turn and not Camacho’s nor
Zamora’s turn to stay. Trumble, Camacho testified, re-
sponded by threatening them with discharge if one of them
did not stay, and Zamora ignored this threat and continued
to walk to his automobile, but Camacho, without saying any-
thing to Trumble, went to Respondent’s personnel office.
Camacho testified his reason for not saying anything to
Trumble and going to the personnel office was, ‘‘because I
see [Trumble] real mad I think she’s crying and she’s yelling
and I say I want to fix this problem because she is not sup-
posed to call at the people like that, real dirty. She’s not sup-
posed to . . . I’m a person.’’ In this regard, Camacho testi-
fied Trumble was upset when she spoke to him and Zamora,
that she spoke to them in an angry manner, and yelled and
used ‘‘dirty’’ language such as ‘‘god damn it.’’
Zamora testified that as he and Camacho walked across
the company yard to their automobiles he realized he had left
something in the shipping/receiving department, so he went
back to the department for a moment and when he returned
to the yard he observed Trumble talking to Camacho. He fur-
133SAWYER OF NAPA
6 Although the transcript at this point is garbled, it is plain from the context
that Davis, in his testimony, was referring to Zamora.
ther testified that when he came to where he could hear what
was being said, he observed that Trumble was ‘‘very upset’’
and was speaking to Camacho in a loud tone of voice and
in a threatening manner, and testified he heard Trumble state
to Camacho, ‘‘something like one of you has to stay . . .
[o]ne of you has got to stay . . . . If not . . . one of you
is not going to be here Monday,’’ and that Camacho an-
swered by stating, ‘‘something like, I’ll stay. It’s not that I
don’t want to stay. I’ll stay.’’ Then, according to Zamora,
Zamora spoke up and told Trumble it was not not necessary
for either Zamora or Camacho to work overtime because
Steincamp would return shortly, at which point Trumble and
Camacho walked back toward the shipping/receiving depart-
ment and Zamora continued on to his automobile.
Trumble testified that at 3:30 p.m. employee Zerba told
her no one had stayed to load the truck, so Trumble went
out onto the shipping/receiving department’s loading dock
and observed Zamora and Camacho at a distance walking
across the company yard toward where their automobiles
were parked. Trumble caught their attention by yelling out
their names. According to Trumble, in response to her call,
Zamora turned around and hollered out something which she
could not hear and he resumed walking toward his auto-
mobile, whereas Camacho walked back to where Trumble
was standing and they had a conversation. Trumble testified
she told Camacho that someone had to stay and load the
truck, and Camacho replied by stating he was not going to
stay and was going to talk to personnel and turned and
walked toward the personnel office and Trumble went to her
office and telephoned Plant Superintendent Davis. Trumble
admits she was upset when she spoke to Camacho but denies
she raised her voice or threatened to discharge anyone. I re-
ject her testimony in its entirety because her testimonial de-
meanor was poor and because, as I have found supra, she
falsely testified about the closely related matter of a con-
versation she supposedly had with Zamora and Camacho ear-
lier that day about working overtime. Moreover, her testi-
mony about the manner in which Zamora conducted himself
is contradicted by the contents of the October 21 memo she
prepared immediately after this incident in which, in re-
sponse to Superintendent Davis’ request that she reduce into
writing what had occurred, Trumble typed the following:
At approximately 3:20 today, Mike Steincamp told
me he was going to go get the keys and have the car
washed for the trip scheduled for Saturday morning. He
said he had told Victor [Camacho] and Gonzolo
[Zamora] that one of them would have to stay for the
trucks that were still to come in. Peggy [Zerba] said she
witnessed this.
At 3:30 Peggy came to me and said that both Victor
and Gonzolo were mad about staying and left.
I ran outside and caught both of them on the way
out. I told them that one of them would have to stay.
They both wanted to argue with me. Gonzolo left and
Victor said he was going to the office.
I them [sic] spoke to Dave [Davis] and he said he
would take care of it.
I find it difficult to believe that if, after having called out
to Camacho and Zamora to get their attention, Zamora had
responded simply by yelling out something which Trumble
could not hear and kept walking toward his car, that Trumble
would have stated in her contemporaneous memo that, ‘‘I
told them that one of them would have to stay. They both
wanted to argue with me.’’ Trumble did not explain why she
wrote this in her memo.
Regarding the conflict between Zamora’s and Camacho’s
testimony concerning their encounter with Trumble, I credit
Camacho’s account because his testimonial demeanor, which
was good, was better than Zamora’s. I also considered that
Zamora, who at the time of the hearing had been employed
by Respondent for 10 years, was not a disinterested witness.
In this regard, as described infra, Zamora, like Camacho, was
initially suspended for his refusal to work the October 21
overtime, but unlike Camacho, who was discharged, received
only a 1-day suspension. The difference in their discipline
was due to Zamora’s long tenure of employment without
having been previously disciplined and because Respondent
gave Zamora the benefit of the doubt, namely it accepted
Zamora’s claim that he believed Camacho on October 21 in-
tended to perform the overtime work when he observed
Camacho walk back toward the building. Thus, it was in
Zamora’s interest to testify that on October 21 he heard
Camacho tell Trumble that Camacho would stay to load the
truck. Moreover, not only is this testimony contrary to both
Camacho’s and Trumble’s testimony, it is inherently incred-
ible. For, if Camacho told Trumble he would stay and work
overtime, there would have been no reason for Trumble to
have immediately complained to Superintendent Davis about
Camacho’s and Zamora’s refusal to work overtime, rather,
she would have gone back to preparing for her business trip
and Camacho would have presumably gone about the busi-
ness of loading the company truck. I am persuaded Zamora
testified as he did in order to support the explanation he gave
to Respondent, which saved his job, that the reason he did
not work the overtime was that he believed Camacho had de-
cided to stay and work. This conclusion is further buttressed
by Zamora’s failure, as described in detail infra, to inform
Personnel Manager Hood that he heard Camacho tell
Trumble that Camacho would stay to load the truck.
On October 21, after her unsuccessful effort to persuade
either Camacho or Zamora to stay and work overtime,
Trumble went back immediately to her office and telephoned
Plant Superintendent Davis and informed him she had told
Zamora and Camacho she needed one of them to work over-
time that day, that both of them had left, and she did not
have anyone to load the company truck, and asked Davis to
come to her office to talk to her about the problem. Davis
went immediately to Trumble’s office. Trumble told him she
had spoken to Zamora and Camacho as they were leaving the
plant and told them she needed one of them to stay, that
Zamora had refused to stay and told her he had stayed the
night before to load the truck,6 and that Camacho had argued
with her and then walked off. Trumble explained to Davis
she was in a hurry to leave the plant because she was in the
process of getting things ready for a business trip to New
York City on which she would embark the next day, and
asked if Davis would take care of this problem. Davis
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The aforesaid description of Trumble’s conversations with Davis is based
upon Davis’ testimony. Trumble’s testimony is at odds with Davis’. Her testi-
mony about her conversations with Davis mirrors her testimony about her pre-
vious October 21 conversations with Camacho and Zamora, which I did not
credit for reasons set forth supra. The failure of Davis to corroborate Trumble
reinforces my belief that Trumble was not a credible witness.
8 I do not credit Hood’s testimony that this memo was not given to her until
Monday, October 24. As I have found above, Trumble testified that when she
left the plant in October 21, at approximately 4 p.m. or 4:15 p.m., she handed
the memo personally to Hood and told Hood, ‘‘here is the note that I wrote
for Dave.’’ Hood failed to testify who it was that supposedly gave her this
memo on October 24; it could not have been Trumble inasmuch as by that
time Trumble was already in New York on business.
9 Camacho and Hood testified about this conversation. Hood’s secretary did
not testify. The above description is based upon Camacho’s testimony. Hood
testified Camacho complained he did not like the way Trumble had yelled at
him and explained to Hood that ‘‘there was a situation outside where she was
yelling at him where she wanted him to stay to load trucks and there was a
problem, and he did not like the way she was yelling at him so he came to
the personnel office to complain about her.’’ Hood further testified she told
Camacho that if Trumble had yelled at him it was probably because she had
a bad day, and Camacho then started to explain to her in more detail what
had occurred that day. Hood testified she did not understand Camacho’s expla-
nation and that his explanation was interrupted by a telephone call from Super-
intendent Davis, who informed Hood there was a ‘‘problem,’’ so she imme-
diately stopped talking with Camacho and asked him to wait in the next room.
I credited Camacho’s testimony because his testimonial demeanor, which was
good, was better than Hood’s, which was poor. I also note Davis testified that
when he telephoned Hood he told Hood there was a problem with Camacho
and Zamora, explained to Hood that Camacho and Zamora had not remained
to load the truck, and testified that Hood responded by informing him that
Camacho was at that time speaking to her and that she would call Davis back
as soon as she ended her conversation with Camacho. Davis further testified
that it was not until approximately one-half hour later that Hood called back
and asked him to come to her office to discuss the problem.
10 This description of Hood’s conversation with Zamora is based upon a
composite of Zamora’s and Hood’s testimony. I note that neither Zamora nor
Hood testified that Zamora told Hood that he had heard Camacho tell Trumble
he would stay and work overtime. Rather, Zamora testified he told Hood that,
‘‘I saw Victor and Jeanne walking back to the shipping room and I figured
that he was going to stay.’’ Hood testified that Zamora told her, ‘‘I don’t un-
derstand what you’re telling me because the problem was taken care of . . .
Victor did stay.’’
11 This description of Davis’ conversation with Hood is based upon a com-
posite of their testimony.
agreed.7 However, before Trumble left the facility, in re-
sponse to Davis’ request that she write a memo describing
what had occurred, she typed and signed the memo, which
has been described in detail supra, and on her way out of
the plant on October 21 at approximately 4 or 4:15 p.m. she
gave it to Personnel Manager Sandra Hood.8
In the meantime, at approximately 3:35 or 3:40 p.m.,
Camacho had gone to Respondent’s personnel office and in-
formed Personnel Manager Hood’s secretary that he wanted
to speak to Hood about a problem he and Zamora had about
working overtime. Hood’s secretary left and in a few minutes
returned with Hood. In the following conversation, Camacho
spoke in Spanish, Hood in English, and Hood’s secretary,
who was bilingual, translated. Camacho told Hood that
Trumble had told him and Zamora that one of them had to
stay and work overtime, that Zamora had asked Trumble to
check the calendar because it was not his turn to work over-
time, but that Trumble told them she did not care and
warned that if one of them did not stay she would fire them.
Camacho complained to Hood that Trumble seemed to be on
the verge of crying, that she had yelled at them and used ob-
scene language. Hood replied she was going to speak to Su-
perintendent Davis and told Camacho to wait in another of-
fice.9
Hood then spoke to Davis, who had come to her office.
Davis’ testimony concerning their conversation follows.
Davis told Hood that Trumble had told him she had informed
Camacho and Zamora that one of them would have to stay
late and load the truck because Steincamp was away doing
an errand, but that Zamora and Camacho both refused to stay
and did not stay. Davis told Hood he thought Camacho
should be immediately discharged for insubordination. Hood
responded that since Zamora was also involved she thought
both of them should be suspended, pending an investigation.
Davis agreed and Hood left. I note that inasmuch as Hood’s
meeting with Davis did not occur until approximately one-
half hour after Hood at approximately 3:45 p.m. had spoken
to Davis over the telephone, that when they met Hood must
have already had in her possession Trumble’s above-de-
scribed October 21 memo. Hood testified that she and Davis
understood from Hood’s memo that both Camacho and
Zamora had been asked by Trumble to work overtime and
that both of them had refused.
Eventually, at approximately 4:30 p.m., Hood returned to
where Camacho was waiting and, using her secretary as a
translator, told Camacho that he and Zamora were suspended
pending an investigation and she would contact him during
the following week to let him know the results of the inves-
tigation. Camacho asked for something in writing. Hood im-
mediately typed and signed a memo, addressed to Camacho,
which stated: ‘‘Effective immediately you are suspended
from your employment with [Respondent] pending investiga-
tion by Management about insubordination to your imme-
diate supervisor Jeanne Trumble. You were told that either
you or Gonzola Zamora were needed to stay to complete
some work and both of you started to argue and left any-
way.’’
On October 21, immediately after Zamora was notified of
his suspension, Hood telephoned Zamora at his home and
told him he had been suspended from work pending an in-
vestigation. Zamora asked why he was being suspended.
Hood told him he had refused to obey an order given by
Trumble to work overtime loading the truck. Zamora replied
he had observed Camacho and Trumble walking back to the
shipping/receiving department and figured Camacho was
going to stay and that the problem had been taken care of.
Hood stated she had not known his story previously and told
him she would discuss the matter further with Davis and on
Monday, October 24, would notify him about his employ-
ment status.10
On Monday, October 24, Davis conferred with Hood about
Camacho’s and Zamora’s status. Hood told him she had spo-
ken to Zamora and that Zamora had told her he had been
under the impression that having stayed and walked back to-
ward the loading dock on October 21, that Camacho intended
to load the truck, so Zamora had gone home. Davis re-
sponded by telling Hood that because Zamora had been with
the Company for a long time, without any prior disciplinary
problems, and because Zamora was contending that he hon-
estly believed Camacho had stayed to load the truck, that a
1-day suspension was sufficient discipline for Zamora and he
could return to work October 25. But with respect to
Camacho’s status, Davis told Hood he had not changed his
mind, that he believed Camacho should be discharged for in-
subordination. Hood stated she agreed.11
135SAWYER OF NAPA
12 Steincamp was scheduled to work overtime October 21 to load the Com-
pany’s truck. However, earlier that afternoon Steincamp had been sent by
Trumble away from the plant on an errand. Since Trumble was not sure
whether Steincamp would return in time to do the overtime work, she decided
that either Zamora or Camacho would have to stay to do the work. As noted
previously, Steincamp eventually did in fact return in time to perform the
overtime work of loading the Company’s truck.
On October 24 Hood telephoned Camacho and told him he
had been fired; she told him he had refused to cooperate with
his supervisor and that being a probationary employee they
had fired him. On the same day Hood filled out a ‘‘Per-
sonnel Change Order’’ stating that Camacho had been dis-
charged for ‘‘insubordination’’ because he ‘‘refused to co-
operate with supervisor during very busy situation . . . still
in 90 day training period.’’
2. Discussion
General Counsel contends that on October 21 Camacho
and Zamora concertedly refused to work overtime, that this
conduct constituted protected concerted activity encompassed
by Section 7 of the Act, and that Respondent suspended
Camacho on October 21 and discharged him on October 24
for engaging in this activity, thereby violating Section 8(a)(1)
of the Act. Respondent contends Camacho’s suspension and
discharge did not violate the Act because Camacho did not
refuse to work overtime in concert with Zamora, and, even
if he did, there is insufficient evidence to establish that Re-
spondent knew this was the situation, and, in any event, a
concerted refusal by Camacho and Zamora to work overtime
would not have been protected by the Act because overtime
work assignments are mandatory. I find, for the reasons
below, Respondent violated Section 8(a)(1) by suspending
and discharging Camacho because he engaged in protected
concerted activity.
The applicable legal principles governing employees’ con-
certed activity in general, as set forth by the Board in Meyers
Industries, 268 NLRB 493 (1984), and reaffirmed in Meyers
Industries, 281 NLRB 882 (1986), are as follows (268
NLRB at 497):
In general to find an employee’s activity to be ‘‘con-
certed,’’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by
and on behalf of the employee himself. Once the activ-
ity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the con-
certed nature of the employee’s activity, the concerted
activity was protected by the Act, and the adverse em-
ployment action at issue (e.g., discharge) was motivated
by the employee’s protected concerted activity.
I find that under Meyers Industries, supra, Camacho’s re-
fusal to work overtime on October 21 represented concerted
activity within the meaning of Section 7 of the Act. Thus,
when during the afternoon of October 21 Camacho and
Zamora were notified by employee Zerba that Trumble, their
department supervisor, wanted either Camacho or Zamora to
stay and work overtime to load the truck, Camacho and
Zamora discussed the matter and in effect agreed that neither
one of them would work overtime that day. Zamora told
Camacho he did not intend to stay and work overtime be-
cause he had worked overtime the day before, that it was
employee Steincamp’s turn to work overtime, and that
Zamora did not understand why either he or Camacho were
needed to work overtime when it appeared Steincamp would
return in time to perform the work.12 Camacho told Zamora
he agreed it was Steincamp’s turn to stay and work overtime
and stated that he also believed Steincamp would return in
time to load the truck. Subsequently, at the end of their reg-
ular workday neither Camacho nor Zamora stayed to work
overtime; they punched out together and left the
shipping/receiving department to go home. When, as they
were leaving Respondent’s premises, Trumble yelled that one
of them would have to stay and work overtime or be fired,
Camacho and Zamora refused to obey her. Zamora re-
sponded by stating it was not his turn or Camacho’s turn to
work overtime, that it was Steincamp’s turn, and when
Trumble threatened Zamora and Camacho with discharge,
Zamora ignored the threat and continued on his way home.
Likewise, Camacho ignored the threat and instead of obeying
Trumble’s order, he went to the office of Respondent’s per-
sonnel manager to complain about Trumble’s treatment of
himself and Zamora. In short, when initially informed on Oc-
tober 21 that Supervisor Trumble expected one of them to
stay and work overtime loading the truck, Camacho and
Zamora adopted a common position; they agreed that neither
one would work overtime. They continued to maintain this
common position when they left the premises that day at the
end of the regular workshift and maintained it even after
Trumble personally demanded that one of them stay and
work overtime and threatened to discharge them if her in-
struction was not obeyed. These circumstances demonstrate
that when Camacho on October 21 refused to work overtime
that he acted ‘‘with’’ Zamora and not solely by and on be-
half of himself.
In finding that when Camacho refused to work overtime
on October 21, he acted in concert with Zamora, I considered
that when, on October 21, Personnel Manager Hood in-
formed Zamora that pending an investigation he was sus-
pended because he had refused to work overtime, that
Zamora replied by explaining to Hood the reason he had not
worked overtime, as requested, was he had been under the
impression Camacho intended to stay and work overtime be-
cause he observed Camacho walk back toward the plant in
the direction of the shipping/receiving department. Zamora’s
actions, however, belie his excuse. As I have found supra,
when informed by employee Zerba that Supervisor Trumble
expected Zamora or Camacho to work overtime, Zamora un-
equivocally indicated he did not intend to work overtime as
requested, and when Trumble later that day personally in-
formed Zamora and Camacho that one of them had to stay
and work overtime, Zamora responded by again unequivo-
cally indicating to Trumble that he would not work overtime,
and when Trumble at this point threatened him and Camacho
with discharge, Zamora ignored the threat and left Respond-
ent’s premises. Under the circumstances, it is clear that the
excuse Zamora later made to Personnel Manager Hood for
not working overtime was made in an effort to save
Zamora’s job and does not correctly reflect Zamora’s state
of mind at the time Trumble asked him to work overtime.
In any event, assuming Zamora did in fact change his mind
and intended to work overtime after hearing Trumble’s threat
of discharge, but did not do so because he believed Camacho
intended to stay and work the overtime, it would not convert
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Davis decided to discipline Zamora for his part in Zamora’s and
Camacho’s concerted refusal to work overtime by suspending him for 1 day,
rather than discharging him. As I have found supra, Davis’ decision to impose
a lesser degree of discipline upon Zamora was motivated by the fact that in
contrast to Camacho, who was a probationary employee, Zamora had been em-
ployed by Respondent for 10 years, without having been previously dis-
Camacho’s refusal to work overtime from concerted to indi-
vidual activity. For, on October 21 when initially informed
that Trumble expected one of them to work overtime,
Zamora and Camacho adopted the common position that nei-
ther one of them would work overtime and continued to
maintain this position when they left work that day at the
end of their normal workshift and even after Trumble person-
ally demanded that one of them stay and work overtime.
Under these circumstances, even if Zamora did in fact aban-
don this common position after hearing Trumble’s threat of
discharge, it would be unduly restrictive of Camacho’s Sec-
tion 7 rights to hold that Zamora’s change of mind, which
was not communicated to Camacho, abruptly converted what
had previously been concerted activity into individual activ-
ity and deprive Camacho of the Act’s protection. As the
court in a similar situation stated in NLRB v. Parr Lance
Ambulance Service, 723 F.2d 575, 579 (7th Cir. 1983):
An employee need not have fellow employees join in
every step he takes in order for his actions to qualify
as protected concerted activity. . . . Simply because
one employee carries a protest further than other em-
ployees does not necessarily mean that the more active
employee loses the protection of the Act. To hold oth-
erwise would unduly restrict the rights guaranteed by
Section 7.
Moreover, since, as I have found infra, it was Camacho’s
and Zamora’s concerted refusal to work overtime which pro-
voked Respondent to dismiss Camacho, Zamora’s supposed
change of mind about working overtime would not deprive
Camacho of the protection of the Act he otherwise deserved.
See, NLRB v. Parr Lance Ambulance Service, supra at 579.
I further find that when Respondent suspended and dis-
charged Camacho it knew of the concerted nature of his ac-
tivity. Thus, on October 21, after Camacho and Zamora re-
fused to obey Supervisor Trumble’s request that one of them
stay and work overtime, Trumble immediately told Plant Su-
perintendent Davis she had spoken to Camacho and Zamora
and had told them she needed one of them to stay and work
overtime to load the trucks, and they had both refused to
stay. Trumble, at Davis’ request, then typed a memo which
described what had occurred, and Personnel Manager Hood
and Davis considered the memo on October 21 before decid-
ing to suspend Zamora and Camacho. The memo, in perti-
nent part, states Trumble told Zamora and Camacho that one
of them would have to stay and work overtime that day and
states that when Trumble was subsequently informed that
‘‘both Victor [Camacho] and Gonzola [Zamora] were mad
about staying and left, that Trumble ‘‘ran outside and caught
both of them on the way out [and] told them that one of
them would have to stay [and] they both wanted to argue
with me [and] Gonzola [Zamora] left and Victor [Camacho]
said he was going to the office.’’ Hood and Davis, when
they read this memo, understood it to mean that Camacho
and Zamora both refused to stay and work overtime. Subse-
quently on October 21, when Camacho was notified of his
suspension he was given a memo signed by Hood which stat-
ed Camacho was suspended because he had been insubordi-
nate to Supervisor Trumble because when Trumble told
Camacho and Zamora that one of them was needed to stay
overtime to complete some work that both of them refused
to work overtime. The foregoing circumstances, when cou-
pled with the fact that on October 21 Respondent simulta-
neously suspended both Camacho and Zamora for refusing to
work overtime that day, establishes that when Respondent
suspended and then discharged Camacho it knew of the con-
certed nature of his refusal to work overtime.
I further find that on October 21 Respondent suspended
Camacho because he acted in concert with Zamora on Octo-
ber 21 when they refused to work overtime. Respondent in
effect admitted it suspended Camacho because of his afore-
said concerted activity. For, as described in detail supra,
when Camacho was notified about his suspension he was
given a memo signed by Personnel Manager Hood which
stated that the reason for his suspension was that when
Camacho and Zamora were instructed by their supervisor
that one of them would have to work overtime that both
Camacho and Zamora refused to work the assigned overtime.
Considering this confession; considering the timing of
Camacho’s suspension, hard on the heels of Respondent’s
knowledge that Camacho, in concert with Zamora, refused to
work overtime; and, considering the simultaneous suspen-
sions of Camacho and Zamora for refusing to work overtime;
I find that the General Counsel has established Respondent
suspended Camacho on October 21 because on that day he
acted in concert with Zamora in refusing to work overtime.
Likewise, I find that on October 24 Respondent discharged
Camacho because he acted in concert with Zamora on Octo-
ber 21 when they refused to work overtime. On October 24
Plant Superintendent Davis decided Camacho should be dis-
charged because he had been insubordinate to his supervisor
by refusing to work overtime on October 21. Davis testified
that his only reason for discharging Camacho on October 24
was Camacho’s October 21 refusal to work overtime after
being told to do so by his supervisor. As I have described
in detail supra, Camacho was suspended on October 21
pending a further investigation by management. However,
while Respondent conducted a further investigation con-
cerning Zamora’s involvement in Camacho’s and Zamora’s
refusal to work overtime, there is no evidence of any further
investigation concerning Camacho’s involvement. Thus, in
deciding to discharge Camacho, Davis relied on the informa-
tion he had in his possession on October 21, when he sus-
pended Camacho. In view of these circumstances and be-
cause I have found, supra, that Respondent suspended
Camacho because on October 21 he acted in concert with
Zamora in refusing to work overtime, I find Davis’ testimony
that his sole reason for discharging Camacho was his refusal
to work overtime constitutes an admission that Camacho was
discharged because he acted together with Zamora in refus-
ing to work overtime. This admission and the fact that on
October 24, at the same time he decided to discharge
Camacho, Davis decided to suspend Zamora for one day, Oc-
tober 24, because of his October 21 refusal to work overtime,
establishes Respondent discharged Camacho on October 24
because of Camacho’s and Zamora’s concerted refusal on
October 21 to work overtime.13
137SAWYER OF NAPA
ciplined, and because Zamora had told Personnel Manager Hood that his rea-
son for not staying to work overtime was that he believed Camacho had in
fact stayed to work overtime.
14 As I have found supra, the employees in Camacho’s and Zamora’s depart-
ment were regularly scheduled to work overtime on certain preassigned days
of the week, but if an employee scheduled to work overtime on a particular
day was not available due to sickness or for some other reason, then one of
the other employees was required to stay and work the overtime, unless ex-
cused by the department supervisor. In other words, on October 21 when Su-
pervisor Trumble told Camacho and Zamora that one of them would have to
substitute for Steincamp, with respect to Steincamp’s overtime work, it con-
stituted a mandatory overtime job assignment.
15 The fact that Camacho and Zamora do not appear to have been protesting
expressly against a continuing condition or policy of employment does not ne-
cessitate a different result. Here their refusal to work the unscheduled overtime
on October 21 occurred when at approximately 15 minutes before the end of
their regular workshift the last regular workday of the week, a Friday, they
were abruptly told that management expected one of them to stay and work
overtime. Whether Camacho’s and Zamora’s response in refusing to work the
overtime is viewed as a concerted protest against what they regarded as unfair
treatment—a ‘‘one shot’’ response—or as an implicit demand that Respondent
in the future not wait until the very last minute before abruptly informing them
that they were required to work unscheduled overtime, their concerted refusal
to work the overtime was entitled to the protection of the Act. See Polytech,
supra.
16 I have considered that the complaint does not allege Camacho’s October
21 suspension violated the Act, but only that his October 24 discharge violated
the Act. However, ruling on the legality of Camacho’s suspension does not
violate any principles of due process because the legality of his suspension
is inextricably intertwined with the legality of his discharge, thus affording Re-
spondent ample notice that the legality of Camacho’s suspension would be an
essential issue in this proceeding. Moreover, the legality of Camacho’s suspen-
sion was fully litigated.
Having found that Respondent suspended and discharged
Camacho because of his concerted refusal with Zamora on
October 21 to work overtime, the remaining issue is whether
this is the kind of concerted activity encompassed by Section
7 of the Act. Respondent contends Camacho’s and Zamora’s
concerted refusal to work overtime did not constitute pro-
tected concerted activity because the overtime they refused to
work was a mandatory overtime work assignment. I agree
with Respondent that the overtime involved was manda-
tory,14 but find no merit to Respondent’s further contention
that in view of the mandatory nature of the overtime work
assignment that the employees’ refusal to work the overtime
did not constitute protected concerted activity.
It is settled that employees have the same right to engage
in a concerted refusal to work mandatory overtime as they
do to engage in a concerted refusal concerning wages or
other working conditions. First National Bank of Omaha v.
NLRB, 413 F.2d 921, 923–925 (8th Cir. 1969), enfg. 171
NLRB 1145 (1968); see also Polytech, Inc., 195 NLRB 695
(1972); J. P. Hamer Lumber Co., 241 NLRB 613 (1979);
and NLRB v. Gulf-Wandes Corp., 595 F.2d 1074 (5th Cir.
1979). It is also settled that when employees repeatedly
refuse to perform mandatory assigned overtime work or an-
nounce their intention to engage in such conduct, that their
conduct is unprotected by the Act because it constitutes a re-
curring or an intermittent partial strike, which amounts to the
employees unilaterally determining their conditions of em-
ployment. Graphic Arts International Union Local 13-B, 252
NLRB 936, 937–938 (1980); Lake Development Management
Co., 259 NLRB 791, 796–797 fn. 4 (1981). See also First
National Bank of Omaha v. NLRB, supra, 413 F.2d at 924;
Polytech, Inc., supra, 195 NLRB at 696. But when overtime
work is voluntary, a discharge for a concerted refusal to
work such overtime in unlawful, even if the employees with-
hold their services intermittently. Dow Chemical Co., 152
NLRB 1150, 1152 (1965); Jasta Mfg. Co., 246 NLRB 48
(1979).
In the instant case Camacho and Zamora refused to work
overtime on only one occasion, October 21, and there is no
evidence whatsoever that they intended to intermittently
refuse to work overtime thereafter. Quite the opposite, on
October 21, prior to his refusal to work overtime that day,
Camacho had already indicated to the department supervisor
that he would work unscheduled overtime the next day, a
Saturday, as requested by the supervisor. Under these cir-
cumstances, in view of the applicable principles of law set
forth supra, Camacho’s and Zamora’s concerted refusal to
work overtime on October 21 did not forfeit the protection
of the Act, even though it involved a mandatory overtime
work assignment.15
Based upon the foregoing I find that Respondent sus-
pended Victor Camacho on October 21 and discharged him
on October 24 because he had engaged in concerted activity
encompassed by Section 7 of the Act. I therefore further find
that by suspending and discharging Camacho, Respondent
violated Section 8(a)(1) of the Act.16
B. The Discharges of Francisco Nunez and
Salvador Guzman
1. The evidence
(a) The setting
Respondent converts raw sheep skin hides into a variety
of suede products at its plant located in Napa, California.
During the time material it employed between 125 and 150
workers.
In the plant’s skin finishing department the sheep skins are
worked on by employees known as buffers. This work is a
very important part of the process by which a sheep skin is
finished into a final suede product. The position of buffer is
one of Respondent’s most skilled and demanding jobs and
because of this pays more than most of Respondent’s other
jobs. Because of the demanding nature of the job, some
workers would rather earn less money working at another
job. Respondent is also reluctant to transfer or terminate an
experienced buffer, who has a satisfactory work record, be-
cause due to the skilled and demanding nature of the job, it
takes a minimum of 6 weeks and as many as 12 weeks to
train a buffer to do the job proficiently. Thus, once an em-
ployee is trained and exhibits acceptable buffing skills, Re-
spondent makes every effort to retain that employee as a
buffer.
The buffer process begins with the ‘‘first buff,’’ where, to
remove the excess flesh from the skin, the buffer moves the
skin over a wet buffing wheel of coarse grained sand or
‘‘grit.’’ The raw sheep skins are not of a consistent quality;
some skins need more buffing because of the thickness and
toughness of the layer between the skin of the animal and
the meat that must be removed, while other skins are leaner
and need to be handled more carefully. Each day at 7 a.m.,
the start of the workshift, the buffers are usually assigned a
number of skins to be completed that day. The first buff is
generally finished by 10:15 a.m., the start of the morning
break period.
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 A buffer with a lot of reworked skins on a particular day has not nec-
essarily done poor work inasmuch as the skins furnished to him on that day
might have been especially fleshy. However, when a skin is placed on the
buffing wheel by a buffer to be reworked, it normally takes more care than
usual by the buffer to avoid overbuffing or burning the skin.
18 Unless stated otherwise, all dates hereinafter refer to the year 1988.
Respondent, which has been in business for a number of
years, prior to 1988 buffed its sheep skins only once. Early
in 1988, to improve the quality of its product, Respondent
instituted ‘‘two-stage buffing.’’ The second stage of the buff-
ing process, known as the second buff, is where the buffer
once again moves the skin over the buffing wheel, this time
using a finer grit to remove the remaining excess flesh from
the hide. The second buff must be done calmly and with care
because the skin, which has already been buffed once, is now
thinner and more easily damaged. It takes an experienced
buffer from 10:15 a.m. until the end of the shift, 3:30 p.m.,
to finish the second buff.
During the first and second buffs, the buffers are expected
to check their own work to be sure they are producing a
quality product and are expected to notify their supervisors
if there is a problem with the skins they have received which
is making it more difficult than usual to buff the skins with-
out damaging them. However, the primary method used by
Respondent to check the quality of the buffers’ work is to
have their work inspected by employees known as checkers,
who have been trained to spot defects in the buffers’ work.
The checkers initially inspect the work during the second
buff and inspect it periodically as that buff progresses. Some-
times a checker will determine that certain areas of the skin
need to be ‘‘reworked,’’ as there is still too much flesh on
the skin, and will mark the particular areas of the skin which
need additional buffing. A checker may also determine that
a skin has been ‘‘overbuffed,’’ also referred to as ‘‘burned,’’
meaning that areas of the skin have been buffed too heavily
and no amount of rework can repair the skin. Once a skin
has been overbuffed it no longer has the strength to with-
stand the remaining skin finishing steps and may not be used
as one of Respondent’s quality sheep skin products.17 Re-
spondent pays approximately $13 for a raw sheep skin and
sells the skin for approximately $32 when finished. However,
an overbuffed skin will be sold usually for only approxi-
mately $12.
During the latter part of October and the first week of No-
vember 1988, Respondent employed the following nine buff-
ers: Raul Baldaras, Salvador Alvarez, Francisco Nunez, Sal-
vador Guzman, Faustino Perez, Miguel Alvarez, Francisco
Narez, Alejandro Gonzalez, and Juan Mesa. Their work was
supervised by Rudy Hernandez, the supervisor of the skin
finishing department and Fernando Ochoa, the department’s
foreman. Also employed in the skin finishing department
under Hernandez’ supervision were checkers Antonio Mon-
toya and Maria Espinoza, who inspected the buffers’ work.
Hernandez reported to Dave Davis, Respondent’s production
superintendent.
In July 198818 the Union commenced the campaign to or-
ganize Respondent’s production and maintenance employees,
who are not represented by a labor organization. There is no
showing when the Union first made its campaign public, but
the record shows Respondent first learned about the cam-
paign when, on or about October 20, it received a letter from
the Union stating the Union represented a majority of Re-
spondent’s production and maintenance employees, requested
recognition as the collective-bargaining agent for those work-
ers, and offered to prove its majority status by means of a
card check.
On October 21, through its labor relations consultant,
David Comb, Respondent answered the Union’s request for
recognition by sending a letter to the Union stating, in perti-
nent part, it refused to recognize and bargain with the Union
because it doubted the Union’s majority status.
On October 20 the Union filed with the Board’s Regional
Office a representation petition in Case 20–RC–16332, seek-
ing a secret-ballot election in a unit of Respondent’s produc-
tion and maintenance employees. Subsequently, on Novem-
ber 7 representatives of the Union and Respondent entered
into a stipulated election agreement in that case; they agreed
that an election would be conducted by the Board’s Regional
Director on December 9. The agreement was approved on
November 14 by the Board’s Regional Director. The election
was held as scheduled and as of the date of the hearing in
this case the results were still pending before the Board.
On November 4 Respondent received a letter from the
Union dated November 3 which stated, in pertinent part, that
‘‘the employees set forth in the attached Appendix A are
supporters of the Union’s organization campaign [and those
employees] as well as other union supporters, will be wear-
ing their union photo identification badges and other union
insignia to indicate their support for the ILGWU, the
Union.’’ Attached to this letter was a list of 26 employees
identified as ‘‘Union supporters’’; included among the 26
were 3 of Respondent’s 9 buffers: Salvador Guzman, Fran-
cisco Nunez, and Alejandro Gonzalez.
In fact the Union’s organizer at a meeting of employees
held November 2 had given all of the employees listed in the
appendix of the Union’s November 3 letter, identification
badges and union buttons. The identification badges con-
tained a picture of the employee and was signed by the em-
ployee and the Union’s organizer and stated that the pictured
employee ‘‘was elected member of the Organizing Com-
mittee by the workers.’’ The union button contained the
name of the Union and the Union’s label.
On Friday, November 4, Nunez and Guzman wore their
photo identification badges and union buttons to work for the
first time and also wore them to work on Monday, Novem-
ber 7. They attached the photo identification badges to their
shirts by means of the safety pin on the union button, so that
both the badge and union button were plainly visible to an
observer. The record reveals that buffer Alejandro Gonzalez
wore his union button to work during this period, but is si-
lent as to whether or not he also wore his identification
badge. The record also reveals that during this period buffers
Miguel Alvarez and Faustino Perez wore union buttons to
work, but not identification badges.
Neither Supervisor Hernandez nor Foreman Ochoa denied
that he observed Guzman and Nunez wearing the union
photo identification badges and union buttons on November
4 and 7. Since the badges and buttons were worn so as to
be plainly visible to an observer, I find Hernandez and
Ochoa observed them being worn by Guzman and Nunez.
When asked if he observed Guzman and Nunez wearing
union buttons, Plant Superintendent Davis testified ‘‘I don’t
recall seeing them wearing [buttons],’’ and when asked if
that meant he did not see them wearing the union buttons,
139SAWYER OF NAPA
19 Davis did not deny he was informed about the contents of the Union’s
letter received by Respondent on November 4 which named 26 of the Com-
pany’s employees, including Guzman and Nunez, who it stated were sup-
porters of the Union’s organizational campaign and would be wearing union
photo identification badges and union buttons to work. In view of Davis’ posi-
tion as plant superintendent I find that Davis was immediately informed about
that letter and its contents. There is no evidence to the contrary.
testified ‘‘it means that I don’t really recall whether they
were or not’’; he explained there were a lot of employees
wearing union buttons and he did not pay attention to who
was wearing them because ‘‘I didn’t care.’’19 Davis reluc-
tantly admitted, however, that whenever he observed an em-
ployee wearing a union button that at the time he made this
observation he realized that the employee, whose name he
knew, was wearing a union button, but testified that by the
time of his testimony he had forgotten the names of those
employees whom he had seen wearing union buttons; he tes-
tified the reason he had forgotten their names was because
‘‘it was not important.’’ In presenting his aforesaid testi-
mony, Davis’ testimonial demeanor was poor. As was the
case with Hernandez and Ochoa, I find on November 4 and
7 that Davis observed Nunez and Guzman were wearing
union photo identification badges and union buttons.
There is no evidence that prior to the December 9 rep-
resentation election that Respondent conducted a campaign to
persuade the employees to vote against union representation
and there is no evidence that Respondent’s representatives
otherwise, or at any time, attempted to persuade a single em-
ployee not to support the Union. In other words, the record
contains no direct evidence that Respondent was antagonistic
toward employees who favored union representation.
(b) Guzman’s discharge: background
In January 1987 Salvador Guzman began work for Re-
spondent. Prior to his discharge on November 9, he had been
employed by Respondent in several different departments,
but since approximately October 1987 had been employed
continuously as a buffer in the skin finishing department.
Plant Superintendent Davis testified that upon until No-
vember 7, Davis had regarded the quality of Guzman’s work
as ‘‘very good’’ and that Guzman had been one of the Com-
pany’s best buffers. It was because of this that when in early
1988 Respondent tested out its new two-stage buffing proce-
dure, it was Guzman who was selected to be the first buffer
to test this new procedure and thereafter, when the Company
elected to implement it, Guzman was used to train other
buffers to work under that procedure.
The tally sheets which Respondent’s checkers first started
to maintain on August 22, reveal the following about the
quality of Guzman’s work: For the 2 days he worked from
August 22 to the end of that month, he overbuffed 6 skins
out of a total of 320 skins worked, for a 1.88-percent
overbuff; in September for the 4 days he worked he
overbuffed 8 skins out of a total of 536 skins worked, for
a 1.49-percent overbuff; in October for the 19 days he
worked he overbuffed 33 skins out of a total of 3,585 skins
worked, for a 0.92-percent overbuff. The most skins
overbuffed in 1 day by Guzman prior to November 7 was
on November 2, when he overbuffed 6 skins out of 170
worked, for a 3.53-percent overbuff. Guzman’s worst daily
percentage of overbuffed skins prior to November 7 occurred
on November 4, when he overbuffed 5 skins out of 122
worked, for a 4.10-percent overbuff. He also overbuffed 5
skins on 3 other days: October 5 when he overbuffed 5 out
of 199 skins worked, for a 2.48-percent overbuff; October 17
when he overbuffed 5 out of 196 worked, for a 2.55-percent
overbuff; and October 10 when he overbuffed 5 out of 191
skins worked, for a 2.63-percent overbuff.
During his employment with Respondent Guzman received
only one disciplinary warning. This was a written one issued
to him on October 17 by Supervisor Hernandez, which stated
he had been warned that day by Hernandez about over-
buffing skins. Hernandez, when he personally issued this
warning, told Guzman it was his first warning and if he re-
ceived a second one it would result in a 1-week suspension
and that a third warning would result in his discharge.
By either late October or the first week of November,
Guzman had become tired of working under the pressure as-
sociated with the job of buffing and because of this spoke
to Supervisor Hernandez and asked to be transferred to a job
in another department. Hernandez told him he would check
into the matter. Hernandez testified he informed Plant Super-
intendent Davis about Guzman’s transfer request and that
Davis’ response was that Guzman was an experienced buffer,
so the Company could not afford to transfer him to another
job. Hernandez further testified that Hernandez then person-
ally informed Guzman of Davis’ response. Davis, on the
other hand, testified that after being informed by Hernandez
about Guzman’s transfer request that, in Hernandez’ pres-
ence, Davis, late in October, personally spoke to Guzman
and told Guzman he did not want to transfer him to another
job because he was too good a buffer, and that Guzman said
nothing in reply.
Respondent contends that even though Guzman’s request
for a job transfer was turned down by Davis in late October
or early November, that on November 7 Guzman again re-
quested a transfer and this time Plant Superintendent Davis
agreed to grant his request when a suitable job vacancy oc-
curred. In support of this contention Respondent relies upon
Davis’ testimony that at approximately 9:30 a.m. on Novem-
ber 7 Supervisor Hernandez came to him and stated Guzman
had again asked for a transfer. Davis testified he responded
by stating he did not really want to transfer Guzman to an-
other job, but told Hernandez that because Guzman was in-
sisting on a transfer, that Davis would check to see what
other job openings were available which were suitable for
Guzman, and that in the meantime Guzman would have to
continue working as a buffer until Davis found another suit-
able job for him. Davis testified he ended this conversation
by advising Hernandez that when he found a vacant job
which was suitable for Guzman, that Davis would notify
Hernandez. Hernandez testified that at 10:30 a.m. on Novem-
ber 7 Guzman called him over to his buffing wheel and
asked ‘‘if [Hernandez] would talk to [Davis] about a trans-
fer.’’ This was the extent of Hernandez’ testimony on this
subject. He failed to corroborate Davis’ testimony that on
November 7 he spoke to Davis about Guzman’s alleged re-
quest for a transfer. Also, when Hernandez testified about the
events of November 7, he significantly failed to mention ever
informing Guzman about Davis’ response to Guzman’s No-
vember 7 request for a job transfer. Guzman testified he did
not speak to Hernandez on November 7 about a job transfer.
I credit Guzman’s testimony and reject Hernandez’ and
Davis’ because: Davis’ testimonial demeanor was poor when
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The description of this conversation is based upon Ochoa’s testimony.
Guzman testified Ochoa told him he needed to use more pressure on the skins
because the skins were ‘‘just getting scratched too much.’’ I credited Ochoa’s
testimony because his testimonial demeanor was better than Guzman’s.
21 In the past, on several different occasions, Ochoa had suggested to
Guzman that he use mats, so he would stand higher above his buffing wheel,
but on each occasion Guzman refused to use the mats.
22 The description of the conversations Hernandez had with Montoya and
Guzman is based upon Hernandez’ testimony. Guzman testified the only time
Hernandez spoke to him about his work on November 7 was when, as de-
scribed infra, Hernandez translated for Superintendent Davis. In general Her-
nandez did not impress me as a trustworthy witness and Montoya failed to
corroborate Hernandez’ testimony that Montoya spoke to him about Guzman’s
work at this time. Nonetheless, I credited Hernandez’ testimony and rejected
Guzman’s because Hernandez’ testimonial demeanor was better than
Guzman’s when they testified about this particular subject matter.
23 The descriptions of the November 7 conversations between Montoya and
Guzman are based upon Montoya’s testimony. Guzman testified that the first
time Montoya spoke to him on November 7 about overbuffing, that Montoya
told him the skins were ‘‘too hard’’ and that Guzman ‘‘should try to do them
better.’’ Guzman further testified that the second time Montoya spoke to him
that day about overbuffing, that Guzman told Montoya the skins were ‘‘really
soft’’ and because of this ‘‘they get burned very easily’’ and that Montoya
replied by stating that Guzman should take more time so the skins would
come out better. I credited Montoya’s testimony because his testimonial de-
meanor, which was good, was better than Guzman’s.
24 The factual findings set forth in this paragraph are based upon the testi-
mony of Montoya and Ochoa. Guzman testified in effect that the only time
Ochoa spoke to him about his work on November 7 was at approximately 11
a.m. I credited Ochoa’s testimony because, in significant part, it was corrobo-
rated by Montoya’s, and because Ochoa’s testimonial demeanor, when he testi-
fied about this particular matter, was better than Guzman’s.
25 The factual findings in this paragraph are based upon Montoya’s testi-
mony. Guzman testified in substance that on November 7 Hernandez did not
speak to him about his work, other than as an interpreter for Superintendent
Davis. Hernandez’ testimony about his above-described conversations with
Guzman, differs substantially from Montoya’s account and differs from the ac-
count contained in Hernandez’ prehearing affidavit submitted to the Board. I
credit Montoya’s above-described testimony because his testimonial demeanor
was good, whereas the testimonial demeanor of Hernandez and Guzman was
not good when they testified about this particular subject matter.
he testified about his November 7 conversation with Her-
nandez concerning Guzman’s request for a job transfer;
Davis’ testimony about his conversation with Hernandez was
not corroborated by Hernandez’ testimony; Hernandez’ testi-
monial demeanor was poor when he testified that on Novem-
ber 7 Guzman asked him to talk to Davis about a job trans-
fer; and, Hernandez significantly failed to mention in his tes-
timony that he relayed Davis’ November 7 message to
Guzman concerning Davis’ decision to grant his transfer re-
quest, which presumably Hernandez would have done if he
had in fact been given such a message by Davis. In rejecting
Davis’ and Hernandez’ testimony, I considered that Guzman
lied to the Employment Development Department for the
State of California when, in filing an unemployment com-
pensation claim against Respondent, he stated he was laid off
by Respondent on November 7, rather than discharged.
Nonetheless, for the reasons set forth above, I credited
Guzman’s testimony in this instance. Moreover, Guzman’s
testimonial demeanor in this instance was better than Her-
nandez’.
c. Guzman’s discharge: the events of November 7
On November 7 Guzman was assigned 175 skins for buff-
ing. He began work on them at 7 a.m., the start of his
workshift. Checker Maria Espinoza began inspecting his sec-
ond buff at approximately 10:15 a.m. She inspected his work
until 11 a.m. when the department’s other check, Antonio
Montoya, began to check his work.
During the 45 minutes on November 7 that Espinoza in-
spected Guzman’s work, she checked 30 skins he had buffed,
of which 10 needed to be reworked. When Montoya began
inspecting his work at approximately 11 a.m., he was in-
formed by Espinoza that Guzman had not overbuffed any
skins, but had done a significant number of skins that needed
to be reworked and that his work was bad.
Soon after Montoya began checking Guzman’s work he
found Guzman was overbuffing skins and at approximately
11:15 a.m. notified Foreman Ochoa about this. Ochoa
showed two of the overbuffed skins to Guzman and told him
he was overbuffing skins. Guzman replied, ‘‘no it can’t be.’’
Ochoa told him that in his opinion Guzman was not standing
high enough over the buffing wheel and asked if he needed
some mats to stand on. Guzman stated, ‘‘no.’’20 Neverthe-
less, Ochoa brought some mats over to Guzman’s buffing
wheel which Guzman did not use.21
Thereafter, shortly after 12:30 p.m., when Montoya found
Guzman was continuing to overbuff, he told Guzman to try
to work more carefully because he was overbuffing too many
skins. Guzman replied, ‘‘he was going to try.’’
Later, at approximately 1 p.m., Montoya informed Super-
visor Hernandez that Guzman was overbuffing skins and
showed him the skins. Hernandez took some of the skins to
Guzman and showed him the areas of the skins that were
being overbuffed and told him to be real careful about buff-
ing those areas and suggested he ‘‘should back off’’ on those
areas and be more careful. Guzman did not reply; he just
shrugged his shoulders.22
Subsequently, at approximately 1:45 p.m., when Montoya
picked up some skins from Guzman’s worktable to check,
Montoya again cautioned Guzman to work more carefully
because he was overbuffing too many skins. This time
Guzman responded by stating that he was not able to work
more carefully than he had been doing.23
Shortly thereafter, between 1:30 p.m. and 1:45 p.m., Mon-
toya discovered Guzman had overbuffed eight or nine addi-
tional skins since he had last inspected his work, so he in-
formed Foreman Ochoa about this and suggested that Ochoa
speak to Guzman. Ochoa took some of the overbuffed skins
and went to Guzman’s buffing wheel and showed him the
skins and asked him why he did not use the additional mats
which Ochoa had previously left for him. Guzman stated it
was not necessary for him to use the mats. Guzman did not
explain why he was overbuffing so many skins.24
Subsequently, shortly after 2 p.m., Montoya checked
Guzman’s work and discovered that since his last inspection,
Guzman had overbuffed between 10 and 12 more skins, so
he promptly informed Department Supervisor Hernandez
about this. Hernandez first looked at the overbuffed skins
and then called Guzman over to Montoya’s worktable. Her-
nandez, in Montoya’s presence, told Guzman he was over-
buffing too many skins and had continued to overbuff skins
even after being spoken to about the matter. Guzman an-
swered he had already stated the skins were bad. Hernandez
replied that both Hernandez and Ochoa had already told him
to be careful when buffing the skins and that Guzman had
not listened to their words of caution and that because of this
something would have to be done. Hernandez then contacted
Superintendent Davis and asked him to come to Montoya’s
worktable.25
141SAWYER OF NAPA
26 Nunez was obviously mistaken about the date of this warning inasmuch
as the record shows that he did not overbuff three skins on or about October
22 or on any date in that vicinity. He may have been referring to a hand-
written note dated August 22 which was submitted by Respondent to the State
of California Employment Development Department after Nunez’ discharge,
which states that Nunez was warned by Hernandez about overbuffing skins
and told if it happened again ‘‘he would be written up.’’ However, Respondent
presented no evidence whatsoever concerning that warning and, as described
supra, Nunez in effect denied having received such a warning and his denial
was not contradicted.
In response to Hernandez’ call, Davis arrived at Montoya’s
worktable at approximately 2:15 p.m., the start of the em-
ployees’ afternoon break period. Montoya went on his break,
leaving Hernandez and Davis. Hernandez told Davis Guzman
had overbuffed quite a number of skins and showed Davis
the overbuffed skins which had been stacked in a pile. Davis
looked at the tally sheet maintained by Montoya which
showed that from the time Montoya had inspected Guzman’s
work that day, he had inspected 98 skins worked on by
Guzman, of which 30 needed to be reworked and 23 had
been overbuffed. Davis also inspected most of the skins
which Guzman had overbuffed and counted at least 15 in the
pile before he stopped looking. Davis then asked Hernandez
to have Guzman come over to the checking table. When
Guzman came to the table, Davis, using Hernandez as his in-
terpreter, spoke to him. He asked Guzman, ‘‘what’s going
on?’’ and pointing to the pile of overbuffed skins, asked
Guzman ‘‘why did this happened [sic]?’’ Guzman did not
answer; he ‘‘shrugged’’ his shoulders. Davis told him that
short of taking a razor blade and cutting the skins or stealing
the skins, that overbuffing was just about the worst thing that
could be done to the skins. Davis told him, pending an inves-
tigation by management, he was being suspended and di-
rected him to punch out and go home. Guzman punched out
at approximately 2:25 p.m.; his regular workday would have
ended at 3:30 p.m.
The description of the aforesaid conversation between
Guzman and Davis is based upon Davis’ testimony. Guzman
testified that, speaking to him through Hernandez, Davis
showed him a pile of skins which he stated had been
overbuffed by Guzman, stated that Guzman had overbuffed
approximately 20 skins, and was going to be punished by
being sent home immediately. Guzman further testified that
the only thing he (Guzman) said in his defense was that,
when Davis stated he had overbuffed approximately 20 skins,
Guzman replied by stating, ‘‘there were not that many
skins.’’ During cross-examination, however, Guzman testified
he explained to Davis that some of the overbuffed skins in
the pile were not that much overbuffed, that they were only
a little overbuffed and told Davis that sometimes Respondent
let those go through. Guzman did not, however, include this
in his prehearing affidavit submitted to the Board, which
among other things, gave an account of his conversation with
Davis. Rather the affidavit, like his initial testimony, states
in effect that Guzman did not explain to Davis his reason or
reasons for overbuffing so many skins. I credited Davis’ de-
scription of this conversation, as set forth above, because his
testimonial demeanor was better than Guzman’s.
Guzman testified he informed the Board agent who ques-
tioned him in connection with the prehearing affidavit, which
he submitted to the Board on January 11, 1989, that on No-
vember 7, ‘‘I was burning skins and that I burnt an average
from 14 to 20 skins.’’ Guzman further testified that the rea-
son why he overbuffed so many skins on November 7 was
that some of the skins were very ‘‘soft,’’ others were ‘‘too
hard,’’ and others were already damaged. However, Guzman
also testified that the skins he was given on November 7 to
buff ‘‘were just like the skins that you get everyday when
you work at [Respondent].’’ In view of this admission and
Guzman’s failure to offer the above-described explanation to
Davis, I reject it. Rather I credit the testimony given by
Ochoa, Montoya, and Espinoza to the effect that there was
nothing wrong with the skins given to Guzman on November
7. Rather I find, as Montoya testified, that the skins worked
on by Guzman on November 7 ‘‘were workable if you work
them carefully and calmly.’’
d. Nunez’ discharge: background
Francisco Nunez went to work for Respondent in May as
a buffer and was employed in that capacity until his Novem-
ber 8 discharge. Plant Superintendent Davis testified that
Nunez was a ‘‘good’’ buffer and that prior to November 7
Respondent had no real problems whatsoever with the qual-
ity of his work. However, like Guzman, Nunez wanted to
transfer to another position. Thus, in October he asked a su-
pervisor of another department if there was a vacancy in that
department because Nunez stated he wanted to transfer into
that department from the skin finishing department. The su-
pervisor, after speaking to Davis, told Nunez that Davis
wanted him to remain in the skin finishing department as a
buffer.
The tally sheets which Respondent’s checkers first started
to maintain on August 22, show the following about the
quality of Nunez’ work: For the 4 days he buffed from Au-
gust 22 to the end of the month, he overbuffed 3 skins out
of 670 worked, for a 0.45-percent overbuff; in September for
the 7 days he buffed he overbuffed 12 skins out of 1242
worked, for a 0.97-percent overbuff; in October for the 16
days he buffed he overbuffed 14 skins out of 2964 worked,
for a 0.47-percent overbuff. The most skins overbuffed in
any one day by Nunez during his employment was when,
after having been employed as a buffer for only 3 weeks, he
overbuffed approximately 25 skins. Subsequently, the most
skins he overbuffed in any one day prior to November 7 was
when, on a day prior to August 22, he overbuffed six skins.
During the period from August 22 to November 7 the most
skins he overbuffed in any one day was on September 21
and October 10 when he overbuffed 4 skins on each of those
days—on September 21 he overbuffed 4 out of a total of 204
skins worked, for a 1.96-percent overbuff and October 10
overbuffed 4 out of a total of 184 skins worked, for a 2.17-
percent overbuff. His worst daily percentage of overbuffed
skins between August 22 and November 7 occurred October
10 when, as described supra, he overbuffed four skins.
Nunez’ uncontradicted and undenied testimony is that dur-
ing his employment with Respondent he received a total of
two work-related warnings, as follows: On ‘‘more or less’’
October 22 Supervisor Hernandez told him he was being
issued a disciplinary warning for having overbuffed three
skins;26 and, in October while employed for a day pulling
skins from the ovens and hanging them up, he left work at
the end of his workshift even though there where still several
skins remaining to be hung, and, as a result, was told by
Hernandez if he engaged in that conduct again he would be
issued a disciplinary warning. These were the only two
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Based upon the testimony of Montoya, Espinoza, and Ochoa. Nunez testi-
fied that 80 of the skins given to him on November 7 were ‘‘in kind of a
poor condition’’ to buff because they were damaged in various areas. He fur-
ther testified that when he was given 200 skins a day to buff that there would
be as many as 80 in poor condition, but normally he would only receive be-
tween 20 and 30 skins in poor condition. I credited the testimony of Montoya,
Espinoza, and Ochoa because their testimonial demeanor was better than
Nunez’ on this subject.
28 Based upon the testimony of Montoya, Espinoza, and Ochoa. I reject
Nunez’ testimony that he did not start his second buff until shortly after 12:30
p.m., the end of the lunchbreak period. The testimonial demeanor of Montoya,
Espinoza, and Ochoa was better than Nunez’ on this subject.
29 This description of Ochoa’s conversation with Nunez is based upon
Ochoa’s testimony. Nunez denied the conversation occurred. I credited
Ochoa’s testimony because his testimony that he spoke to Nunez at this time
was corroborated by the testimony of Montoya, whose testimonial demeanor
was good, and because Ochoa’s testimonial demeanor was better than Nunez’.
30 This description of Hernandez’ conversation with Nunez is based on Her-
nandez’ testimony. Nunez testified Hernandez did not at this time speak to him
about his work. i considered there is no mention of this conversation in Her-
nandez’ prehearing affidavit submitted to the Board and also considered that
in general Hernandez’ testimonial demeanor was poor. However, I credited his
testimony about this conversation because his testimony that he spoke to
Nunez at this time was corroborated by the testimony of Espinoza whose testi-
monial demeanor was good. But, I do not credit Hernandez’ further testimony
that at approximately 1:15 p.m. Montoya told him Nunez was continuing to
overbuff skins and as a result Hernandez again spoke to Nunez about his over-
buffing. Nunez in effect denied that such a conversation occurred, Montoya
did not corroborate Hernandez’ testimony, and Hernandez’ testimonial de-
meanor was poor. 31 Based upon a composite of the testimony of Espinoza and Montoya and
the tally sheet maintained by Espinoza.
warnings issued to Nunez by Hernandez during his employ-
ment.
(e) Nunez’ discharge: the events of November 7 and 8
On November 7 Nunez began work at his usual starting
time, 7 a.m., and was given 175 skins to buff. The quality
of the skins was normal, no different than the skins usually
given the buffers.27 Checker Montoya credibly testified,
‘‘they were workable if you work them carefully and calm-
ly.’’ Nunez finished his first buff of the skins at approxi-
mately 10 a.m. and at that time commenced his second
buff.28 Espinoza began checking Nunez’ second buff at ap-
proximately 10:15 a.m. She inspected his work until approxi-
mately 11 a.m. when the department’s other checker, Mon-
toya, began to check his work.
Shortly before 10:45 a.m. on November 7, while checking
the skins Nunez had buffed, Espinoza observed he had
overbuffed five or six skins. She promptly informed Foreman
Ochoa about this. Ochoa took some of the overbuffed skins
and went to Nunez’ buffing wheel. He told Nunez that he
had overbuffed approximately five skins. Nunez responded
by stating that the skins he had overbuffed were ones he had
reworked and that Espinoza, who Nunez stated did not know
how to properly check, had been having him unnecessarily
rework skins. Ochoa replied that the skins Nunez had
overbuffed were not reworked skins, but normal ones.29
Shortly thereafter, at approximately 11 a.m., Espinoza also
informed Department Supervisor Hernandez that Nunez had
overbuffed approximately five or six skins. Hernandez took
some of the overbuffed skins to Nunez’ workstation and
spoke to him. He showed Nunez the areas of the skins which
had been overbuffed and told him to be more careful. Nunez
said nothing.30
Espinoza, at about the same time she informed Hernandez
about Nunez’ overbuffing, also informed the department’s
other checker, Montoya, that Nunez had overbuffed five or
six skins. Montoya spent a few minutes with Espinoza look-
ing at the skins Nunez had overbuffed and then took over
the task of inspecting his work. As of this time, approxi-
mately a little after 11 a.m., Nunez had overbuffed 5 or 6
skins out of a total of 54 skins worked, of which 10 had
been reworked.31
At approximately 11:30 a.m. on November 7, Montoya ob-
served Nunez had overbuffed approximately five more skins
and told Ochoa about this. Subsequently, at approximately
1:40 p.m., Montoya observed Nunez had overbuffed three or
four more skins. Montoya at this time informed Ochoa that
Nunez was continuing to overbuff skins. Ochoa took two of
the overbuffed skins to Nunez’ workstation and showed them
to him and demonstrated to Nunez how to buff so as to
avoid overbuffing, and buffed two or three skins while
Nunez watched. Nunez’ response was to declare in a loud
voice that he did not perform miracles, that it was not worth
a ‘‘fuck,’’ and that he intended to look for another job.
Ochoa returned the skins to Montoya and instructed Montoya
to watch Nunez’ work very carefully because he did not
want any more overbuffed skins.
Subsequently at approximately 3:30 p.m., after observing
Nunez was still overbuffing skins, Montoya informed Ochoa
about this and stated Nunez had already overbuffed 12 skins.
Ochoa took two of the overbuffed skins and again went to
Nunez’ workstation and told him he was told him he was
still overbuffing, again demonstrated to him how to work
without overbuffing, and told him to take his time and do
the remainder of the skins carefully. Nunez’ only response
was to repeat that he was not a moracle worker, that he in-
tended to look for another job and that it was not worth a
‘‘fuck.’’
The description of the above conversations between Ochoa
and Nunez are based upon Ochoa’s testimony. Nunez testi-
fied his only November 7 conversation with Ochoa occurred
at Nunez’ workstation at approximately 3:40 and 4:40 p.m.
Regarding the 3:40 p.m. conversation, Nunez testified that
when Ochoa told him he was overbuffing too many skins,
he told Ochoa the skins he had been given were ‘‘kind of
poor’’ and Espinoza was returning too many skins to be re-
worked and that this might be the reason for his overbuffing.
Nunez further testified that Ochoa replied by agreeing that
Espinoza had returned too many skins to be reworked and
by stating that he (Ochoa) intended to assist Espinoza in
checking the skins. Regarding the 4:40 p.m. conversation,
Nunez testified Ochoa told him he had overbuffed 14 skins,
took Nunez over to the checker’s table to look at the pile
of skins he had overbuffed, that Nunez did not bother to in-
spect the pile of skins which Ochoa showed to him, but
Nunez did look at Espinoza’s tally sheet which showed he
had overbuffed 14 skins, and ended the conversation by ask-
ing Ochoa if management would be angry with him because
he had overbuffed the skins and whether it would cause him
a problem, and that Ochoa answered by stating ‘‘let’s see
what [Hernandez] says tomorrow morning.’’ Nunez denies he
told Ochoa he did not give a ‘‘fuck’’ or that he did not per-
form miracles or that he intended to find another job. I cred-
ited Ochoa’s testimony because his testimonial demeanor
was better than Nunez’ with respect to the disputed con-
versations and because Ochoa’s testimony in significant part
143SAWYER OF NAPA
32 This description of Ochoa’s remarks to Davis is based upon Davis’ testi-
mony which was corroborated by Ochoa’s testimony. I have considered that
Hernandez testified that shortly after he returned to work on November 7 from
his doctor’s appointment, that he also informed Davis that Nunez had given
Ochoa a ‘‘bad time’’ and further informed Davis that he (Hernandez) had tried
to show Nunez the areas he was overbuffing and told him to be more careful
in buffing, but that Nunez had not replied. I did not credit this testimony be-
cause Hernandez’ testimonial demeanor was poor and his testimony was not
corroborated by Davis’ testimony.
33 Davis testified that his reason for boxing and keeping Nunez’ overbuffed
skins was:
I thought I should have a record. I thought I should have his skins be-
cause I couldn’t understand why he could have overbuffed so many skins
in such a short period of time. I thought his actions were willful and in-
tentional. At the time I thought I should discharge him. But . . . in any
case of an employee who has any kind of service at all we normally like
to have a meeting and discuss . . . the action to be taken. [Tr. 534–535.]
Regarding Guzman, Davis testified that, in contrast to Nunez, ‘‘I didn’t
think Guzman’s actions at the time when I suspended him were intentional.
Careless, yes, but not intentional. In other words, my thought was that I would
suspend him [Guzman] and place him on a disciplinary reassignment to a
lower rated job when he returned to work.’’ (Tr. 535.)
34 I note that Montoya’s tally sheet for November 7 shows that on that day
Montoya had checked 158 skins which Nunez had buffed, that 60 of those
skins had been reworked skins, and 21 of the 158 skins had been overbuffed.
was corroborated by the testimony of Montoya whose testi-
monial demeanor was good.
Subsequently, at approximately 4:30 p.m., Montoya ob-
served Nunez had overbuffed more skins, so he notified
Ochoa about this. Since Supervisor Hernandez was not at
work, having left earlier that afternoon for a doctor’s ap-
pointment, they notified Plant Superintendent Davis about
Nunez’ overbuffing. Montoya showed Davis the pile of skins
Nunez had overbuffed that day. Davis told them to put those
skins to one side and he would return shortly.
Shortly thereafter, at approximately 5 p.m., Davis returned
with Personnel Manager Hood and Vice President Nino
Giacalone. They looked at the pile of skins Nunez had
overbuffed and while they were doing so Davis called Fore-
man Ochoa over and asked whether he had spoken to Nunez
about the overbuffing. Ochoa replied he had spoken to
Nunez but that Nunez had responded by stating he could not
produce miracles and that he was not a machine and had
been abusive toward Ochoa using foul and abusive lan-
guage.32 Davis directed that the overbuffed skins be placed
in a box, that Nunez’ name be placed on the box, and that
the skins be kept until management could discuss the matter
further.33
After discussing the matter Hood, Giacalone, and Davis
agreed Nunez should be suspended pending further investiga-
tion. Davis testified that Respondent’s only reason for sus-
pending Nunez was for ‘‘overbuffing about 20–22 skins (Tr.
533).’’34
On November 8, prior to the start of the workday, Davis
testified he instructed Hernandez that when Nunez came to
work that day he was not to be allowed to punch in for work
because he was suspended pending a review by management.
This was the extent of Davis’ testimony about his instruction
to Hernandez. Hernandez testified Davis also told him Nunez
was suspended because he had overbuffed a large number of
skins and had given Ochoa a bad time.
On November 8, when Nunez arrived for work, he was
notified by Hernandez that he could not work that day be-
cause he had overbuffed 20 skins. Nunez responded by stat-
ing it was his understanding he had overbuffed 14, rather
than 20 skins. Hernandez stated he had personally checked
the skins overbuffed by Nunez and found 20 overbuffed
skins. Nunez asked to speak to Superintendent Davis. Her-
nandez turned down this request, explaining to Nunez that
Davis already knew about the problem. Nunez then asked for
and was granted permission to talk to Foreman Ochoa.
Nunez walked over to where Ochoa was working and told
Ochoa he had been suspended. Ochoa replied by stating, ‘‘I
don’t know anything,’’ at which point Hernandez interrupted
by instructing Ochoa not to say anything and told Nunez to
leave.
(f) The November 8 meeting between Davis, Hood,
and Giacalone
Respondent presented evidence that the decision to dis-
charge Guzman and Nunez was the result of an early morn-
ing meeting held on November 8 between Plant Super-
intendent Davis, Personnel Manager Hood, and Vice Presi-
dent Giacalone. This evidence—the testimony of Davis,
Hood, and Supervisor Hernandez—is set forth and evaluated
in this section.
The pertinent part of Davis’ testimony concerning this
meeting follows. Davis told Hood and Giacalone that
Guzman’s overbuffing on November 7 had been caused by
‘‘total carelessness’’ and that since Guzman wanted to be re-
assigned that Davis thought Guzman should be given a 5-day
disciplinary suspension and then reassigned to another job as
requested. Regarding Nunez’ discipline, Davis stated there
was no excuse for his overbuffing so many skins on Novem-
ber 7 in such a short time period, that Nunez had also been
abusive and argumentative with Foreman Ochoa, and because
of this Davis had concluded his actions were ‘‘willful and in-
tentional’’ and he should be discharged. Hood took the posi-
tion Respondent should be even-handed and suspend both
Guzman and Nunez. Giacalone stated Ruby Hernandez
should be called into the meeting and his views solicited be-
cause he was Guzman’s and Nunez’ immediate supervisor.
Hernandez was called into the meeting. Davis told Her-
nandez that he thought Guzman should be suspended for 5
days and Nunez discharged and repeated to Hernandez the
reasons he previously had expressed to Hood and Giacalone
for this opinion. Hernandez agreed Nunez should be dis-
charged, but disagreed about Guzman’s suspension. Her-
nandez stated he thought Guzman was ‘‘entirely too quali-
fied, too skilled a buffer to have done that much damage in
short time without it being intentional’’ and stated it was his
opinion that Guzman, who wanted to be reassigned to an-
other job, had ‘‘willfully and intentionally overbuffed the
skins hoping to be reassigned.’’ Davis told Hood and
Giacalone he agreed with what Hernandez had stated and
that Guzman, as well as Nunez, should be discharged. Hood
and Giacalone agreed with this decision.
The pertinent part of Hood’s testimony concerning this
meeting is as follows. Davis recommended Guzman be sus-
pended for 5 days because he had overbuffed a large number
of skins on November 7 in a short period of time, which
Davis felt was due to ‘‘strictly carelessness.’’ Regarding
Nunez’ discipline, Davis stated Nunez in overbuffing the
skins on November 7 had done so ‘‘intentionally, delib-
erately’’ and because of this should be discharged. In support
of this Davis pointed out that Nunez had been hired strictly
for overbuffing and was a good buffer and there was no rea-
son for him to have overbuffed so many skins in such a short
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
period of time and that Nunez was also abusive to Foreman
Ochoa. Hood took the position that since Nunez and Guzman
had overbuffed a similar amount of skins that perhaps they
both should receive the same punishment; both be suspended
without pay for 5 days. Giacalone suggested that Supervisor
Hernandez be called into the meeting and his opinion solic-
ited. Hernandez entered the room. Hernandez agreed with
Davis that Nunez should be discharged and pointed out this
punishment was especially appropriate because Nunez had
been insubordinate to Foreman Ochoa. Regarding Guzman’s
discipline, Hernandez stated Guzman had previously asked
for a transfer to another position, that he was a good buffer
and as a good buffer should have known what he was doing,
and stated that if Respondent intended to discharge Nunez
then Guzman should also be discharged. At this point Her-
nandez left the room. Davis, Hood, and Giacalone, after dis-
cussing the matter further, all agreed that Guzman, like
Nunez, should be discharged because they agreed that, like
Nunez, Guzman had intentionally overbuffed skins in order
to be reassigned to another job.
Hernandez’ testimony concerning this meeting is as fol-
lows. After being called into the meeting, Hernandez was in-
formed by Davis, in the presence of Hood and Giacalone,
that Respondent intended to discharge Nunez for overbuffing
skins and for harassing Foreman Ochoa and intended to sus-
pend Guzman for 5 days without pay. Hernandez replied by
stating that, in Guzman’s case, he disagreed with the punish-
ment being imposed, that he thought Guzman should be dis-
charged because there was no excuse for such an experienced
and good buffer to have overbuffed so many skins in such
a short period of time, especially since Hernandez and Ochoa
had tried to assist him. Davis replied by informing Her-
nandez that ‘‘he agreed . . . with [Hernandez’] decision,’’ at
which point Hernandez left the room.
Late in January 1989, at Respondent’s place of business
in the presence of Respondent’s labor relations consultant,
David Comb, and Respondent’s personnel manager, Sandra
Hood, Hernandez was questioned about Guzman’s and
Nunez’ discharges by an agent of the Board and submitted
a signed sworn affidavit to the Board agent. In this affidavit,
after describing what Davis stated to Guzman on November
7 when Davis told Guzman to go home because he was sus-
pended, Hernandez went on to state the following:
I do not recall what happened after that [referring to
Guzman’s employment] but [Davis] probably told me
later that Guzman has been terminated. I do not recall
being present when Guzman was discharged. I don’t
think I recommended to Davis that Guzman be fired.
Hernandez testified he was incorrect when he stated in the
affidavit that, ‘‘I don’t think I recommended to Davis that
Guzman be fired,’’ because he testified that on November 8,
as set forth in his above-described testimony, ‘‘I did offer
my suggestion on firing Guzman.’’ Hernandez testified that
the reason he did not tell the Board agent about his Novem-
ber 8 meeting with Davis, Hood, and Giacalone was that ‘‘I
just really could not remember at that time.’’
Also relevant in evaluating the aforesaid testimony of
Hood, Davis, and Hernandez are the several statements made
by Respondent’s representatives, contemporaneously with
Guzman’s and Nunez’ discharges, when Respondent docu-
mented in its personnel files its reason for the discharges and
when Respondent explained the reason for the discharges to
the Employment Development Department for the State of
California and to the other buffers employed in the skin fin-
ishing department. These explanations are set forth below.
On November 8 Hernandez signed and Davis initialed
‘‘Personnel Change Order’’ forms which stated Guzman and
Nunez had been ‘‘discharged’’ and in the space entitled ‘‘ex-
planation’’ stated, ‘‘generating excessive waste of product.’’
On November 9 Hernandez filled out and signed and
Davis initialed a ‘‘Rehire Eligibility Request’’ form which
stated they did not recommend Guzman for rehire because he
‘‘overbuffed a large number of skins that was inexcusable.’’
Immediately after their discharges Guzman and Nunez
filed claims for unemployment compensation with the Em-
ployment Development Department for the State of Cali-
fornia. On November 14 Respondent, through Personnel
Manager Sandra Hood, filed written responses to their claims
with the Employment Development Department and in these
responses gave the following explanations for their dis-
charges:
[Guzman] was suspended pending investigation by
management on 11/7/88 for excessive overbuffing of
sheep skins after he had been warned several times.
[Davis, Hernandez and Hood] met to determine what
disciplinary action would be taken. It was decided that
[Guzman] had been warned a sufficient number of
times, and that we could no longer tolerate the ruining
of the product by [Guzman] any longer. It was decided
to discharge him for excessive waste of our product.
[Guzman] has been buffing since March of 1987 and
should not have been making this type of error.
. . . .
[Nunez] was suspended pending investigation by
management on 11/7/88 for excessive overbuffing of
sheep skins after he had been warned several times.
[Davis, Hernandez and Hood] met to determine what
disciplinary action would be taken. It was decided that
[Nunez] had been warned a sufficient number of times,
and that we could no longer tolerate the continual ruin-
ing of the product any longer. It was decided to dis-
charge him for excessive waste of our product.
In November, soon after Nunez’ and Guzman’s discharges,
the other buffers employed by Respondent went to Personnel
Manager Hood and told her that Nunez’ and Guzman’s dis-
charges had made them nervous because they felt that, like
Nunez and Guzman, they would be discharged for over-
buffing. As a result of these expressed concerns, Hood ar-
ranged for Plant Superintendent Davis to meet with the buff-
ers later that same day. During their meeting with Davis the
buffers told him that the reason they were overbuffing a lot
of skins was that they were being required to do too much
work in too short a period of time. Davis responded by stat-
ing he would consider their complaint and see if a solution
could be found, but also told them he expected no more than
four or five skins to be overbuffed by a buffer in a single
day and if anyone overbuffed more than that number of skins
he ‘‘could’’ be discharged. One of the buffers asked why
Nunez and Guzman had been discharged. The only expla-
nation which Davis gave in response to this question was
that Guzman and Nunez ‘‘had burnt too many skins and that
145SAWYER OF NAPA
that kind of work was not in the best interest of the Com-
pany.’’
As described supra, Davis and Hood testified in effect that
on November 8, after consulting with Hernandez, that Davis,
Hood, and Giacalone decided to discharge Guzman and
Nunez and in doing so worded their decision not in terms
of Guzman and Nunez having overbuffed a large number of
skins without any good reasons, but in terms of Guzman and
Nunez having ‘‘willfully’’ and ‘‘intentionally’’ overbuffed a
large number of skins. I do not credit their testimony for the
following reasons.
Davis’ and Hood’s testimonial demeanor was poor when
they testified about the November 8 meeting.
Davis’ and Hood’s testimony about the November 8 meet-
ing was not, in significant part, corroborated by Hernandez’
testimony. Hernandez testified that when Davis explained his
reason for concluding that Nunez should be discharged, that
Davis merely stated Nunez was being discharged for over-
buffing skins and for harassing Foreman Ochoa. Hernandez
did not testify that Davis indicated expressly or by implica-
tion that Nunez was being discharged because Davis believed
he had willfully or intentionally overbuffed skins. Hernandez
further testified in effect that when Hernandez expressed his
disagreement with Davis’ conclusion that Guzman should be
suspended, rather than discharged, that Hernandez did not, as
Davis testified, state that Hernandez thought Guzman should
be discharged because Guzman had ‘‘willfully and Inten-
tionally overbuffed the skins hoping to be reassigned.’’ Rath-
er Hernandez testified he told Davis that Guzman should be
discharged because Hernandez felt there was no excuse for
such an experienced and good buffer to overbuff so many
skins in such a short period of time, especially when Her-
nandez and Ochoa had tried to assist him. In other words,
Hernandez’ testimony does not corroborate Davis’ and
Hood’s testimony that at the November 8 meeting Davis and
Hernandez worded their belief that Guzman and Nunez
should be discharged in terms of their having willfully and
intentionally overbuffed skins.
Contemporaneously with Guzman’s and Nunez’ discharge,
in documenting the reason for the discharges for its per-
sonnel records and in explaining the reason for the dis-
charges to its other buffers and to the State of California’s
Employment Development Department, Respondent did not
expressly or by implication state that Nunez and/or Guzman
had been discharged for having willfully or intentionally or
deliberately overbuffed skins. Rather, in Guzman’s and
Nunez’ ‘‘Personnel Change Order’’ forms, Davis and Her-
nandez stated that they had been discharged for ‘‘generating
excessive waste of product,’’ and in Guzman’s ‘‘Rehire Eli-
gibility Request’’ form Davis and Hernandez stated Guzman
was not eligible for rehire because he had ‘‘overbuffed a
large number of skins that was inexcusable.’’ Subsequently,
in contesting Nunez’ and Guzman’s unemployment com-
pensation claims, Respondent’s personnel manager, Hood, in-
formed the California Employment Development Department
that the reason for Guzman’s and Nunez’ discharges was that
Respondent had decided they had been warned a sufficient
number of times about overbuffing, that Respondent could no
longer tolerate the ruining of the product by them, so ‘‘it was
decided to discharge [them] for excessive waste of our prod-
uct.’’ Finally, and most significantly, when Respondent’s
other buffers asked Davis for an explanation of Nunez’ and
Guzman’s discharges they were not informed by Davis, ex-
pressly or by implication, that they were discharged for hav-
ing overbuffed skins willfully or intentionally. Rather, Davis
told the buffers that Guzman and Nunez had been discharged
because ‘‘they had burnt too many skins and that that kind
of worker was not in the best interest of the Company.’’ If,
during this period of time, Respondent’s management met
and decided to discharge Guzman and Nunez because they
had overbuffed skins willfully and intentionally, I find it in-
credible that Respondent’s management did not even once,
expressly or by implication, indicate that either one of them
had been discharged for overbuffing skins willfully or inten-
tionally, when management documented the discharges for
Respondent’s personnel files, explained the discharges to the
other buffers, and explained the discharges to an agency of
the State of California when contesting Nunez’ and
Guzman’s unemployment compensation claims.
Lastly, when viewed in the context of the above cir-
cumstances, Respondent’s failure to call its vice president,
Nino Giacalone, to corroborate the testimony of Davis and
Hood warrants the inference that his testimony would have
been adverse to the Respondent had he testified. See Inter-
national Automated Machines, 285 NLRB 1122 (1987);
Paramount Poultry, 294 NLRB 867, 868 (1989). According
to Davis’ and Hood’s testimony, Giacalone was responsible
for Hernandez being called into the meeting which in effect
led to Guzman’s discharge for overbuffing skins intentionally
and willfully. Yet, as described supra, Hernandez failed to
corroborate Davis’ and Hood’s testimony that Hernandez
based his recommendation that Guzman be discharged upon
a belief that Guzman’s overbuffing had been done willfully
and intentionally. I also note there is evidence which makes
me wonder whether Giacalone was in fact present at the No-
vember 8 meeting or whether in fact such a meeting was
ever held. In this regard, as described supra, when Personnel
Manager Hood responded to Guzman’s and Nunez’ claims
for unemployment compensation, Hood informed the Em-
ployment Development Department for the State of Cali-
fornia that it was Davis, Hood, and Hernandez rather than
Davis, Hood, and Giacalone who met to determine what dis-
ciplinary action would be taken against Guzman and Nunez.
Hood’s testimony that she had forgotten that Giacalone at-
tended that meeting, as her excuse for not placing him at the
meeting, does not ring true since Giacalone supposedly as-
sumed a significant role at that meeting; it was Giacalone
who supposedly was the person responsible for Hernandez
being called into the meeting and consulted by Davis, Hood
and Giacalone. Also, as described supra, in his prehearing af-
fidavit submitted to the Board, Hernandez did not mention
this meeting nor the fact that he was called into a meeting
where he recommended or suggested to Davis, Hood, and
Giacalone that Guzman be discharged, rather than suspended.
Hernandez testified that his reason for not informing the
Board agent who took his affidavit about this meeting was
that, ‘‘I just really could not remember at that time.’’ This
explanation does not ring true because if Davis and Hood are
to be believed it was Hernandez’ recommendation which re-
sulted in Guzman being discharged, rather than just merely
suspended, and that Hernandez knew this. In short, I find it
inconceivable that Hernandez would have forgotten about
such a significant event concerning Guzman’s discharge or if
the meeting occurred as Hood testified, that Hood would not
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Hernandez did not deny he acted as Davis’ interpreter during Davis’ dis-
charge interview with Guzman. He was not questioned about this subject.
36 Hernandez did not deny he was present during this interview. He was not
questioned about this matter.
have refreshed his memory about this occasion before he af-
fixed his signature to his affidavit. These additional cir-
cumstances, in my opinion, lend further support to the infer-
ence that Giacalone’s testimony would have been adverse to
the Respondent if he had testified.
It is for all of the above reasons, in their totality, that I
find Davis and Hood were not telling the truth when they
testified that at a meeting held December 8 that in deciding
to discharge Nunez and Guzman that management worded
the discharge decision in terms of a belief that Nunez and
Guzman had overbuffed the skins willfully and/or inten-
tionally.
(g) The discharge of Guzman and Nunez
Plant Superintendent Davis testified that on the afternoon
of November 8, in Respondent’s conference room, he person-
ally informed Guzman about his discharge. When asked if
anyone was present besides himself and Guzman, Davis testi-
fied ‘‘I believe probably Luc to translate [referring to Luz
Zavalza, Personnel Manager Hood’s assistant].’’ Davis fur-
ther testified he gave the following explanation to Guzman
for his discharge:
I told him that he was being discharged for willfully
overbuffing and destroying company property by over-
buffing skins. Excessive waste of product I think was
the actual term I used.
Davis testified he then handed Guzman his final paycheck
and Guzman did not respond or say anything in his defense.
Guzman testified he returned to Respondent’s premises on
November 9, shortly before 7 a.m. to go to work, and that
Hernandez took him to Davis and, with Hernandez acting as
an interpreter,35 Davis told Guzman he had overbuffed 20
skins on November 7. Guzman testified he replied by telling
Davis he had only overbuffed 14 skins and Davis answered
by stating that the number was unimportant, that Guzman
had overbuffed too many and that because of this Respond-
ent did not want him in its employ anymore. Guzman testi-
fied he then asked if Davis could transfer him to another job
rather than discharge him and that Davis told him it was not
possible to transfer ‘‘people like him’’ and told him to return
for his final paycheck later at 8 a.m., which Guzman did.
Davis testified he notified Nunez about his discharge on
November 9 in an office adjacent to Respondent’s con-
ference room and, in response to a leading question, testified
that Luz Zavalza was present to translate. Davis was not
asked whether anyone else was present and did not testify
that the only persons present were himself, Zavalza, and
Nunez. Davis testified he told Nunez ‘‘essentially the same
thing’’ as he had told Guzman, namely, ‘‘that he was being
discharged for generating excessive waste of product’’ and
that Nunez responded by arguing Respondent expected too
much production. Davis testified he then told Nunez that
‘‘nobody was disciplining him for the number of skins he
was doing’’ but stated Nunez was being discharged ‘‘strictly
and simply’’ for ‘‘overbuffing the skins’’ and gave him his
final paycheck.
Nunez testified that on November 8 Luz Zavalza tele-
phoned him and told him to come to Respondent’s office at
3:30 p.m. that day. He testified that when he arrived at Re-
spondent’s office that Davis spoke to him in English and
Zavalza translated and Hernandez was present also during
this interview.36 Nunez further testified that Davis told him
he was discharged because he had overbuffed 21 skins and
Respondent could not employ anyone who worked that poor-
ly because Respondent could go broke if it employed such
persons. Nunez testified he protested that he had only
overbuffed 14 skins and asked Davis to give him another
chance and when Davis refused to give him another chance,
Nunez told him that other persons had overbuffed skins and
had not been discharged and Davis stated he did not want
to talk about other people, that he was just speaking about
Nunez.
As described supra, one of the significant things about
Davis’ testimony concerning his discharge interviews with
Guzman and Nunez is that Davis did not inform either of
them that the reason they were being discharged was for hav-
ing willfully or intentionally overbuffed skins, nor did he use
words to that effect. According to Davis, he simply repeated
to them the explanation for their discharges which had been
set forth in the ‘‘Personnel Change Orders’’ placed in their
personnel files; he told them they were being discharged for
‘‘generating excessive waste of product.’’ I recognize that at
one point Davis testified he told Guzman he was ‘‘dis-
charged for willfully overbuffing and destroying company
property,’’ but in the same breath Davis changed that testi-
mony by testifying that the ‘‘actual words’’ he used was
‘‘excessive waste of product’’ and subsequently, in describ-
ing the actual words he used to explain Nunez’ discharge,
testified he told Nunez essentially the same thing as he had
told Guzman, namely, ‘‘that he was being discharged for
generating excessive waste of product.’’ In any event, I do
not credit Davis’ description of his discharge interviews with
Guzman or Nunez, rather I credit Nunez’ and Guzman’s ac-
count of those interviews because their testimonial demeanor
was better than Davis’, whose testimonial demeanor was
poor when he testified about the interviews. I have consid-
ered that I discredited Guzman’s testimony regarding his No-
vember 7 conversation with Davis and have considered that
Guzman lied to the Employment Development Department
for the State of California when, in filing his unemployment
compensation claim, he stated he had been laid off for lack
of work, rather than discharged. Nonetheless, based upon my
observation of the witnesses’ demeanor I am persuaded that
Guzman was the more credible witness concerning what oc-
curred when he was notified by Davis about his discharge.
(h) Davis informs Potter about Nunez’ and
Guzman’s discharge
William Potter is a vice president of Respondent and presi-
dent of its Sawyer Tanning Company Division, the division
which operates the facility involved in this case. President
Potter exercises overall responsibility for the facility’s oper-
ation and Plant Superintendent Davis reports directly to him.
In November Potter was absent on business from the facil-
ity until the week of November 21. When he returned he met
with Davis during the week of November 21 and was
brought up to date on what had occurred while he was away.
147SAWYER OF NAPA
Davis and Potter testified that one of the matters mentioned
by Davis to Potter was Guzman’s and Nunez’ discharges.
Their testimony concerning Davis’ remarks to Potter about
Nunez’ and Guzman’s discharges is set forth and evaluated
in this section.
Davis testified he told Potter ‘‘we discharged Nunez and
Guzman because they were in my opinion intentionally over-
buffing skins.’’ In the case of Nunez’ discharge, Davis testi-
fied he explained to Potter that Foreman Ochoa had talked
to Nunez about Nunez’ overbuffing, that Nunez had not co-
operated, but instead acted very belligerent and told Ochoa
that he (Nunez) was not a machine, and that in Davis’ opin-
ion ‘‘[Nunez’] actions were intentional.’’ In the case of
Guzman’s discharge, Davis testified he explained to Potter
that Guzman was unable to explain or defend his overbuffing
and supervision had talked the matter over and decided his
actions, like Nunez’, were also ‘‘intentional.’’
Potter testified Davis told him Nunez had overbuffed a
large number of skins within a short period of time, that the
number of skins overbuffed constituted a high percentage of
Nunez’ work, that Nunez had been uncooperative with his
supervisors to the point of abusing them with foul language
when questioned about his overbuffing, and told Potter ‘‘that
under the circumstances [referring to the aforesaid cir-
cumstances described to Potter] he [Nunez] had been termi-
nated.’’ In the case of Guzman’s discharge, Potter testified
Davis reminded him Guzman was one of Respondent’s best
buffers, who had trained other buffers, but told him Guzman
had overbuffed a large number of skins in a fairly short pe-
riod of time and had not pointed to any problems with the
skins which would have caused him to have overbuffed
them. Potter further testified that Davis told him he had been
told that Guzman was seeking a reassignment to another job
and that Davis had decided Guzman had overbuffed the skins
deliberately in order to be reassigned to another job and had
reached this decision because Guzman was so highly skilled
and had trained all of the other buffers and could offer no
explanation for overbuffing so many skins.
I have no doubt that at some point in time Potter met with
Davis and that Davis explained to him the reason or reasons
why Guzman and Nunez were discharged. I am persuaded,
however, that their above-described testimony concerning
such a meeting is not credible. Initially, I note that their testi-
monial demeanor was poor when they testified about their
November conversation concerning Guzman’s and Nunez’
discharges. In addition, their testimony was not mutually cor-
roborative in certain significant respects. Potter did not cor-
roborate Davis’ testimony that Davis explained to Potter that
Davis had decided that Nunez’ overbuffing had been done
intentionally or that Nunez had been discharged for inten-
tionally overbuffing the skins. And when a comparison is
made of their testimony concerning Davis’ remarks to Potter
about Guzman’s discharge, it is apparent that Potter either
greatly embellished the conversation by adding numerous de-
tails which Davis failed to include in his testimony, or Davis
had a lapse of memory when he testified about that part of
the conversation. In view of Davis’ and Potter’s poor testi-
monial demeanor when they testified about this conversation,
I am of the view that the discrepancy between their testi-
mony was not the product of merely a lapse of memory, but
was a product of an effort by Davis and Potter to bolster Re-
spondent’s case and warrants the inference that Potter’s and
Davis’ account of the meeting was not reliable. Moreover, I
find it inherently incredible that Davis, in explaining to Pot-
ter the reason for Nunez’ and Guzman’s discharges, would
have told Potter they were discharged for intentionally over-
buffing skins when during this same period of time Davis did
not give this as the reason for their discharges when he docu-
mented the reason for their discharges for Respondent’s per-
sonnel files or when he explained the reason for their dis-
charges to the other buffers in Respondent’s employ. Nor did
Respondent give this as a reason when on November 14 it
explained its reason for discharging Nunez and Guzman to
the Employment Development Department for the State of
California in contesting Nunez’ and Guzman’s claims for un-
employment compensation. It is for all of these reasons that
I find Potter’s and Davis’ testimony concerning their Novem-
ber discussions of Nunez’ and Guzman’s discharges was un-
reliable and untrustworthy. I therefore reject it in its entirety.
(i) Respondent’s treatment of experienced buffers who
overbuffed too many skins
During Plant Superintendent Davis’ several years as super-
intendent, Guzman and Nunez have been the only buffers
discharged for reasons related to work performance. The rea-
son why Davis has discharged so few buffers for work per-
formance related reasons is that the position of a buffer is
a very demanding one and is a very difficult one to fill, so
once someone has been trained as a buffer Davis bends over
backwards to retain that person as a buffer. If, however, an
experienced buffer performs poorly and continues to perform
poorly after being warned or otherwise disciplined, then
Davis transfers that buffer to a less-demanding and lower
paying job. Likewise, if during a buffer’s initial 6- to 12-
week training period, the buffer by virtue of poor work per-
formance indicates he has no aptitude for the job, he will be
transferred to a less-demanding and lower paying job. The
record also reveals that if experienced buffers become un-
happy with buffing and their work performances become un-
satisfactory and they request a transfer to a less-demanding
job, that their transfer will usually be granted.
I have set forth below Respondent’s treatment of several
experienced buffers, whose work performance was unsatis-
factory and whose treatment by Davis the General Counsel
contends is relevant to an evaluation of Respondent’s motive
for discharging Nunez and Guzman.
(1) Alejandro Gonzalez
As noted supra, during the early part of November,
Alejandro Gonzalez was one of the buffers employed in Re-
spondent’s skin finishing department. He had been employed
by Respondent since 1977 and for at least the past 7 years
had been employed as a buffer in the skin finishing depart-
ment. On August 22 Skin Finishing Department Supervisor
Hernandez verbally warned Gonzalez about overbuffing too
many skins and told him he would be issued a written warn-
ing if it happened again. In approximately 2 weeks, on Sep-
tember 7, Gonzalez overbuffed 34 of the 142 skins he buffed
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 Based upon the lack of any documentation in Gonzalez’ personnel file in-
dicating he was warned or disciplined and the failure of either Hernandez or
Davis to testify that he was either disciplined or warned.
38 Davis did not give a copy of this memo to Gonzalez. I note that Gonzalez
did not testify in this proceeding.
39 The investigation was carried out pursuant to the request of Respondent’s
vice president, William Potter, who as president of Respondent’s tannery divi-
sion is in charge of the Napa facility’s overall operation. Potter had been out
of town from the first part of November until the latter part of November.
40 Davis testified Martinez was transferred because the quality of his work
as a buffer was unsatisfactory and he had requested to be transferred. Then
in response to a leading question he further testified that another consideration
in deciding to transfer Martinez was his seniority with Respondent.
that day, for 23.94 percent of overbuffs. He was not warned
or otherwise disciplined because of this.37
On September 30 Gonzalez overbuffed 10 of the 210 skins
he buffed that day, for 4.76 percent of overbuffs. He was not
warned or otherwise disciplined because of this.
On October 4 Gonzalez overbuffed 11 of the 186 skins he
buffed that day, for 5.91 percent of overbuffs. As a result of
this he received a verbal warning from Supervisor Hernandez
for overbuffing too many skins.
On October 27 Gonzalez overbuffed 4 of the 82 skins he
buffed that day, for 4.88 percent of overbuffs. Then on No-
vember 1 he overbuffed 11 of the 152 skins he buffed that
day, for 7.24 percent of overbuffs. On November 1 Plant Su-
perintendent Davis spoke to Gonzalez about his overbuffing
and following their conversation wrote the following memo
addressed to him which he placed in his personnel file: 38
I have warned Alejandro Gonzalez that if the over
buffing problem continues he will be facing disciplinary
action, such as suspencion [sic], re-assignment, etc.
[Gonzalez] said he was doing the best he could and
thought the skins were bad but I told him:
1) As experienced as he is he should not damage that
many skins, he should stop, show the skins that he
thinks are a problem to his Foreman, use much less
preasure [sic], or finer grit.
2) The buffer get a run of skins mixed from all the
men wheelstaking, and all the buffers are not having
the same problems. So it has to be something he is
doing. *
*It is common for a man to have 2 or 3 skins during
the day more than that is excessive.
On Friday, November 4, Gonzalez overbuffed 16 of the
106 skins he buffed that day, for 15.09-percent overbuffs. As
a result at the end of the workday Hernandez went to Davis
and complained about the continuing problem he was having
with Gonzalez’ overbuffing. The next workday, Monday, No-
vember 7, when Gonzalez reported for work, he was in-
formed by Davis ‘‘that because of repeated overbuffing prob-
lems causing damage to the skins he was suspended 5 days
without pay and will be reassigned to a lower rated job when
he returns to work Monday 11/14/88.’’ Gonzalez responded
by handing Davis a note from his physician which was dated
November 5 and which stated in substance that for health
reasons Gonzalez should be transferred from his position as
a buffer to a position in the Company’s toggling department.
On November 14, when his 5-day suspension ended, Gon-
zalez was reassigned to a lower paying job in the toggling
department.
Late in November Respondent’s personnel department
commenced to investigate Gonzalez’ illness.39 In January
1989 by virtue of this investigation Respondent learned that
Gonzalez was suffering from hypertension and other health
problems which caused chest pains and dizziness and had
been coming to work since November 1 against the advice
of his physicians. In view of this, Respondent in January
1989 rescinded Gonzalez’ suspension and reimbursed him for
the wages lost as the result of the suspension.
(2) Alfredo Martinez
Alfredo Martinez has been employed by Respondent since
1976 and during his employment was employed as a buffer
in the skin finishing department for approximately 2 years
from approximately May 1986 to mid-May 1988. On May 17
he was transferred to a job in the toggling department under
the following circumstances.
As noted supra, prior to 1988 the buffers buffed the sheep
skins only once, but early in 1988 they began to buff the
skins two times as part of Respondent’s new process de-
signed to improve the quality of its product. Subsequent to
the introduction of the two-step buffing process Martinez
began having problems with his work and was informed by
the department’s supervisor that he was doing his job poorly
and warned if his work did not improve he would be fired.
Thereafter, in the middle of May, Martinez overbuffed ap-
proximately 20 skins one day and was issued a written dis-
ciplinary warning by the supervisor on account of this. Im-
mediately after being issued this warning, Martinez was spo-
ken to by Plant Superintendent Davis who told him he was
burning too many skins. Martinez told Davis he was not
happy working as a buffer and asked for a transfer to another
job. Davis responded by stating he realized Martinez was not
able to meet the increased quality standards recently insti-
tuted in the department and agreed to transfer him to another
job in the toggling department.40
The ‘‘Personnel Action Card’’ made out by Respondent
for Martinez’ transfer is dated May 17 and states he was re-
assigned to the position of wringer in the toggling depart-
ment with a reduction in pay and explains his transfer in
these terms: ‘‘Due to poor work performance the employee
being reclassified.’’ Attached to the ‘‘Personnel Action
Card’’ is a written disciplinary warning dated May 17 which
was signed by Davis and stated that Martinez,
is reassigned to wringing second shift dye shop due to
problems with his work performance while buffing. He
had been unable to adjust to the improved quality
standards. He has been counseled to adjust to the im-
proved quality standards. I told him that if there were
problems with his work performance in the new job.
[sic] disciplinary action, suspension or discharge will be
taken.
(3) Miguel Alvarez
Miguel Alvarez began work for Respondent in March and
since May has been employed as a buffer in the skin fin-
ishing department. On October 4 Department Supervisor Her-
nandez verbally warned him for overbuffing skins. There-
after, on November 2, after Alvarez overbuffed five skins the
previous day, Hernandez told him he intended to issue Alva-
149SAWYER OF NAPA
41 Based upon Alvarez’ undenied testimony.
42 I considered that Alvarez, during cross-examination, when asked ‘‘if there
was a problem with the quality of the skins on [December 5],’’ testified, ‘‘I
don’t remember exactly.’’ Nonetheless for the reasons set forth previously, I
reject Hernandez’ testimony and credit Alvarez’ testimony that the skins he
was given on December 5 were not ‘‘problem’’ skins. I also credit his testi-
mony that when he explained to Hernandez why he had overbuffed so many
skins, he did not word his explanation in terms of the poor quality of the
skins, and credit his testimony that his reason for overbuffing so many skins
on December 5 was that he just had a bad day. In so testifying, Alvarez,
whose testimonial demeanor was good impressed me as a sincere and con-
scientious witness.
rez a written disciplinary warning for overbuffing. Alvarez
pleaded with him not do this and Hernandez instead of
issuing a written warning simply told Alvarez to buff more
carefully.41 However, Hernandez placed in Alvarez’ per-
sonnel file a memo dated November 2 which stated Her-
nandez had ‘‘verbally warned Miguel Alvarez about over
buffing skins. He was told that if it doesn’t stop, he would
be facing a disciplinary action.’’
On December 5 Alvarez overbuffed 17 out of 178 skins
he buffed that day, for a 9.55-percent overbuff. Alvarez testi-
fied that the next day Hernandez told him he had overbuffed
too many skins the previous day and that Alvarez responded
by telling Hernandez he had been trying to be more careful
and that most of the time he did not overbuff skins and had
only overbuffed so many skins on two other occasions. Her-
nandez, as Alvarez testified, stated he would not discipline
Alvarez this time but that if Alvarez continued to overbuff
skins he would be suspended for 1 week. Alvarez further tes-
tified that the skins he was given to buff on December 5
were not ‘‘problem’’ skins and that the reason he overbuffed
17 skins that day was that ‘‘sometimes . . . you just have
bad days.’’ It is undisputed that on December 6 Hernandez
signed a memo which he placed in Alvarez’ personnel file
which stated: ‘‘Alvarez was told that if he did not improve
work performance and did not stop damaging skins he would
be laid off for 5 days without pay.’’
Hernandez testified that on December 5 he spoke to Alva-
rez about overbuffing skins and told him to be more careful
with the skins. He also testified that on December 5 ‘‘we [re-
ferring to Hernandez and Alvarez] worked together on that
problem. We noticed . . . he was handling some bad skins,’’
and that Hernandez told Alvarez ‘‘he was having some bac-
terial problems with the skins . . . but on the other parts of
the skin that he’d have to be a little more careful.’’ Her-
nandez further testified that later during the day, after lunch,
he again spoke to Alvarez about his overbuffing and told him
if he did not stop overbuffing skins he would be given a dis-
ciplinary layoff. Hernandez failed to explain why, if Alvarez’
overbuffing was caused by the poor quality of the skins, he
threatened him with a disciplinary layoff for overbuffing. In-
deed, when initially asked why he threatened Alvarez with
a disciplinary layoff, Hernandez testified he did not know.
He then testified that his reason for threatening Alvarez was
to give him an incentive to buff more carefully, but admitted
he had observed that Alvarez in fact was trying to buff care-
fully. Subsequently, Hernandez testified that if an experi-
enced buffer, such as Alvarez, was given poor skins to buff,
this did not give the buffer an excuse to overbuff the skins
because, as Hernandez testified, even if the quality of the
skins was bad, ‘‘if [the buffers] want to stop [overbuffing]
and they are experienced, they know how to stop [over-
buffing].’’ But when it was pointed out to him that he had
in effect testified that one of the reasons Alvarez had not
been disciplined for overbuffing 17 skins on December 5
was that the skins had been damaged by bacteria, Hernandez
changed his testimony; he now testified that whether or not
an experienced buffer, such as Alvarez, would be disciplined
would depend on the quality of the skins and not the experi-
ence of the buffer because even an experienced buffer
‘‘might’’ overbuff poor quality skins.
I do not credit Hernandez’ testimony that the quality of the
skins buffed by Alvarez on December 5 was poor or that all
or some of the skins had been damaged by bacteria. Her-
nandez’ testimonial demeanor was poor and, as described
supra, his testimony on significant matters was contradictory
or appeared to be incredible. Especially incredible is that
Hernandez wrote a note to Alvarez’ personnel file stating
that ‘‘Alvarez was told that if he did not improve his work
performance and did not stop damaging skins he would be
laid off for 5 days without pay,’’ yet supposedly believed
that Alvarez’ overbuffing of skins was caused in substantial
part by the poor quality of the skins he had been given to
buff. It is for all of these reasons that I reject Hernandez’
testimony.42 In doing so I considered that Plant Super-
intendent Davis testified during direct examination that he
‘‘believed’’ Hernandez mentioned to him that some of the
skins which Alvarez had overbuffed on December 5 had
been damaged by bacteria and that this condition may have
been a cause of his overbuffing. However, when Davis gave
this testimony he was hesitant and his testimonial demeanor
was poor. Also Hernandez failed to corroborate Davis’ testi-
mony that Hernandez spoke to Davis about this matter or
told Davis that the quality of Alvarez’ skins was poor. I also
note that when, during his cross-examination, Davis was
questioned about his conversation with Hernandez con-
cerning this matter, that Davis significantly omitted to men-
tion Hernandez said anything to him about the quality of the
skins buffed by Alvarez, rather he simply testified that Her-
nandez ‘‘told me he had a problem with overbuffing, that
he’d counseled [Alvarez], that he’d talked to [Alvarez], [Al-
varez] was making an effort to correct the situation, and he
thought he had the problem under control.’’
(4) Nabor Camarena
Nabor Camarena was employed as a buffer for several
months in 1987 and reassigned to that position in January
and on April 25 was transferred to another job with a reduc-
tion in pay, under these circumstances.
On March 9 Davis issued a written warning to Camarena
stating, ‘‘if he did not start getting more skins done with
good quality [that] disciplinary action; suspension, reassign-
ment, or discharge will result.’’ Subsequently he was reas-
signed on April 24 to another job with a lower rate of pay.
The ‘‘Notice of Personnel Action’’ placed in his personnel
file explains the reassignment in these terms: ‘‘Employee is
being reassigned as a disciplinary action due to poor work
performance after numerous warning notices.’’ Attached to
this notice was a memo from buffing Supervisor Hernandez
dated April 28 which stated Camarena ‘‘is being given a dis-
ciplinary reassignment . . . because of problems with re-
works and productivity in the buffing area.’’ Davis testified
that Camarena was reassigned to another job because he was
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unable to meet the Company’s production and quality stand-
ards under the newly instituted two-stage buffing system.
(5) Raul Baldaras, Juan Mesa, and Faustino Perez
On January 23, 1989, Supervisor Hernandez verbally
warned buffers Raul Baldaras and Juan Mesa for overbuffing
10 and 13 skins, respectively.
On November 2 Faustino Perez overbuffed 6 skins for a
4.11-percent overbuff and on November 28 again overbuffed
6 skins for a 6-percent overbuff. On neither occasion did he
receive a warning.
(j) Respondent’s reasons for discharging Nunez
and Guzman
Plant Superintendent Davis testified it was he who made
the decision to discharge Nunez and Guzman and testified in
effect that his decision was not based upon the fact that they
had overbuffed a large number of skins on November 7, but
that his decision was based upon his belief that they had ‘‘in-
tentionally overbuffed the skins, plain and simple’’ and testi-
fied that this was ‘‘the only reason,’’ that there was ‘‘no
other reason’’ for why they had been discharged (Tr. 542–
543). Davis testified that both Guzman and Nunez would still
be employed by Respondent if Davis had not concluded that
they had overbuffed the skins intentionally. Davis also testi-
fied that the warnings issued to Nunez and Guzman prior to
November 7 had nothing to do with his decision to discharge
them.
Davis testified in effect that in concluding Nunez and
Guzman had intentionally overbuffed the skins on November
7 that he relied on the following circumstances: the lack of
an apparent reason for so many skins to have been
overbuffed inasmuch as there was nothing wrong with the
skins which Nunez and Guzman had been given to buff;
Nunez and Guzman were experienced buffers whose quality
of work had previously been good; Guzman and Nunez
failed to offer any explanation for having so many overbuffs;
and, Nunez had been uncooperative when supervision spoke
to him about the problem.
2. Discussion
In NLRB v. Transportation Management Corp., 462 U.S.
393, 404–405 (1983), the Supreme Court approved the
Board’s procedural framework, first set forth in Wright Line,
251 NLRB 1083 (1980), for resolving the question of moti-
vation in alleged unlawful discrimination cases. Under this
analysis, an unfair labor practice is established if the General
Counsel shows that an employee’s protected conduct was ‘‘a
motivating factor’’ in the employer’s decision to take adverse
action against him, unless the employer can demonstrate, as
an affirmative defense, that it would have taken this action
even absent the employee’s protected conduct. NLRB v.
Transportation Management Corp., 462 U.S. at 395. Of
course, where the inference of unlawful motivation is based
in part on proof that the employer’s proffered lawful reason
is a mere pretext to disguise discrimination, the inquiry is
logically at an end. As the Board explained in Wright Line,
251 NLRB at 1084, where it has been shown that the
claimed lawful reason advanced by the employer either did
not exist or was not in fact relied on, there is no remaining
predicate for any determination that the adverse action would
have taken place even in the absence of the employee’s
union activity. See also Postal Service, 275 NLRB 510
(1985); Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982); Republic Die & Tool Co.
v. NLRB, 680 F.2d 463, 465 (6th Cir. 1982); NLRB v. Amer-
ican Geri-Care, Inc., 697 F.2d 56, 63–64 (2d Cir. 1982). For
the reasons set forth below, I find the General Counsel has
established that ‘‘a motivating factor’’ in the Respondent’s
decision to discharge employees Nunez and Guzman was
their union sympathies and activities and that Respondent
failed to establish they would have been discharged even ab-
sent their union sympathies and activities.
The timing of the discharges supports an inference of
antiunion motivation. As described in detail supra, on Octo-
ber 21 Respondent learned the Union was attempting to or-
ganize its production and maintenance employees and on No-
vember 4, by virtue of the Union’s letter, learned that
Guzman and Nunez were among the employees who sup-
ported the Union’s organizational campaign and on that same
day observed Guzman and Nunez wearing union photo iden-
tification badges and union buttons while at work. Respond-
ent discharged Guzman and Nunez only 2 working days after
it learned of their union sympathies and activities. Such a co-
incidence in time between Respondent’s knowledge of
Guzman’s and Nunez’ union sympathies and activities and
their discharges is strong evidence of an unlawful motive for
their discharges. NLRB v. Rain Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984) (timing alone may be sufficient to es-
tablish that antiunion animus was a motivating factor in a
discharge decision); NLRB v. Windsor Industries., 730 F.2d
860, 864 (2d Cir. 1984); Dayton Typographic Service, 778
F.2d 1188, 1193 (6th Cir. 1985).
Another factor which supports an inference of unlawful
motivation is that when it discharged Guzman and Nunez for
overbuffing too many skins, Respondent treated them dif-
ferently than other experienced buffers who overbuffed a
comparable number of skins. As described in detail supra,
when Respondent explained the reason for their discharges to
Guzman and Nunez, and to the other buffers, and to the Em-
ployment Development Department for the State of Cali-
fornia, and when it documented the reason for its personnel
records, Respondent stated in substance that Guzman and
Nunez had been discharged because on November 7 they
overbuffed too many skins. As I have found supra, on No-
vember 7 Guzman and Nunez each overbuffed approximately
22 or 23 skins. They were, however, the first buffers ever
discharged for overbuffing skins or discharged for a work-
related reason during Plant Superintendent Davis’ several
years as plant superintendent. This despite the fact, as de-
scribed in detail supra, that other buffers have had bad days
during which they overbuffed a comparable number of skins
as were overbuffed November 7 by Guzman and Nunez: One
day early in September, Alejandro Gonzalez overbuffed 34
skins; one day in the middle of May, Alfredo Martinez
overbuffed approximately 20 skins; and, one day early in De-
cember, Miguel Alvarez overbuffed 17 skins. Prior to the
day he overbuffed 34 skins, Gonzalez had received a verbal
warning from Supervisor Hernandez for overbuffing too
many skins and been threatened with a written disciplinary
warning if it happened again. Yet, he was not warned nor
disciplined when he later overbuffed 34 skins in early Sep-
tember, and when, subsequently on October 4 and November
151SAWYER OF NAPA
43 I have considered that, as set forth in detail supra, the person who decided
to discharge Guzman and Nunez, Plant Superintendent Davis, testified his de-
cision was not based upon the fact that they overbuffed an extraordinarily
large number of skins on November 7, but on his belief that they overbuffed
the skins intentionally, thus distinguishing their situation from the situation of
those buffers who overbuffed an excessive number of skins and were not dis-
charged or otherwise disciplined. As described infra, Davis’ explanation for
the discharges of Guzman and Nunez was advanced by Respondent for the
first time only when it was confronted with the unfair labor practice charges
in this case and was first expressed by Respondent’s labor relations consultant
in Respondent’s statement of position submitted to the Board’s Regional Di-
rector in response to those unfair labor practice charges. As I have found infra,
this explanation was an afterthought which was fabricated by Respondent
when it realized that the reason it initially advanced to justify the discharges,
the reason it gave Guzman and Nunez and placed in their personnel records
and offered to all interested third parties, would not withstand close scrutiny.
1, he again overbuffed too many skins, he received only
verbal warnings. Martinez, in early 1988, was notified by Su-
pervisor Hernandez that his work performance was poor and
warned by Hernandez if his work performance did not im-
prove he would be discharged. Yet, when he later overbuffed
approximately 20 skins one day in the middle of May, he
was only issued a written disciplinary warning by Hernandez
and counseled about his overbuffing by Plant Superintendent
Davis. Moreover, when, during his conversation with Davis,
Martinez stated he was not happy working as a buffer and
wanted to be transferred to another job, Davis responded by
transferring him to another job, albeit a lower paying one.
Alvarez, on October 4 and November 2, was verbally warned
by Supervisor Hernandez for overbuffing too many skins and
Hernandez placed a memo in his personnel file stating Alva-
rez would be disciplined if he did not stop overbuffing skins.
Yet, when Alvarez later overbuffed 17 skins on December 5,
he was not disciplined; he was only warned by Hernandez
that he would receive a 1-week suspension if he continued
to overbuff skins. Although Gonzalez, Martinez, and Alva-
rez, like Guzman and Nunez, were all experienced buffers,
Respondent held Guzman and Nunez in much higher esteem.
Thus, Davis testified that prior to November 7 the quality of
Guzman’s work had been ‘‘very good’’ and that he was one
of the Company’s best buffers, and further testified that
Nunez was a ‘‘good’’ buffer and that prior to November 7
Davis had no real problem with the quality of Nunez’ work.
Indeed, during their employment as buffers Guzman and
Nunez received only one warning each for overbuffing skins.
In view of the foregoing circumstances, it is clear that when
Respondent discharged Guzman and Nunez, it treated them
differently from Gonzalez, Martinez, and Alvarez, and that
this disparate treatment warrants an inference that Guzman’s
and Nunez’ discharges were discriminatorily motivated.43
Also relevant in evaluating Respondent’s motivation for
discharging Nunez and Guzman is the fact Respondent was
unable to settle on a reason for the discharges. Contempora-
neously with the discharges, when Respondent explained the
reason for the discharges to Guzman and Nunez and to the
other buffers in its employ, and when it documented the rea-
son for its personnel records, Respondent stated in substance
that Guzman and Nunez had been discharged because on No-
vember 7 they overbuffed an excessive number of skins.
However, in later contesting Guzman’s and Nunez’ unem-
ployment compensation claims, Respondent embellished con-
siderably upon this reason; it informed the Employment De-
velopment Department for the State of California that while
the excessive number of skins overbuffed on November 7 by
Guzman and Nunez triggered their discharges, that the reason
for the discharges was that each had been warned several
times previously about overbuffing skins and that since Re-
spondent could not tolerate their continual ruining of its
product any longer, it had decided to discharge them for
‘‘excessive waste of our product.’’ This explanation was pat-
ently false inasmuch as Respondent, as described supra, ad-
mits that prior to November 7 it had no problem with the
quality of the work performed by either Guzman or Nunez,
and admits that Guzman had been regarded as one of the
Company’s best buffers and Nunez had been regarded as a
‘‘good’’ buffer. Indeed at the hearing in this case, Plant Su-
perintendent Davis admitted that the isolated warnings issued
to Guzman and Nunez, prior to November 7, had absolutely
nothing whatsoever to do with the decision to discharge
them. Davis further testified that the fact that they overbuffed
an excessive number of skins on November 7 had nothing
whatsoever to do with their discharges; he testified that the
only reason for their discharges was his belief that when they
overbuffed the skins on November 7 that they had done so
intentionally. This explanation for the discharges was ex-
pressed by Respondent for the first time only when it was
confronted with the unfair labor practice charges filed in his
case and was first expressed by its labor relations consultant
in Respondent’s statement of position submitted to the
Board’s Regional Director in response to those charges. In
other words, as I have found supra, the record reveals Re-
spondent proffered several different and shifting reasons, one
of which was admittedly patently false, to justify Guzman’s
and Nunez’ discharges. These circumstances lend strong sup-
port to the inference that the only reason for the discharges
was Guzman’s and Nunez’ union sympathies and activities.
For, ‘‘an unfavorable inference may be drawn against the
company for its inability to settle upon an explanation for the
discharge. This failure ‘in itself lends support to the theory
that [the employees’] union support was the real expla-
nation.’’’ NLRB v. Teknor Apex Co., 468 F.2d 692, 694 (1st
Cir. 1972), quoting, A. J. Krajewski Mfg. Co. v. NLRB, 413
F.2d 673, 676 (1st Cir. 1969); see also NLRB v. Georgia Rug
Mill, 308 F.2d 89, 91 (5th Cir. 1956); and NLRB v. Superior
Sales, 366 F.2d 229, 234–235 (8th Cir. 1966).
Lastly, the inference of unlawful motivation for Guzman’s
and Nunez’ discharges is further supported by the pretextual
nature of Respondent’s claim that it discharged them because
the skins they overbuffed on November 7 were overbuffed
intentionally. In this regard, Plant Superintendent Davis testi-
fied he was the person who decided to discharge Guzman
and Nunez and that he did not decide to discharge them be-
cause they had overbuffed an excessive number of skins, but
his decision was based on his belief that they had ‘‘inten-
tionally overbuffed the skins, plain and simple,’’ and further
testified this was ‘‘the only reason’’ and there was ‘‘no other
reason’’ for their discharges (Tr. 542–543). However, con-
temporaneously with the discharges, as I have described in
detail supra, when Davis explained the reason for the dis-
charges to Guzman and Nunez and to the other buffers in
Respondent’s employ and documented the reason in Re-
spondent’s personnel records, Davis did not state, either ex-
pressly or by implication that Guzman or Nunez had been
discharged because they intentionally overbuffed skins. Rath-
er, he stated in substance that they had been discharged for
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 The nearest Davis came to saying that he believed either Guzman or
Nunez intentionally overbuffed skins was when, on November 7, in sus-
pending Guzman he told Guzman that short of taking a razor blade and cutting
or stealing the skins, overbuffing was the worst thing a buffer could do to the
skins. However, the record reveals that when Davis stated this, that he was
not implying that Guzman acting intentionally; rather he was implying
Guzman had been ‘‘careless.’’ Thus, Davis testified that the reason he decided
on November 7 to suspend Guzman, rather than discharge him was that he
had concluded that Guzman had acted ‘‘carelessly,’’ not intentionally, in over-
buffing the skins.
45 I have considered Respondent’s contention that the record herein contains
several objective considerations, in existence during the time material, which
could have led Davis to reasonably conclude that Nunez and Guzman had
overbuffed the skins on November 7 intentionally. However, whether Davis
could have reasonably concluded that Guzman and Nunez on November 7 in-
tentionally overbuffed the skins is beside the point, because I am persuaded,
for the reasons set forth above, that Davis’ testimony that he discharged
Guzman and Nunez because he believed they intentionally overbuffed the
skins was an afterthought designed to mask Respondent’s real reason for the
discharges.
46 In so concluding I considered the lack of direct evidence that Respondent
was antagonistic toward employees who favored union representation and the
failure of the General Counsel to allege that Respondent discharged or dis-
ciplined any of the other employees whose union sympathies and activities the
Respondent was aware of. Regarding the lack of direct evidence of union ani-
mus, the law is settled that even without direct evidence of union animus, the
Board, in proper circumstances may infer animus. E.g., Stoffel Seals Corp.,
199 NLRB 1084 (1972); NLRB v. Ri-Dell Tool Mfg. Co., 486 F.2d 1406, 1407
(7th Cir. 1973); and NLRB v. Warren L. Rose Casting, 587 F.2d 1005, 1007
(9th Cir. 1978). Here, for the reasons set forth above, the circumstances war-
rant an inference of antiunion animus. Regarding the General Counsel’s failure
to allege that other known union adherents have been discharged or disciplined
because of their union sympathies and activities, it is settled that an employ-
er’s discriminatory motive is not disproved by evidence showing ‘‘that it did
not weed out all union adherents.’’ Nachman Corp. v. NLRB, 337 F.2d 421,
424 (7th Cir. 1964). Accord: NLRB v. Challenge-Cook Bros. of Ohio, 374 F.2d
147, 152 (6th Cir. 1967); NLRB v. Instrument Corp. of America, 714 F.2d 324,
330 (4th Cir. 1983).
overbuffing an excessive number of skins.44 Likewise, when
Personnel Manager Hood, who was involved with Davis in
making the decision to discharge Guzman and Nunez, con-
tested Guzman’s and Nunez’ unemployment compensation
claims, she did not state either expressly or by implication
that they had been discharged because they intentionally
overbuffed skins. Rather she informed the Employment De-
velopment Department for the State of California that they
had been discharged for overbuffing an excessive number of
skins on November 7 and because they engaged in this con-
duct despite the fact that they each had been warned several
times previously for overbuffing skins and that since Re-
spondent could not tolerate their continual ruining of its
product any longer, it had decided to discharge them for
‘‘excessive waste of our product.’’ Respondent’s belated con-
tention that Guzman and Nunez overbuffed the skins inten-
tionally was first expressed by Respondent only after it was
confronted with the unfair labor practice charges filed in this
case and was first expressed by Respondent’s labor relations
consultant in Respondent’s statement of position submitted to
the Board’s Regional Director in response to those charges.
If Respondent had discharged Guzman and Nunez because it
believed they overbuffed the skins intentionally on Novem-
ber 7, it is incredible that Respondent would have waited
until being confronted with the unfair labor practice charges
before advancing that as the reason for their discharges. I
find it inconceivable that if Respondent discharged Guzman
and Nunez because it believed they overbuffed the skins in-
tentionally on November 7, that Respondent did not say this
to either Guzman or Nunez when it explained to them the
reason why they were discharged, or did not say this in its
personnel records, or did not say this to its other buffers
when they asked why Guzman and Nunez had been dis-
charged, or did not say this to the Employment Development
Department for the State of California when Respondent con-
tested Guzman’s and Nunez’ unemployment compensation
claims. It is for these reasons and because of Davis’ poor
testimonial demeanor when he testified that his decision to
discharge Guzman and Nunez was based on his belief that
they had overbuffed the skins on November 7 intentionally,
that I find Respondent’s claim that Nunez and Guzman were
discharged because they overbuffed skins intentionally was
an afterthought which was fabricated by Respondent when it
realized that the reason it had initially advanced to justify the
discharges would not withstand close scrutiny.45 In other
words, I find Respondent’s claim that Nunez and Guzman
were discharged because they overbuffed skins intentionally
is a pretext, which lends further support to the inference that
the real reason for their discharges was their union sym-
pathies and activities. For, the law is settled that if the prof-
fered reason for a discharge is false, one may infer that there
is another reason (an unlawful reason) for the discharge that
the employer wishes to hide, where, as in the instant case,
the surrounding facts tend to reinforce that inference. Wright
Line, supra at 1088 fn. 12; Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); see also Postal
Service, 275 NLRB 510 (1985).
Considering the timing of Guzman’s and Nunez’ dis-
charges, coming as they did hard on the heels of Respond-
ent’s knowledge of their union sympathies and activities;
considering Respondent treated them differently than other
experienced buffers who overbuffed an excessive number of
skins; considering Respondent’s inability to settle on a rea-
son to justify their discharges; and, considering the pretextual
nature of the reason Respondent belatedly advanced in this
proceeding to justify the discharges; I find the General Coun-
sel has established that a motivating factor in Respondent’s
decision to discharge Guzman and Nunez was their union
sympathies and activities.46 The General Counsel therefore
has presented a prima facie case that Guzman and Nunez
were discharged because of their union sympathies and ac-
tivities. Under Wright Line, Respondent must show that it
would have discharged these employees anyway, absent their
union sympathies and activities. Since I have found, supra,
that the proffered reason for the discharges was a pretext, I
conclude that the Respondent has not met its Wright Line
burden. Therefore, I find that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Salvador
Guzman on November 9 and Francisco Nunez on November
8 because of their union sympathies and activities.
The complaint does not allege that Respondent’s Novem-
ber 7 decision to suspend Guzman and Nunez violated the
Act, it only alleges that their subsequent discharges violated
the Act. The record reveals, however, that their suspensions
and subsequent discharges are factually and legally inter-
twined, thus giving Respondent ample notice that the legality
of its motivation in suspending Guzman and Nunez would be
an issue in this proceeding. It is not surprising therefore, that
the issue of Respondent’s motivation in suspending Guzman
and Nunez was fully litigated by the parties. It is for these
reasons that I have considered the legality of Respondent’s
November 7 decision to suspend, prior to discharging,
153SAWYER OF NAPA
47 If no exceptions are filed as provided by Sec. l02.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. l02.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Guzman and Nunez. For the reasons below, I find that on
November 7 Respondent suspended them because of their
union sympathies and activities, thereby violating Section
8(a)(3) and (1) of the Act.
As described supra, on November 7 Plant Superintendent
Davis decided to suspend Guzman and Nunez and informed
Guzman of this decision prior to the end of Guzman’s
workshift on November 7 and informed Nunez on November
8 when Nunez came to work. Subsequently, on November 8,
as I have found supra, Respondent decided to discharge
Guzman and Nunez because of their union sympathies and
activities.
Davis testified he decided on November 7 to suspend
Guzman because, after inspecting the skins Guzman had
overbuffed that day, Davis concluded Guzman had acted
carelessly in overbuffing so many skins and decided that be-
cause of this carelessness he would suspend him and at that
time also decided that after the period of suspension ended
he would then discipline Guzman further by reassigning him
to a lower paying job. In the case of Nunez’ suspension,
Davis testified that after inspecting the skins Nunez
overbuffed on November 7 and after considering the matter,
Davis concluded Nunez had acted willfully and intentionally
in overbuffing the skins and for this reason Davis testified
he decided to discharge him. Davis further testified that be-
cause Guzman and Nunez were experienced workers who
had been employed by Respondent for several months that
he also decided that before he meted out the above-described
discipline, he would discuss the matter with other members
of management.
The timing of Davis’ decision to suspend Guzman and
Nunez, virtually contemporaneously with Respondent’s
knowledge of their union sympathies and activities, and the
fact that the day after it decided to suspend them that Re-
spondent discharged them because of their union sympathies
and activities, establishes that a motivating factor for their
suspensions was their union sympathies and activities. The
General Counsel therefore has presented a prima facie case
that Guzman and Nunez were suspended because of their
union sympathies and activities. Under Wright Line, Re-
spondent must show it would have suspended them anyway,
absent their union sympathies and activities. Since I have
found supra, that Respondent’s proffered reason for Nunez’
suspension—the intentional overbuffing of skins—was a pre-
text, I conclude Respondent has not met its Wright Line bur-
den in Nunez’ case.
Regarding Respondent’s justification for suspending
Guzman, his overbuffing of an excessive number of skins on
November 7 due to carelessness, Respondent presented no
evidence that it has ever suspended an experienced and val-
ued buffer, such as Guzman, who had previously enjoyed an
exemplary work record, for one day overbuffing an excessive
number of skins. Quite the opposite, the record reveals that
in being suspended for overbuffing an excessive number of
skins on November 7, Guzman was the victim of disparate
treatment. For, as I described in detail supra, Alejandro Gon-
zalez, Alfredo Martinez, and Miguel Alvarez, buffers not
nearly as well regarded by Respondent as Guzman, were not
suspended from work when, like Guzman, they overbuffed
an extremely large number of skins in a single day. Under
the circumstances I find Respondent has not established that
it would have suspended Guzman on November 7 even ab-
sent his union sympathies and activities.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By suspending Victor Camacho on October 21, 1988,
and discharging him on October 24, 1988, because of his
protected concerted activity, Respondent violated Section
8(a)(1) of the Act.
4. By suspending Francisco Nunez and Salvador Guzman
on November 7, 1988, and discharging Nunez on November
8, 1988, and discharging Guzman on November 9, 1988, be-
cause of their union sympathies and activities, Respondent
violated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, I shall recommend that the Respondent be or-
dered to cease and desist therefrom and from any like or re-
lated manner infringing upon its employees’ Section 7 rights,
and to take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent violated the Act by sus-
pending and discharging Victor Camacho, Francisco Nunez,
and Salvador Guzman, I shall recommend that Respondent
offer each of them immediate and full reinstatement to their
former positions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights and privileges. I shall also rec-
ommend that the Respondent make Victor Camacho, Fran-
cisco Nunez, and Salvador Guzman whole for any loss of
earnings and other benefits they may have suffered as a re-
sult of their unlawful suspension and discharges, with back-
pay to be computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest to be
computed in the manner set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987). I shall also recommend
that the Respondent remove from its records any reference
to the unlawful suspensions and discharges, provide the
discriminatees with written notice of the removal, and inform
them that the unlawful suspensions and discharges will not
be used as a basis for future personnel actions concerning
them. See Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended47
ORDER
The Respondent, Sawyer of Napa, Inc., Napa, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
(a) Discharging, suspending, or otherwise discriminating
against employees because of their union sympathies or
union activities.
(b) Discharging, suspending, or otherwise discriminating
against employees for striking or engaging otherwise in con-
certed protected activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Victor Camacho, Francisco Nunez, and Salvador
Guzman immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
suspensions and discharges of Victor Camacho, Francisco
Nunez, and Salvador Guzman, and notify them in writing
that this has been done and that the suspensions and dis-
charges will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Napa, California facility copies of the at-
tached notice marked ‘‘Appendix.’’48 Copies of the notice, in
English and Spanish, on forms provided by the Regional Di-
rector for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, suspend, or otherwise discrimi-
nate against any of you because of your union sympathies or
union activities.
WE WILL NOT discharge, suspend, or otherwise discrimi-
nate against any of you for striking or engaging otherwise in
concerted protected activity.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer Victor Camacho, Francisco Nunez, and
Salvador Guzman immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and other
benefits resulting from their suspensions and discharges, less
any net interim earnings, plus interest.
WE WILL remove from our files any reference to the un-
lawful suspensions and discharges of Victor Camacho, Fran-
cisco Nunez, and Salvador Guzman, and notify them in writ-
ing that this has been done and that the suspensions and dis-
charges will not be used against them in any way.
SAWYER OF NAPA, INC.